Académique Documents
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DISTRICT OF MARYLAND
(GREENBELT DIVISION)
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I. RELEVANT CASES
1) Case No. 04-0-05-000046 FC, CitiMortgage Inc. et. al., vs. Arnold and Cotten,
01/14/2005, Calvert County Circuit Court;
2) Case No. 55-06253-(bk), Docket No. 130, 06/19/2006, in Bk. Case No. 05-13246
TJC, CitiMortgage Inc. is Plaintiff Creditor, vs. Arnold and Cotten, Defendants,
2nd Illegal Complaint to Foreclose & Lift Stay Action filed by CitiMortgage;
4) United States Federal District Court, Case No: RWT 07-2617, (All Consolidated
Cases as Detailed in Case and Party Chronicle Apart this Motion for Relief,
FRCP § 60(b);
All Fraudulently removed cases relate-back to 1st. Civil Case No. 04-0-05-000046
FC, 01/14/2005, and Bk. Adversary Case No. 55-06253-(bk), Docket No. 130,
06/19/2006, and Counter-Complaint, Bk. 06-2056, 12/14/2006, Cotten and Arnold,
“Original Defendants”, Bk. Case No. 05-13246 TJC.
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
I. RELEVANT
CASES…………………………………………………………………..
V. PRELIMINARY
STATEMENTS……………………………………………………
VI. COURTS
JURISDICTION…………………………………………………………...
VIII. ISSUES…………………………………………………………………….
2
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
CLOSURE………………………………
XIII. LEGAL
FACTS………………………………………………………………………..
XVI. JURISDICTION
ARGUMENTS……………………………………………………..
XIX.
VERIFICATION………………………………………………………………………
XX. CERTIFICATE OF
SERVICE……………………………………………………….
3
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
1. Adams v. Administer Defense Servs., Inc., 901 F. Supp. 78, 79 (D. Conn. 1995)
……..
2. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702
951)…
3. Arizonans for Official English v. Arizona, ... 520 U.S. 43, 117 S.Ct. 1055, 1071,
137 L.Ed.2d 170 ... (1997)....Id., 118 S.Ct. at 1012-
13……………………………………..
4. Axel Johnson, Inc. v. Carroll Carolina Oil Co., Inc., 145 F.3d 660, (4th Cir. 1998)
…...
5. Baumlin & Ernst, Ltd. v.Gemini, Ltd., 637 F.2d 238, 242 (4th Cir. 1980)
……………
6. Benson v. State, 389 Md. 615, 653 (2005); Wormwood v. Batching Systems, Inc.,
124 Md. App. 695, 700 (1999)
4
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
………………………………………………………...
7. Broadcast Music, Inc. v. M.T.S. Enters., Inc., 811 F.2d 278, 280 (5th Cir. 1987)
……...
8. Bufalino v. Michigan Bell Tel. Co., 404 F.2d 1023, 1029 (6th Cir.1968)
……………...
California v. LaRue, 409 U.S. 109, 112 n. 3, 93 S.Ct. 390, 394 n. 3, 34 L.Ed.2d
342 (1972)
……………………………………………………………………………….
10. Carter v. Fenner, 136 F.3d 1000, 1006 (5th Cir. 1998)
…………………………………
11.Celotex Corporation v. Edwards, 514 U.S. 300, 313, 115 S. Ct. 1493, 1501,
131 L. Ed.2d 403 (1995)
…………………………………………………………………….
12. Central Laborer's Pension and Annuity Funds v. Griffee, 198 F.3d 642,
644(7th cir. 1999)...………………………………………………………………….
13. Chandler v. Judicial Council of Tenth Circuit, 398 U.S. 74, 86—
88…………………
14. Christian v. College Boulevard Nat. Bank, 795 F.Supp. 370, 371 (D. Kan. 1992)
……..
15.Citizens Bank of Maryland v. Strumpf, 516 U.S. 16, 21, 116 S. Ct. 286, 290, 133
L.Ed.2d 258 (1995)
……………………………………………………………………...
III. CASES CITED, No. 2
17. Compton v. Alton S.S. Co., 608 F.2d 96, 107 (4th Cir. 1979)
………………………….
5
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
19. Dawson v. Orkin Exterminating Co., Inc., 736 F.Supp. 1049, 1050 (D.Colo. 1990)
…...
20. Delta Am. Re Ins. Co., 900 F.2d 890, 892 (6th Cir. 1990)
…………………………
21. Eberhardt v. Integrated Design & Constr., Inc., 167 F.3d 861, 871 (4th Cir. 1999)
…
…………………………..
24. Fajen v. Foundation Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982)
…………….
………………………………………..
27. Front Royal & Warren County Indus. Park Corp. v. Town of Front Royal,
135………
28. Galvez v. Kuhn, 933 F.3d 773, 775 n.4 (9th Cir. 1991)
……………………………..
29. Guas v. Miles Inc., 980 F.2d 564, 566 (9th Cir. 1992)
6
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
………………………………….
30. Healy v. Ratta, 292 U.S. 263, 270 , 54 S.Ct. 700, 703 supra part
II……………………
31. Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1130 (11th Cir. 1994)
…………
32. Heyman v. M.L. Mktg. Co., 116 F.3d 91, 94 (4th Cir. 1997)
…………………………...
34. Insurance Corp. of Ireland v. Compagnie Des Bauxites De Guinee, 456 U.S. 694,
702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982) 456 U. S. 694, 702 (1982)
……….
35. Kelton Arms Condominium Owners Ass'n, Inc. v. Homestead Ins. Co., 346 F.3d
1190, 1192 (9th Cir. 2003)
……………………………………………………………………..
36. King v. Ionization Int'l, Inc., 825 F.2d 1180, 1188 (7th Cir. 1987)
……………………..
37.Kline v. Burke Constr. Co., 260 U.S. 226, 234, 43 S.Ct. 79, 82, 67 L.Ed. 226
(1922)
……………………………………………………………………………………
38. Kocher v. Dow Chem. Co., 132 F.3d 1225, 1230-31 (8th Cir. 1997)
…………………
39. Laughlin v. Prudential Ins. Co., 882 F.2d. 187 (5th Cir. 1989)
…………………………
7
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
40. Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995)
…………………………...
42. Matter of Eugene L. Pieper, P.C., 202 B.R. 294 (D.Neb. 1996)
………………………..
43.Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 326-27 (5th
Cir. 1998)
…………………………………………………………………………………….
44. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278, 97 S.Ct.
568, 571, 50 L.Ed.2d 471 (1977)
……………………………………………………………..
45. National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414
U.S. 453, 465, n.
13……………………………………………………………………
46. New York Life Ins. Co. v. Brown, 84 F.3d 137, 142 (5 th Cir. 1996)
…………………
49.Powder Power Tool Corp. v. Powder Actuated Tool Co., 230 F.2d 409, 414
(7th Cir.1956)
………………………………………………………………………………..
50.Roxbury Condo. Ass’n v. Anthony S. Cupo Agency, 316 F.3d 224, 226 (3d Cir.
2003)
…………………………………………………………………………………….
8
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
51. Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987)
……………………………
52. Russell Corp. v. Am. Home Assurance Co., 264 F.3d 1040, 1049 (11th Cir.
2001)..
53. Scott v. Communications Services, Inc., 762 F.Supp. 147, 150 (S.D. Texas 1991)
…...
54. Schwartz v. United States, 976 F.2d 213, 217 (4th Cir. 1992)
………………………….
55. Secretary of Navy v. Avrech, 418 U.S. 676 , 678 (per curiam)
…………………………
56. Lubben v. Selective Service System, 453 F.2d 645, 649 (1st Cir.
1972………………...
57. Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28
L.Ed. 462 (1884)
……………………………………………………………………………….
58. Moore v. Permanente Med. Group, Inc., 981 F.2d 443, 447 (9th Cir. 1992)
………..
59. Shamrock Oil and Gas Corporation v. Sheets, 313 U.S. 100, 61 S. Ct. 868, 85 L.
Ed.
1214……………………………………………………………………………………
60. Stoll v. Gottlieb, 305 U.S. 165, 171- 72, 59 S.Ct. 134 (1938)
…………………………..
61. Scott v. Communications Services, Inc., 762 F.Supp. 147, 150 (S.D. Texas 1991)
…..
62. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed.
1214 (1941)
………………………………………………………………………………
9
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
63. Snell v. Cleveland, Inc., 316 F.3d 822, 824, 826 (9th Cir. 2002)
………………………
64. Sylvia, 48 F.3d at 819. SUSTAINED 473 U.S. 432, 440 (1985)
………………………
67. Takeda v. Northwestern Nat’l Life Ins. Co., 765 F.2d 815, 822 (9th Cir. 1985)
……….
69. Transamerica Ins. Co. v. South, 975 F.2d 321, 325-26 (7th Cir. 1992)
………………...
71. Wall. 139 West v. Aurora City 73 U.S. 139, 18 L.Ed. 819,
6…………………………..
72. United States v. Daniels, 902 F.2d 1238, 1240 (7th Cir. 1990)
……………………..
74. Victory Carriers, Inc. v. Law, 404 U.S. 202, 212, 92 S.Ct. 418, 425, 30 L.Ed.2d
83 (1971)………………………………………………………………………………..
10
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
77. Waters v. Browning Ferris Indus., 252 F.3d 796, 797 (5th Cir.2001)
………………………
78. West v. Aurora City, supra. See H. Rept. No. 1078, 49th Cong., 1st Sess., p.
1………..
80. Wright, Miller and Cooper, Federal Practice and Procedure: Jurisdiction 3d §3731
(1998) supra, § 3522, at 61-62………………………………………………………
81. Wonder v. Southbound Records, Inc., 364 So. 2d 1173 (Ala. 1978)
………………..
82. Von Dunser v. Aronoff, 915 F.2d 1071, 1074 (6th Cir.1990)………………………
83. Zoren v. Genesis Energy, L.P., 195 F. Supp. 2d 598, 602 (D. Del. 2002)
………….
11
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
FEDERAL LAWS
28 U.S.C. § 455.(a)(b)(1)
28 U.S.C. § 144
404 U.S. § 202, 212,
28 U.S.C. FRCP § 60(b)(2)(4)
28 U.S.C. §1331,§ 1332, §1441(a), §1441 (b), §1446 (b),§1447(c)
United States Constitutional III Amendments § 1, 5 and 14
9 U.S.C. § 12
FEDERAL CONSUMER
15 U.S.C. § 1607(e)(1).4
15 USC § 1611;
15 USC § 1625(B);
15 USC § 1615;
15 USC § 1635(b);
15 USC § 1641;
Reg. Z, Subpart B.
MARYLAND LAWS
12
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
V. PRELIMINARY STATEMENTS
Cotten”, in the above captioned case, and, arising from the initial action filed in Calvert
County Circuit Court, Civil Case No. 04-0-05-000046 FC, declare they are, “Original
Defendants” for removal and other legal purposes in the above captioned case, this case,
and at all times hereto, CitiMortgage Inc. et. al., “(CMI)” are, the “Original
Bankruptcy Adversary Complaint to Lift Stay to Foreclose, Case No. 55-06253, Docket
No. 130, 06/19/2006 of Bk. Case No. 05-13246 TJC, and, Counter-Defense Complaint,
filed by Arnold and Cotten, “Original Defendants” to reply Adversary Case No. 06-2056,
12/14/2006 Counter-Complaint, in Bk. Case No. 05-13246 TJC, see Attached Exhibits,
Docket Sheets in Evidence, ( all attached exhibits are incorporated into this motion by
reference hereafter).
1. “Original Defendants, Arnold and Cotten”, further present reversible error and
abuse of discretion of the courts in dismissal of non-diverse defendant who was properly
served with summons, defendant “Congressional Funding Inc.”, or, “CFI”. The courts in
error during the January 26, 2010, did so on rushed assertions, wherein it was purported
the courts possessed a wanting of subject matter jurisdiction over CFI who purportedly
was in bankruptcy as of January 26, 2010. Those relied on assertions incorrect and were
13
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
incorrect the day of the hearing and caused improper dismissal of Arnold and Cottens
claims against defendants “CFI”. The courts improperly dismissed the causes against
CFI as opposed to rendering due summary judgment for defendants default in answering
the complaint, also an abuse of discretion. The court failed to confirm these facts without
first exercising what would have been considered the usual judicial care, failing to at a
minimum, confirm by PACER CFM Courts system, those ill proffered statements.
Instead the courts dismissed CFI without further proof of the bankruptcy. In contrast,
CFI was never in bankruptcy at all but was merely a party to an action in the bankruptcy
courts, therefore the claims against CFI were improperly dismissed, see Attached
Exhibits, (Pacer Bk. CFM Search of CFI), and is as said, a reversible mistake and error
by the courts, justly due to be corrected by this timely motion FRCP § 60(b)(2) and (4)
as it applies to VOIDS.
2. This Motion to Set Aside for “Void”, FRCP § 60(b)4 - arises out of the
fraudulently removed cases by “(CMI)” and the courts refusal to remand those cases nor
hold a hearing and render ruling as to the courts challenged jurisdiction that which may
be reviewed because Section 1447(d) does not bar review where the remand was based
barred on the issue of attorney fees awarded under § 1447(c)., such fees were wrongfully
awarded in this case. See Waters v. Browning Ferris Indus., 252 F.3d 796, 797 (5th Cir.
2001); In re Delta Am. Re Ins. Co., 900 F.2d 890, 892 (6th Cir. 1990). AND, See e.g.,
14
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Roxbury Condo. Ass’n v. Anthony S. Cupo Agency, 316 F.3d 224, 226 (3d Cir. 2003);
Moore v. Permanente Med. Group, Inc., 981 F.2d 443, 447 (9th Cir. 1992).
3 “(CMI)” initiated all fraudulent removals knowing very well they were never
1441(a)(e).
4. By fact, the initial foreclosure Complaint giving rise to this action, raised no issue
of federal law and was filed by original plaintiffs “(CMI)”in the state Circuit Courts.
5. Established, followed law dictates removal extends only to defendants and not to
plaintiffs and that a federal counterclaims does not qualify as an action “arising under”
and does not extend to those claims, see Shamrock Oil, 313 U.S. at 106; Holmes Group,
Inc. v. Vornado Air Circulation Systems, Inc., 535 U. A party seeking removal bears the
burden of proving their right to removal, “(CMI)” here, failed to carry their burden
forward to the courts, see also in, Steel Valley Auth. v. Union Switch & Signal Div. Am.
Standard, Inc., 809 F.2d 1006, 1010 (3d Cir. 1987); Zoren v. Genesis Energy, L.P., 195
F. Supp. 2d 598, 602 (D. Del. 2002), “(CMI)” could never carry their burden to the
courts because they were not and are still not “True Defendants” who could never
remove.
6. Pursuant to the “Well Plead Complaint”, the rule does not permit a counterclaim
to serve as the basis for the "arising under" federal jurisdiction §1331, exactly as
“(CMI)”, based their fraudulent rights to remove upon as well as relying further on a
15
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
purported “Diversity of Jurisdiction” which candidly, at the time of the removal, never
and still does not exist, see In Holmes, the Supreme Court reiterated the primary reasons
supporting the well settled rules on removal based upon federal claims contained in
contravene the long standing precedents. The courts abused their discretion in
applying the “arising under”, (though “(CMI)”, was barred from removal). The
Courts reasonably found that to allow counter defendants such leave for
defendants and would confer a power upon the defendant that would radically
expand the "due regard for the rightful independence of state governments"
Corp. v. Sheets, 313 U.S. 100, 109, 85 L.Ed. 1214, 61 S.Ct. 868 (1941)”.
7. “The appropriate course [for a federal court] is to examine for subject matter
jurisdiction constantly and, if, it is found lacking, to remand to state court if appropriate,
defendants, a plaintiff who has chosen to commence the action in state court cannot
later remove to federal court, even to defend against the counterclaim, the case here
and now brought correctly on this rule FCRP 60(b)4 Motion. See 14C Wright, Miller
and Cooper, Federal Practice and Procedure: Jurisdiction 3d §3731 (1998). The “well-
established rule is that the plaintiff, who chooses the forum, is bound by that choice
16
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
and may not remove the case.” Scott v. Communications Services, Inc., 762 F.Supp.
8. By law and fact, “(CMI)” could never avail themselves to removal relief from a
counterclaim.”, (the case here in Arnold and Cottens case matters). Metro Ford Truck
Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 326-27 (5th Cir. 1998). The courts abused
their discretion in overlooking the fact A Plaintiff is the “Master of the Claim”, The “well
pleaded”. This removal was ‘improvident as is the case here in this instant matter and
without jurisdiction, see Adams v. Administer Defense Servs., Inc., 901 F. Supp. 78, 79
(D. Conn. 1995) wherein they held ("It is axiomatic that in the usual case, removal can be
and, Conway v. Delgado, C.A. No. 92-0905(JHG), 1992 WL 189428, at *2 (D.D.C. July
21, 1992) (concluding that the parties seeking removal from state court did not have
standing to remove a case in which they were not defendants), like Arnold and Cotten,
home were at all times “the masters of their claims” and were bound to the courts they
had selected, those being, the Circuit Courts of Calvert County. Federal courts have
limited jurisdiction and may only exercise that power prescribed to them by the
Constitution or the United States Congress. See, e.g., Kokkonen v. Guardian Life Ins. Co.
17
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
of America., 511 U.S. 375, 377 (1994). “A Defendant may remove a case which has
originally been filed in state court to a federal district court pursuant to 28 U.S.C. §
1441(a)”, in the alternative, if,…..the district court has original jurisdiction over the
matter“(CMI)” is not a defendant and never was a defendant but is the “True, Original
Plaintiff” and was never vested with removal rights as narrowly granted by law.
10. All actions arouse out of “(CMI)” fraudulent foreclosure actions against Arnold
and Cottens property. “(CMI)” knew by fact and law they were prohibited and barred
from removal because they first, waived their rights in failing to remove then, (though
they were barred), the first affirmative action case, (5th Case No. 04C07000353,
03/20/2007, Calvert County Circuit Courts). “(CMI)” were never “True and Original
Defendants” in the 2 Initial Foreclosure Cases” and are not a party who may avail
themselves to removal options, no matter when nor how or if Arnold and Cottens
11. The courts abused their discretion upon failing to conclude these facts based on
rights. Had the courts not abused their discretion in failing to burden “(CMI)”, the
removing party, to carry their burden onto the courts at the outset of the case and the
behest of Arnold and Cottens objections, the courts would have, and should have,
properly concluded the case was not one that could be removed.
12. Repeatedly Arnold and Cotten stated these case facts, clearly relating them back to
18
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
13. “(CMI)”, deceptively omitted the “Related Cases” from their Case Removal Intake
Forms, doing so with the expressed intent of misleading the courts as these omissions
clearly did mislead the, causing unreasonable reliance on these deceptive forms by the
courts and is an unmistakable knowing fraud onto the courts by “(CMI)” and their legal
agents.
14. In fact, these omissions made by “(CMI)” damaged Arnold and Cotten and grossly
prejudiced them to the courts; notably the Courts Admonished and flogged Arnold and
Cotten in one of their “Orders” “indicating the parties had closed on a loan and then
Arnold and Cotten filed a “plethora of lawsuits”. By fact this was a false and prejudicial
assumption drawn directly by the courts from the “(CMI)” removal case intake forms.
The courts admonishments were that Arnold and Cotten, out of the blue sky, just
randomly and devoid of cause sued “(CMI)”. Had the Intake forms been filled out
correctly by “(CMI)”, the courts may not have been prejudiced but instead would have
realized Arnold and Cotten were defendants and may have valid claims due redress by
way of counter-claims for the injuries sustained by “(CMI)” and, as provided by law,
therefore the courts abused their discretion in drawing these unfounded conclusions
15. Had the courts known of those two initial foreclosure cases in which“(CMI)” was
at all times, the true and Original Plaintiffs, the fraudulently removed cases would have
19
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
been remanded and sanctions should have been rightfully imposed by the courts for such
16. To the detriment of Arnold and Cotten, and for the benefit of “(CMI)”, “(CMI)”,
deceptively omitted from all removal forms their two fraudulent foreclosure actions that
started “the purported plethora of lawsuits”, not Arnold and Cotten as the courts
wrongfully found. “(CMI)” left these “related cases” off of the removal forms
intentionally and with the intent to deceive the courts as they so did, because in providing
the required information, “(CMI)” could not justify any right to remove and in answering
the removal case intake forms factually and honestly, these facts would have been known
from the outset and removal would have and should have been denied. The Court must
sua sponte review all removed actions to confirm that federal jurisdiction is proper. 28
U.S.C. § 1446(c)(4) (stating that the “district court in which such a notice [of removal] is
filed shall examine the notice promptly”); Snell v. Cleveland, Inc., 316 F.3d 822, 824,
826 (9th Cir. 2002) (explaining that a “court may raise the question of subject matter
jurisdiction, sua sponte, at any time”); Galvez v. Kuhn, 933 F.3d 773, 775 n.4 (9th Cir.
1991) (defects in jurisdiction can be raised sua sponte, whether the parties raise the issue
or not). Under 28 U.S.C. § 1441(a), an action must be “fit for federal adjudication when
the case is removed, in contrast to the court's ability to remand sua sponte for procedural
defects upon removal. See Kelton Arms Condominium Owners Ass'n, Inc. v. Homestead
Ins. Co., 346 F.3d 1190, 1192 (9th Cir. 2003) (holding that district courts have no
20
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
authority to remand a case sua sponte for procedural defects), notable however the court
took no action and the wrong action refusing all motions to remand and refusing to
substantiate their subject matter jurisdiction challenges made by Arnold and Cotten, thus
amounting to further, an abuse of the courts discretion and is also a denial of due process
alike.
17. Arnold and Cotten contend the “Original Related Cases”, had they been,
accurately, honestly and candidly disclosed by being listed on the Removal Case Intake
Forms, or, had the District Courts conducted any… reasonable due diligence as mandated
civil litigant parties search in the courts public records inquiry, such searches justly
would have contradicted the frauds being perpetrated onto the courts by “(CMI)”, as
stated and evidenced on the removal forms as clearly had any search been performed, it
would have revealed the incomplete Removal Intake Forms and the extent of the
omissions.
18. “(CMI)”, is not all to blame however for the abusive and overreaching of the
United States District Courts of Beltsville into legal matters in which they had no
jurisdiction authority to preside over. These courts who possessed a binding duty to
examine and verify removal case information to ensure that it was legally and accurately
petitioned with those courts and the courts having a greater due diligence duty in the
removal of cases with that diligence extending well beyond the superficial
21
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
misrepresentations stated by “(CMI)” on the Removal Case Intake Forms provided by the
removing party, “(CMI)”, in their fraudulent attempts to illegally retain the federal courts
jurisdiction. It is established law, the burden of proof lies with the party seeking removal
and that party is charged with the burden of proving the grounds necessary to support
removal, including compliance with procedural requirements, clearly lacking here in this
case now on motion, See Christian v. College Boulevard Nat. Bank, 795 F.Supp. 370,
371 (D. Kan. 1992); Dawson v. Orkin Exterminating Co., Inc., 736 F.Supp. 1049, 1050
(D.Colo. 1990); Laughlin v. Prudential Ins. Co., 882 F.2d. 187 (5th Cir. 1989).
19. The courts abused their discretion in refusing to force “(CMI)” to carry their
burden forward onto the courts. Arnold and Cotten noticed the courts repeatedly they
lacked jurisdiction and that there was no diversity of citizens at the time of removal
because CFI and Martin Dennis both resided in the forum state of Arnold and Cotten,
Maryland. Not even the courts erroneous dismissal of defendant CFI, based on an
erroneously purported bankruptcy filings by CFI, still could never grant onto the courts
plaintiffs, and could never remove the TILA counter claims of Arnold and Cotten).
20. Defendants CFI was never in Bankruptcy and in fact, was properly served with the
complaint. CFI failed to appear nor answer the complaint with a default judgment due to
21. A PACER Court System CFM, public bankruptcy case search shows CFI was
22
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
never in Bankruptcy as of the hearing on January 26, 2010, and the erroneous entry of the
courts Order dismissing the case. Arnold and Cotten could not address this surprise
revelation during the hearing but did expect that at a minimum, due diligence would
prevail and the courts would have at least performed a PACER Courts System case
search, doing so during the hearing as oppose to merely accepting false and
sole intent, just as it did, to mislead the courts and trick an entry of dismissal.
22. The courts err in dismissing the case against CFI in what could appear to be an
attempt to wrongfully extend jurisdiction to the courts, (noting this very notion is flawed
if it were legally factual but, by fact, wrongfully dismissing CFI, still never entitled
“(CMI)” to fraudulently remove any of the cases because they are the true, original
plaintiffs who have been subjected to counter claims and are otherwise not defendants
23. Had the federal courts functioned as statutorily mandated in removal matters,
being courts of limited jurisdiction, they would have demanded the case Removal Intake
Forms be completely and correctly filled out and that “(CMI)” be forced to carry their
burden of right to remove onto the courts, with the courts abusing their discretion in
failing to enforce these statutory mandates and the Removal Statutes be Strictly Applied.
Because there is a presumption against removal jurisdiction, the court must strictly
construe the federal removal statute and resolve all doubt in favor of remand. Fajen v.
23
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Foundation Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982). The courts abused
their discretion in failing and refusing to remand as doubt was correctly raised with
legitimate and timely challenges to the courts standing and “(CMI)” being barred from
24. The District courts abused their discretion in refusing to ensure accuracy in the
removal forms, as mere superficial recitals of statutes and conclusions are not sufficient
reasons do confer nor act to establish legal authority and rights to removal that grant the
Federal Courts Subject Matter Jurisdiction, what was lacking at the entry of the courts
orders in these grave matters and is still lacking and that must be corrected by this motion
25. All Case Removal Intake Forms failed to join all parties to the removing
complaint as mandated and, the courts refused to accept these challenges in error when
they overlooked all of Arnold and Cottens timely, technical and subject matter
removing parties also, see Attached Exhibits, Case Dockets, Arnold and Cottens timely
removal objections to technical removal fatalities with the removals being fraudulent as
correctly and rightfully alleged. See Russell Corp. v. Am. Home Assurance Co., 264
F.3d 1040, 1049, (11th Cir. 2001) and Guas v. Miles Inc., 980 F.2d 564, 566 (9th Cir.
1992). The court refused to remand and refused to defend subject matter jurisdiction
24
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
26. The courts violated Arnold and Cottens “Due Process Rights”, a right to be heard
and to receive redress of their claims in a forum which the law provides, that being their
State Courts; plaintiffs “(CMI)” are barred from removal to federal courts and were the
masters of their complaints. “(CMI)”sued in the Circuit Courts of Calvert County and
were not allowed to remove their counter complaints to the federal courts regardless of
their being named as defendants. The courts abused their discretion in not drawing
reasonable inferences from these facts that were contained in Arnold and Cottens
27. Fact is, all of these things collectively should have put the U.S. Federal District
Courts of Beltsville on a more then reasonable Notice the removals were fraudulent and
defective and that this created doubts that were real and that the courts had a duty to
question, abusing their discretion in refusing to exercise such diligence and definitely
when failing to resolve the matters by remand with the presumption against removal
jurisdiction, the court must strictly construe the federal removal statute and resolve all
doubt in favor of remand. Fajen v. Foundation Reserve Ins. Co., 683 F.2d 331, 333
28. The courts had to conclude at some time and point “(CMI)” was not a defendant
who could avail themselves to removal relief therefore these federal District Courts at all
29. Leaving out the above errors with the removal case intake form and the
25
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
illegitimacy of the fraudulent removals, once the court read the complaint, it would have
become apparent beyond doubt through inferences made in the well plead complaint, the
removing parties “(CMI)”, were not in fact “Defendants” vested with right to remove
because “(CMI)”, was at all times relevant thereto, and is, for removal purposes, the
“Original Plaintiffs”; these party facts, underscore the motivational causes and
considerations for “(CMI)” to fraudulently and knowingly by intention, omit their two
previous illegal foreclosure cases wherein they are the “Original Plaintiffs”, see Attached
Chronology of Cases.
30. Arnold and Cotten present correctly on this motion, in this motion to “Void and
Set Aside” the courts void orders for wanting at all times of subject matter jurisdiction
pursuant to 28 U.S.C. § 1441, plaintiffs may not remove and “(CMI)”, are the true
plaintiffs with no counter claim changing these facts whatsoever. Arnold and Cotten
seek a Demand for Orders of Remand from these Courts because at no time ever, did
these courts obtain or possess jurisdictional authority and lack subject matter jurisdiction
causing this courts orders to be “Void Orders” and are, “Voids” and “Nullities”, ab initio,
at inceptions; as such, Arnold and Cotten are seeking due and just relief from this Courts
31. By law and fact, Arnold and Cotten should have been granted remand of their
cases fraudulently removed, 28 U.S.C. §1447(c). American Fire & Cas. Co. v. Finn,
341 U.S. 6, 71 S.Ct. 534 (1951). In addition, the court can, and should raise lack of
26
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
subject matter jurisdiction on its own motion, sua spontra. See Laughlin v. Kmart Corp.,
50 F.3d 871, 873 (10th Cir. 1995) (“If the parties fail to raise the question of the
existence of jurisdiction, the federal court has the duty to raise and resolve the matter.”).
Sua sponte remand for procedural defects is also permissible in Kansas. See Townsell v.
City of Kansas City, Kansas, Case No. 95-2339-KHV, 1996 WL 225194 (D.Kan. April
12, 1996). This motion to “Void and Set Aside is made Pursuant to FRCP § 60(b)4, for
the courts wanting of Subject Matter Jurisdiction, and at all times relevant thereto, Arnold
and Cotten are the “Original Defendants” as defined by law for Removal Purposes.
32. This Motion to Set Aside, Void and Remand, arises from all Fraudulently
removed Cases from the Circuit Courts of Calvert County by “Original Plaintiffs”
“(CMI)”. Arnold and Cotten, are the “Original Defendants”, see Attached Exhibits,
Calvert County Circuit Court, Civil Case No. 04-0-05-000046 FC, and, Bankruptcy
Complaint to Lift Stay to Foreclose, Case No. 55-06253, Docket No. 130, 06/19/2006, in
Bk. Case No. 05-13246 TJC and Counter-Defense Complaint, Case No. 06-2056,
12/14/2006 Counter-Complaint in Bk. Case by Arnold and Cotten, in Bk. Case No. 05-
13246 TJC.
33. Arnold and Cotten “framed-up” and initiated their counter-defenses against
“(CMI)”, therefore “(CMI)”, knew, at all times they were never a defendant party who
could remove the case to federal courts, regardless of counterclaims raising federal
questions, removal was clearly barred. “(CMI)”, desired to escape liability from Arnold
27
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
34. Jurisdiction is as correct as can be for this motion in as much as this motion is
dealing with the intrusion of the Federal Courts into Arnold and Cottens matters without
35. This court entered its Order on January 26, 2010 and this Motion is being filed on
January 10, 2011, less then one year and as soon as practical, exhausting all other relief.
36. These Honorable District Courts had no authority to preside over the fraudulently
removed cases and abused their discretion in so doing therefore making of their orders as
“Void Orders” that are “Legal Nullities” for the Federal District Courts wanting of
“Subject Matter Jurisdiction” in all Removed Cases and hearing because Arnold and
Cotten are the “Original Defendants” therefore, beyond doubt, Plaintiffs “(CMI)”, lacked
authority to ever legitimately remove any case from the state courts even though they
were characterized as defendants in the counter claims filed by Arnold and Cotten.
“(CMI)”knew they were “not the sort of defendant permitted to avail themselves to
removal”. “(CMI)”, deceptively and fraudulently removed Arnold and Cottens cases,
time and time again from their state courts with the intention to, as it did, cause them
harm, undue delay, frustration and denial of redress and due process and in the forum of
28
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
37. 28 U.S.C. § 1331, to remove a case “arising under” federal law, 28 U.S.C. §
1446(b) provides that the case stated by the initial pleading must, in the first instance, be
removable: Foreclosure was the first case filed by “(CMI)” in the Circuit Courts of
Calvert County and would not have been removable ever by “(CMI)”.
38. Arnold and Cottens counterclaims could never form the basis for invoking
removal to federal court. See also Takeda v. Northwestern Nat’l Life Ins. Co., 765 F.2d
815, 822 (9th Cir. 1985) (“The federal question defendants raise in their counterclaims
does not provide a basis for removal.”). Therefore, although in their counterclaim Arnold
and Cotten assert that Plaintiff “(CMI)” violated federal law, the counterclaims
fraudulently removed to federal courts, (all cases), cannot serve as the basis for invoking
federal jurisdiction, only “True Defendants are allowed to remove” thus defendants
39. The serious problems with “Subject Matter Jurisdiction”, based on the pleadings,
the courts should have recognized their abuse of discretion at some time and immediately
remanded the cases to State court for failure of the complaint to constitute a suit that may
be removed under the 12th Section of the Judicial Act., see, 73 U.S. 139, 18 L.Ed. 819, 6
Wall. 139 West v. Aurora City., December Term, 1867, see See H. Rept. No. 1078, 49th
Cong., 1st Sess., p. 17. “If, in reenacting in substance the pertinent provisions of 12
of the Judiciary Act, Congress intended to restrict the operation of those provisions or
to reject the construction which this Court had placed upon them, by saving the right
29
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
of a plaintiff, in any case or to any extent, to remove the cause upon the filing of a
counterclaim praying an affirmative judgment against him, we can hardly suppose that
it would have failed to use some appropriate language to express that intention.”
40. In Shamrock Oil and Gas Corporation v. Sheets, 313 U.S. 100, 61 S. Ct. 868, 85
L. Ed. 1214, the Supreme Court held that the filing by the defendant in a suit in a State
upon the plaintiff the right of removal, this applies here and must be applied.
41. Appellant courts are to look to the supreme courts words, “Quoted further from
the Court's opinion in the Shamrock case at page 108 of 313 U.S., at page 872 of 61 S.
Ct., 85 L. Ed. 1214”: "Not only does the language of the Act of 1887 evidence the
Congressional purpose to restrict the jurisdiction of the federal courts on removal, but
the policy of the successive acts of Congress regulating the jurisdiction of federal
courts is one calling for the strict construction of such legislation. The power reserved
to the states under the Constitution to provide for the determination of controversies in
their courts, may be restricted only by the action of Congress in conformity to the
Judiciary Articles of the Constitution. 'Due regard for the rightful independence of
state governments, which should actuate federal courts, requires that they scrupulously
confine their own jurisdiction to the precise limits which the statute has defined ."
42. These Courts abused their discretion in presiding over and exercising jurisdiction
they could not gain legally in all illegally and fraudulently removed cases. The power
30
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
reserved to the states [313 U.S. 100, 109], under the Constitution to provide for the
determination of controversies in their courts, and may be restricted only by the action of
Congress in conformity to the Judiciary Articles of the Constitution. Arnold and Cottens
injuries arouse from “(CMI)”, 2 fraudulent foreclosure actions, therefore the case was not
one that the federal District Courts would have had initial jurisdiction over.
43. While this honorable courts orders are “Void” due to lack of subject matter
jurisdiction and cannot make a finding as to these matters, Arnold and Cotten maintain
also these courts misapplied the laws and TILA statutes even going against settled law of
this very court. Arnold and Cotten exercised their extended right to rescind the loan for
material disclosure violations affecting the amount financed, the interest rate, the total of
payments and the cost of the credit disclosures. The evidence is plead in the Complaint
and Evidence Submitted by both parties and is a part of the record, the courts need not
look any further. The record reveals there are unresolved controversies and technical
violations of the “Act” affecting Arnold and Cottens extended rights to rescission with
summary judgment issued in error and not supported by the case file facts and exhibits
entered thereto that clearly support rescission for material disclosure violations was
44. Consumers have an ongoing right to rescind as an affirmative defense and may
seek redress far past the three-year statute of limitations by equitable remedy of
recoupment, a remedy that well exceeds the three-year statute of limitations under
31
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
45. The equitable provisions under TILA allow that rescission may be used as a bases
46. Notably Arnold and Cotten issued rescission within……the three year extended
expressly prohibits the tolling of a specific statute; no prohibition exist for a consumer to
exercise their extended rights to rescission for material loan disclosure violations as
detailed in the appellants 4th amended complaint, rescission being timely at all times
therefore Arnold and Cotten take issue with the uneven, misapplication of the law that of
which is contained in the case file and is free and independent of the case history that is
not needed to draw the same inferences and conclusions of law that will support these
48. Pursuant to TILA Violations 15 U.S.C. 1641, an enforcement action may ensue up
to one year from the date of default of the offending creditor thus making the latest time
appellants could have brought their affirmative counterclaims defense lawsuit being far
49. The courts error in applying case relation back requirements and TILA criminal
32
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
liability statutes to an offending creditor for refusing to rescind the loan and application
of legal remedy requirements available to the offending creditor to seek out an injunctive
order within the same 20 days they are allowed to complete the acts of rescission.
50. Arnold and Cotten at all times relevant thereto the rescission, were willing, ready
and poised to tender, requesting time and again repeatedly payoff statements reflecting
the effects of the rescission, reiterating this was 2006 and mortgage loans were still
readily available to Arnold and Cotten, even though “(CMI)” had destroyed their credit
with fraudulent reporting and illegal collection of a debt not due and owed nor was ever
in default.
51. These Federal courts have abused their discretion when failing to apply the laws
52. The District Courts undermine all faith Arnold and Cotten would hold in the
removed cases and eschewing of the laws just in the removal matters alone yet, the
wrongful application of BK Stay on Legal Claims of the Estate and legal mutilation of
the strict technical requirements of the courts under TILA, the “Act”.
53. The courts have misapplied the laws in the fraudulent removals alone, Arnold and
Cotten have been oppressed and denied additionally their due process and access to
redress in the Courts of their forum, those being Maryland State Courts.
54. Arnold and Cotten were never met by bar to seek out redress for creditor
33
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
violations of “TILA” with no case and record evidencing any such legal facts. The courts
should have been well able to infer from the case record Arnold and Cotten were met
55. The courts further abused their discretion in their continuing to preside over non-
removable State Law Claims and when allowing parties not restrained by strict
intentionally disrupted Arnold and Cottens state case and their litigation.
56. Because the “Order is Void” as a matter of law, Arnold and Cotten are being
detained further by these courts in that not only may Arnold and Cotten seek relief under
Rule 60(b)4, so can the violating defendants should ever they have such whim or need
and therefore such void “Orders” have create uncertainty and undermine the judiciary
system.
57. In the Courts allowing the fraudulently removed cases, the Federal Courts have
traveled well beyond their jurisdictional territory with all “Orders being Nullities” and
“Voids” ab initio.”, the District Court never had jurisdiction over the cases and could not
gain authority because “(CMI)”, was the sort of defendant barred from removal.
58. The U.S. District Courts of Maryland, Beltsville, seems to have willfully engaged
in a method, either freely or for other Political and Judicial Agendas, that is contrary to
34
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
those orders to the Court Mandating Due Process, Equal Access and Equal Application of
59. These District Federal Courts have neglectfully mishandled all fraudulent
removals of Arnold and Cottens cases from their Circuit Courts of Calvert County by
litigants, “(CMI)”,, who failed at all times to meet removal defendant criteria established
60. “(CMI)”, removal frauds rest on the Removal Forms, Court Case Intakes Forms
wherein, “(CMI)”, knowingly Omitted from the Case Removal Forms all “Related Case
Information”, those which include their two illegal foreclosure actions and Arnold and
Cottens Counter-Claims and Adversary Complaint, (Cotten and Arnold are the
61. Arnold and Cotten contend “(CMI)”, sought dismissal of “(CMI)”, Case No. 04-0-
05-000046 FC, CitiMortgage Inc. et. al., vs. Arnold and Cotten, 01/14/2005 and
closed on 01/9/2007, the state court foreclosure claims expanding far and well over one
year after the case was filed therefore another reason as to fraudulent removal, No
Diversity of Parties, and Federal Question, purported to grant right to remove by “(CMI)”
yet not proven to sufficiently grant removal jurisdiction and, most importantly,
fraudulent removals under the guise of “arising under” federal question jurisdiction as
removable.
35
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
62. The District Courts after being put on notice there were more then legitimate
disputes and causes to Arnold and Cottens objections to the fraudulent removals of all
cases by “(CMI)”, and that the courts were on guard, that in their proceeding without
defending first their challenged jurisdiction, they not only exercised powers well beyond
their judicial authority and traveled beyond the courts boundaries, acting to detain by
force and restraint, Arnold and Cotten in these federal courts, denying them from seeking
their due redress in the forum of their choosing, the courts ignored their statutory
mandates that the Removal Statutes be Strictly Applied. Because there is a presumption
against removal jurisdiction, the court must strictly construe the federal removal statute
and resolve all doubt in favor of remand. Fajen v. Foundation Reserve Ins. Co., 683 F.2d
331, 333 (10th Cir. 1982). The courts refused to uphold their judicial mandates here in
these matters.
63. These District Federal Courts exhibited extreme and severe abuses of discretion in
their prejudicial treatment of Arnold and Cotten, when refusing to afford the same and
equal applications of the laws as guaranteed them under law and decidedly gave
preferential treatment of the law “(CMI)” they were not judicially due to receive because
they had knowingly and fraudulently removed the cases, there was no mistake in these
actions whatsoever.
64. As a direct and proximate result thereto, these courts and “Original Plaintiffs”
“(CMI)” have caused, and continue to cause, severe harm, disruption, frustration, and
36
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
insuperable barriers to justice, those which cause further Delay and Loss of Opportunities
justly due the “Original Defendants”, Arnold and Cotten, in their state forum to which
Arnold and Cotten have right to choose, and did so choose their State Courts to bring
their counterclaims in the forum where the claims arouse out of free of harassment, delay
and upset and have reasonable right to rely on equal applications of these laws to their
ends.
65. The Federal Courts would not have had ever “Original Jurisdiction” if the
originating foreclosure case could be or were filed in the U.S. District Courts of
Beltsville, MD, Prince Georges County: The Foreclosure case is an Action by Plaintiffs
“(CMI)”, Case No. 04-0-05-000046 FC, 01/14/2005, Calvert County Circuit Court Case
66. The Competence of the U.S. District Courts discretion in the Fraudulently
Removed Cases is Justly Concerning, Questioned and Challenged by Arnold and Cotten
as these courts proceeded to knowingly trespass on the law by courts who lacked capacity
at all times over the Issues and Parties of the fraudulently removed cases.
67. Congress expressly limited Federal Courts Jurisdictional Powers and especially so
in Removed Cases, realizing the harm that could come out of wrongfully and
fraudulently removed cases from state courts, just as Arnold and Cotten have been
wittingly frustrated, delayed and harmed by this uneven and wrongful application of clear
law.
37
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
68. Congress has long perceived these fraudulently removed cases would acquire a
most grave threat, and that federal courts would usurp state courts' residual jurisdiction
authority, a threat that is very real and is precisely what has occurred here in these instant
matters in which relief from these “Void and Null Orders” is justly being sought out by
69. The Federal Courts abused their discretion in failing to examine continuously their
right to jurisdiction as had they removed political persuasions and discretion and applied
the laws as the courts are charged with such duty with strictness in removal and
jurisdictional disputes, the courts would have had to identify, sua spontra, at some point
and time over the three year plus long period the District Courts wrongfully detained
Arnold and Cottens case and in which Arnold and Cotten were oppressed by the courts
abuse of discretion and detained by the overreaching of these federal courts, as it had to
have become apparent in one of their four amended complaints, Arnold and Cotten were
complaining of injuries sustained at the hands of “(CMI)” and their two illegal
foreclosure actions and that logically speaking, “(CMI)” could not be a Defendant
accorded the legal right to removal ever, how did these Federal Courts get this so very
wrong, or, why did they? The courts clearly abused their discretion in getting these facts
wrong, which is clear however, as a result thereto, lacked necessary subject matter
70. Why were Arnold and Cottens motions never answered and they not afforded an
38
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
opportunity to be heard with the courts prejudicially treating them with a lesser regard
71. The District Courts further abused their discretion in failing to recuse, as it is
apparent these courts have acted in a prejudicial manner when favoring one party so
much that they refuse the duties of their position and refuse to treat parties and laws
equally and fairly in administration upon refusing to defend subject matter jurisdiction as
the courts were required. This type of judicial abuse and overreaching is exactly what
Congress sought out to stem and protect their citizens against, Arnold and Cotten here in
these matters.
72. The courts abused their discretion in determining their Subject Matter Jurisdiction
as for fact and in particular to Removed cases, those which mandate a greater care of
handling by the courts; it appears the courts shrugged off their duty to investigate,
refusing to venture beyond the exterior, shallow and superficial surface of “(CMI)”, Case
Intake Forms, something these courts possessed a binding duty to ensure care be
exercised in removals based on superficial proffers and incomplete forms, all justly
challenged by Arnold and Cotten timely pleads in addition to their pleads to wanting of
Subject Matter Jurisdiction of the Courts, the courts denied Arnold and Cotten equal
treatment of the law, due process, redress, and equal access to the courts, violating their
73. The courts possessed a much greater burden upon removal, a duty to go beyond
39
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
the superficial surface of words, recitals of statutes, conclusions of law on the Case
Removal Intake Form and were to exercise judicial prudence and due diligence, that
would guide them to journey to the ends necessary to establish their jurisdiction beyond
doubt; as such, the courts failed to investigate omitted facts by the removing party
“(CMI)”, and accepted in error these recitals of statutes, words and statements of
74. “(CMI)”, clearly did not carry their burden to remove onto the courts and the
courts clearly ignored “(CMI)” infirmed removal statements as legal facts, “(CMI)”, was
never a defendant who could remove and in their omitting the related cases and
foreclosure cases, by actions of these frauds, gained access to the Federal Courts they
75. None of the deficient Removal Forms identifies the cases related, the two
foreclosure cases that are, and remain, the nexus of Arnold and Cottens injuries as do
their TILA injuries and other well plead consumer injuries alike.
76. Had the courts read the complaints in the proper light and examined the case
records, it would have concluded some three years sooner, the removals were fraudulent
because “(CMI)” was not a defendant who could avail themselves to Removal Remedies
that raises questions as to exactly why “(CMI)” and their legal agents not know these
material facts and how did the courts miss case inferences as to these facts plead?
77. These grave material facts then must rationally draw into question exactly what
40
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
the federal courts are attempting to accomplish in their acts of judicial defiance as to
established black letter law; one may reasonably infer by their actions contrary in the law,
the Federal Courts may possess other agendas such as political and judicial agendas that
decidedly happen to rest outside the alignments with the Maryland and United States
Supreme Courts Laws governing Removals and Mandated Limitations placed on Federal
Courts Jurisdiction.
78. Throughout the whole of these matters and thru even the appeal process, Arnold
and Cotten have justly challenged the federal courts lack of subject matter jurisdiction
and that, all, these challenges have gone unanswered to this very day and in stark contrast
of exactly what is not suppose to happen in cases that are fraudulently removed and in
which a party justly challenges the courts Standing Orders of Removals as Cotten and
Arnold so did repeatedly and do now yet still, the cause of their valid Motion to Void and
79. The District Courts pushed their jurisdiction onto Arnold and Cotten when by law
and fact they had no right to exercise any jurisdiction at all over the parties and the issues
raised in the fraudulently removed cases and had they not abused their discretion, and,
had they afforded Arnold and Cottens motioned hearings, it is thought jurisdictional
issues could have been resolved three years sooner and at a far less cost to Arnold and
Cotten.
80. The District Courts have acted in a manner so as deny constitutional redress rights
41
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
and have burdened Arnold and Cottens fundamental rights under their constitutional
Amendments 1, 5 and 14 and have exercised a jurisdiction denied those federal courts by
the clear and unambiguous Supreme Courts Removal Case Laws followed to date in
81. The courts must sustain constitutional protections and equal application of the
82. The federal courts are courts of limited jurisdiction for very good concern of
federalism that which is real and present when a court attempts to further agendas
whether those be political and or judicial agenda matters, pushing them onto states and
their citizens for who they do not have such authority or right over, exactly what has
83. Arnold and Cotten are under consumer protection classification of citizens and
maintain the federal courts must sustain those laws as opposed to flouting these laws and
mandates when acting without authority in attempting to modify, alter and exceed
judicial rights these courts never possessed by clear, applied and followed law.
84. The federal courts in their overreaching have overlooked the applied rational basis
of scrutiny, which presumes the Consumer protection and debtors rights under the laws
(Arnold and Cotten are Consumers), and are rationally related to a legitimate state
interest."
42
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
85. Such a classification of Citizen, as does in TILA, Bk. and the Fraudulent
Removals, may appear on the face of the legislation or may be demonstrated by the
plaintiff to have been intentionally utilized in the government's administration of the law.
See Sylvia, 48 F.3d at 819. SUSTAINED 473 U.S. 432, 440 (1985) (citations omitted);
see Front Royal & Warren County Indus. Park Corp. v. Town of Front Royal, 135 F.3d
86. The legislation must be sustained "if there is any reasonably conceivable state of
facts that could provide a rational basis for the classification." International Science &
Tech. Inst. v. INACOM Communications, Inc., 106 F.3d 1146, 1157 (4th Cir. 1997)
(quoting Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir. 1996)). These mandates were
ignored, pushed to the side and and overlooked by these federal courts. See Case
VIII. ISSUES
87. Arnold and Cotten declare their rights to obtain redress and a rendering of due
process of their claims and injuries sustained at the hands of the offending removing
plaintiffs and as a proximate result, have a right to expect these claims will be heard by
an impartial and unbiased court of law, and by a fact finder who is disinterested and
possesses free of conflicts all and any duties owed to either party.
88. The District Courts September 12, 2008 Multiple Case Disposition Order, see
43
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
ever carry the courts burden forward in proving jurisdiction explanations upon refusing to
establish proof of subject matter jurisdiction, the District Courts never had and could
never have acquired jurisdiction due to the removing party, “(CMI)”, not being a class of
“Original Defendant” allowed to avail themselves by law to removal relief, as such, the
courts abused their discretion in refusing to hear and ignoring these legal facts.
89. In eschewing the Federal Courts duties as to just challenges to Jurisdiction, the
courts, 1) failed to apply the law fairly and equally as guaranteed by law, 2) denied
Arnold and Cotten their right to redress of their injuries in the forum of their state court
and dong so free from vexatious, expensive disruption to the litigation, 3) denied equal
access to the courts and 4) abused its discretion in so doing all, with which resulted in
misapplication of Established Laws of the Supreme Court Removal Rulings and Dictum
otherwise would not have and could not have attained by any legal means, what has
occurred here and must be corrected by an “Order to Set Aside as Voids and Remand of
91. Federal courts are known to seat themselves in matters in which they lack
44
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
and the doing of the peoples work but in the courts own agendas, those which congress
has vowed to protect citizens against in limiting those federal courts powers and
92. A watchful eye must be lent at all times to protect against those Federal Courts of
limited jurisdiction from their overreaching tentacles, traveling beyond their granted
boundaries, just as they have done in these very same matters regarding Arnold and
93. The Federal Courts have acted in a manner consistent with overreaching, doing so
without legal compass nor sight. One must infer the courts cause and interest in
proceeding in matters in which they lack clear jurisdiction is not one associated to the
works of those courts citizens, the people. Arnold and Cotten make a more persuasive
augment in favor of the appearance that these Federal Courts are operating in a more
Political and Judicial manner then one that is Just and Legal in these matters.
94. Arnold and Cotten maintain the District Courts have overstepped their judicial
boundaries as is the case with the U.S. District Federal Courts of Beltsville, and, is,
exactly why Congress restricted the powers of federal Courts as to jurisdictions, for fear
they could wrongfully attempt to exercise for political and or other judicial agendas such
as “Tort Reform by Force”, in exercising power over people and property they are not
entitled to, exactly, sadly what has occurred in this instant case.
95. Congress intended to protect the public from Federal Courts with Overreaching
45
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Political and Judicial Agendas by enacting the limiting powers of federal courts, and thus,
limiting federalism.
96. These limitations were put in place by congress to protect citizens from a courts
political and or other like judicial agendas which do not embody the laws and United
Due Process and Legal Redress under the 1st, 5th and 14th Constitutional Amendment
Rights.
97. The U.S. District Court Case No. RWT 07-2617 was by far not the first civil case
fraudulently removed and should not have been regarded in the determining of any bar
dates, or for like purposes however remarkably, the federal courts lacked capacity to ever
make any findings of merit because they are not courts of competent jurisdiction for
wanting of subject matter jurisdiction and therefore are trespassers on the law.
98. The federal courts lacked Subject Matter Jurisdiction over state law counterclaims
and cases, the initial foreclosure action of Plaintiffs “(CMI)”, Case No. 04-0-05-000046
FC, 01/14/2005, Calvert County Circuit Court, therefore acting at all times beyond their
powers in their continued attempt to enforce the “Void Orders” and, the undue exercise
of restraint caused onto Arnold and Cottens personal jurisdiction that could not be
otherwise attained by those federal courts because “(CMI)” was and could never be a
defendant who could remove and was not allowed to escape liability of Arnold and
Cotten in their state court forum for injuries exacted against Arnold and Cotten in their
46
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
plaintiffs, those being, the originating cases along with the subsequent affirmative
99. As evidenced in a long line of Supreme Court Cases, the supreme courts have
may not ignore correct challenges in an attempt to exercise personal jurisdiction first, that
which is, and forever remains dependant first on the courts Subject Matter Jurisdiction.
The Federal Courts never could have had, and could not attain by any means except fraud
and oppression, (exactly what occurred here), Subject Matter Jurisdiction. “(CMI)” is
not being the type of defendant vested with the rights to remove.
100. The federal courts in their abusive overreaching have disrupted the otherwise
efficient administration of the state courts and Arnold and Cottens case and while
were timely and made, the court refused to remand), Subject Matter Jurisdiction can
never be waived and must be promptly defended by the court who is challenged, by
statutory mandates, the Removal Statutes are to be Strictly Applied. Because there is a
presumption against removal jurisdiction, the court must strictly construe the federal
removal statute and resolve all doubt in favor of remand. Fajen v. Foundation Reserve
Ins. Co., 683 F.2d 331, 333 (10th Cir. 1982). The courts abused their discretion in
47
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
101. The U.S. Federal District Courts have proven themselves incompetent courts of
jurisdiction in these matters upon presiding over matters in which reasonably their
jurisdiction was properly, timely and continuously challenged but yet never defended
102. A court of competent jurisdiction is a court that does the work of its people and
applies the laws of the land equally and fairly. Decidedly correct because, another Court
would not have reached the same conclusions of law as did the District Federal Courts in
these matters when getting it so wrong upon eschewing justly challenged objections to
the courts Standing Orders of Removals, and in allowing the fraudulent removals to
remain in their courts when they had to know the removals were illegal and fraudulent as
per the case pleadings in objection and the courts refusal to defend and account
vigorously against challenges to the Federal Courts Subject Matter Jurisdiction and
103. It appears the District Federal Courts have taken the notion Subject Matter
Jurisdiction may be waived, even though it flies in the face of well established removal
law that dictates precisely, defendants such as those like “(CMI)” are not “Defendants”
who may avail themselves to removal, why were they granted removal rights wrongfully
by these courts and allowed to upset, disrupt and interfere with Arnold and Cottens
48
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
104. In fact, the legal ends and conclusions of the Federal Courts overreaching is that
they are trespassers onto jurisdictions, laws and parties for want of “Subject Matter
Jurisdiction”; only a defendant may remove a case to federal courts, Arnold and Cotten
are the true Defendants who filed their Counterclaims in the state courts and had right to
expect they would not be disturbed by vexatious litigants fraudulently removing their
unfortunately attacked defendants they were not. The courts feed into “(CMI)”
deceptions and even attacked Arnold and Cotten accordingly in their admonishments as
to Arnold and Cottens purports to “filing a Plethora of lawsuits”, implying that “(CMI)”
were victims when in fact the opposite was fact. What is worse, “(CMI)” was allowed to
continue these fraudulent removals at the objection and expense of Arnold and Cotten.
105. The Federal District Courts had no legal right to proceed first to the findings on
merits and will be denied all illegal takings of authority exercised in traveling well
beyond their boundaries of jurisdiction, acting beyond their power. Fact remains, the
District Court was without authority and jurisdiction when it entered its “Void Orders”.
106. By established and followed Supreme Court Law and Cases involving removal
challenges to “Subject Matter Jurisdiction” are accorded a unique status. See, e.g.,
49
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Insurance Corp. of Ireland v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 702,
102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982) ("[N]o action of the parties can confer
subject-matter jurisdiction upon a federal court."); California v. LaRue, 409 U.S. 109,
112 n. 3, 93 S.Ct. 390, 394 n. 3, 34 L.Ed.2d 342 (1972) (parties may not confer subject-
matter jurisdiction upon the court by consent); American Fire & Casualty Co. v. Finn,
341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951) (principles of estoppel may not be used to
confer subject-matter jurisdiction on a court that would otherwise lack it). Unlike
other issues not involving the merits of a case, subject-matter jurisdiction may be
raised at any time, by any party or even sua sponte by the court itself. Von Dunser v.
107. Wherein a case is purportedly tried on the merits, and the federal district court
enters judgment, the issue of subject-matter jurisdiction is cognizable upon appeal. Von
Dunser, 915 F.2d at 1074; the appeals court evaded their duty alike to find correctly
Original Plaintiffs, who became counterclaim defendants, “(CMI)”, were not defendants
permitted to remove and who in no way could avail themselves to the remedy relief of
removal.
108. Because this federal court refused to remand and refused to accept timely
challenges to all fraudulent removals and subject matter jurisdiction, this court has
authority to review under abuse of discretion De Novo for the courts refusal to remand
and accept the authority of their position, that which does not lend validity to actions and
50
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
hearings that were “Voids” “ab initio” and cannot be corrected by an “Order” nunc pro
109. The other jurisdictional challenges were bar for failure to remove, (though
removal not permitted, “(CMI)” did not remove timely also), for the lack of diversity
jurisdiction, facts also alleged by Arnold and Cotten yet ignored by the District courts,
and new evidence CFI was never in bankruptcy at the time of the hearing on January 26,
2010, therefore dismissals was in error and must be reversed and all cases be remanded to
state courts.
110. While these matters are moot because the federal courts lacked jurisdiction to
entertain their orders, the district courts wrongly applied established bankruptcy law
when looking past the fact “a bankruptcy filing automatically stays ‘any legal act to
obtain possession of property of the estate or exercise control over property of the estate,’
and ‘any act to collect, assess, or recover a claim against the debtor which arose before
the commencement of the case[.]’” Citizens Bank of Maryland v. Strumpf, 516 U.S. 16,
21, 116 S. Ct. 286, 290, 133 L.Ed.2d 258 (1995).1 The automatic stay is triggered by the
51
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
act of filing a bankruptcy petition and the “Order for Relief” by the court, (not an order of
Discharge), see Matter of Eugene L. Pieper, P.C., 202 B.R. 294 (D.Neb. 1996).
111. The debtor and or creditor will be returned as much as possible to “Status Quo”
upon either three events, Dismissal, Discharge or Closure of Case, until one of these
events occurs, the United States Bankruptcy Court maintains complete control of the
112. The District Courts wrongly applied none Bk. law statute of limitations as to
claims of the estate, the timely Counterclaims filed by Arnold and Cotten by way of their
December 14, 2006 Adversary Complaint against Plaintiff Creditors, “(CMI)”, see
52
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Attached Exhibits, Bk Docket evidencing Plaintiffs “(CMI)”, the filing of their second
fraudulent foreclosure and Motion to Lift Stay and Cottens answer wherein Cotten filed
his Counterclaim Adversary Complaint and framed up and executed his “Defensive
Defendant Complaints”. The courts were apprised as the record was replete with these
facts by way of pleadings, motions, the complaint yet, the courts ignored these facts and
all indications pointing to “(CMI)” not being a defendant allowed to remove their counter
claim defenses to federal courts, how and why did the courts get this so wrong?
113. The court misapplied the law regarding consumer actions against TILA Violations
of the “Act”. Arnold and Cotten had one year from the date of creditor, “(CMI)”, Default
under the “Act” by the offending Creditor in which the injured consumer may file a
complaint for violation of the “Act” TILA. In this instance the violating creditor,
(“(CMI)”), refusing to rescind the loan or, in the alternative, seek out an immediate
Injunctive Order of Determination by the offending creditor. A creditor who does not
114. “(CMI)” violated the “Act” in their refusal to rescind and while they sent a boiler
plate letter of denial to Arnold and Cotten on August 23, 2006, the bases for their denial
was patently frivolous and misplaced as properly rebutted presumptions to these facts
were properly plead in Arnold and Cottens 4th Amended Affirmative Defense Complaint
53
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
115. Applying the none bk. laws of tolling: Arnold entered Bk on 2/14/2005 - all
defenses and legal actions vested to the estate controlled by the courts pursuant to the
estate created and managed by the courts pursuant to 28 U.S.C. § 157, Estate Matters.
The Bk. case was closed on May 29, 2007, see Attached Exhibits, Bk. docket sheets.
116. Cotten and Arnold had one year from May 29, 2007 to file their Violation of TILA
permitting the relating back to the initial action filed within one year of the violation.
The courts make no distinction between three years and one year right to bring the action
for violation of the “Act”. “(CMI)” violated the “Act” on August 23, 2006 upon refusing
to rescind. The record shows three actions were filed; the first on December 14, 2006,
the second on March 20, 2007 and the third on August 6, 2007. All actions timely filed
and all amended complaints should have as plead in the complaints relate back to these
118. The Bk and Maryland Court Records uphold Arnold and Cotten timely filed their
119. Cotten and Arnold filed their first Defensive Counterclaim complaint just over
three months later on December 14, 2006, more then well within one year of the violation
with public evidence in contradiction the courts misapplication of the law, and same
54
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
findings also found in the case records as this was a summary judgment hearing, no fact
finding was conducted and the prima fascia evidence as to “Material Disclosure
Violations” submitted with the complaint supports. The court acted without authority in
refusing to find the non-disclosure of PMI was a material violation affecting interest
charges, interest, amount financed and total of payments as was the failure to properly
disclose the payment schedules was also a Material Disclosure Violation with the courts
120. All amended complaint actions related back to “(CMI)” initial fraudulent
foreclosure actions and again to Cottens December 14, 2006 Affirmative Defense
Adversary Complaint filed in the Bk. Case. Just because “(CMI)”, did not press on with
their fraudulent foreclosure actions after being served with Arnold and Cottens
Counterclaims, this is not a grant to removal rights to the “Original and True Plaintiffs”.
“(CMI)” is the Plaintiff for removal purposes and were never a qualifying defendants
under established removal case law, and were barred from ever removing.
121. The stay is effective upon the filing of the petition even though the parties have no
notice of its existence. In re Scott, 24 B.R. 738 (M.D.Ala. 1982). The automatic stay is
broad in scope and applies to almost every formal and informal action against the debtor
or property of the debtor, except as set forth under 11 U.S.C. § 362(b). 2 Lawrence P.
122. The Federal District Courts declined to apply equitable tolling statutes, (though
55
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
none need be applied as Arnold and Cotten were well within their bar dates), to the filing
of the bankruptcy on February 14, 2005 and the Closing of the Case on May 29, 2007,
this uneven application of established law is in error because all statute of limitations that
are non-bankruptcy law statute of limitations were merely paused during the pending Bk
case (except for Tila Rescission, the action of rescinding is a statute of repose and was
timely exercised. Rescission was Timely and not the issue), and resumed upon the May
29, 2007 Final Dispositional Order closing Arnolds Bk. case with the courts release of
the debtors estate property, Cottens interest alike, because their interest was at all times
joint and because Cotten was also a creditor under Title 11.
123. The courts refused to apply TILA law in bringing of the action and instead applied
bankruptcy statute subject to the stay while Arnold was in Bk. and therefore was tolled
124. Applying the tolling statutes in accord to followed settled federal law that
equitable tolling will be read into every statute unless the law specifically states contrary;
there was no need to toll the statute of repose requiring Arnold and Cotten rescind within
the 3 years allowed them; they clearly rescinded timely so, the only tolling that was not
applied was the general limitations period and as presented in the 4th Amended
Complaint and in the record accord, Arnold and Cotten did not have to bring their first
enforcement action against Plaintiffs “(CMI)”, until at the very earliest, February 8, 2008;
56
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
they brought their Counterclaim complaints first on December 14, 2006 and again on
March 20, 2007, with these cases and the initial foreclosure actions of “(CMI)”,as
Relation Back to Cases, what did the court miss here and how did they grossly misapply
125. Arnold and Cotten, framed up and executed Counterclaims as true defendants that
could not be removed to Federal Courts as they fraudulently were, and in which the
federal courts have presided over said matters without jurisdictional authority and right.
126. The District Courts wrongfully applied the laws in contradiction to settled law
cases to the contrary in both TILA and BK case matters as well as removal matters as
plead.
127. Worse case scenario, Arnold and Cotten have TILA claims in Recoupment.
128. Arnold and Cotten timely rescinded within the extended three year statute of
limitations, the loan closed on September 15, 2003 and Cotten rescinded on August 7,
2006, in defense to “(CMI)”, second illegal foreclosure action with notice of rescission
issued by Arnold and Cotten for “Material Disclosure Violations” as plead in Arnold and
129. “(CMI)”, failed to seek out an injunctive order to determine the validity of their
objections to the rescission therefore is estopped from any such creditor defenses, see
57
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Supra, National Consumer Law Center, 5th Edition, Truth in Lending Series, The
Consumer Credit and Sales Legal Practice Series, plaintiffs “(CMI)”, never sought out an
130. The Courts abused their discretion in application of the law as there was never a
bar to Arnold and Cotten bringing their Counterclaims timely and within statute,
reminding the Court, see Case No. 06-2056, 12/14/2006 Counterclaim in Bk. Case by
Arnold and Cotten, “True Original Defendants” Adversary, Bk. Case No. 05-13246 TJC.
131. Plaintiffs “(CMI)”, are in knowing violation of “TILA The Act” and the
132. The courts erred in refusing to apply TILA technical requirements to violations of
the “Act”.
133. Arnold and Cotten argue the courts wrongfully applied TILA Criminal Statute
Violations for Willful and Knowingly Violating TILA, refusal to rescind and issuing and
giving misleading material disclosures constitutes knowing and willful violations of the
134. Plaintiffs “(CMI)”, and their willful refusal to rescind, and knowing reliance on
materially defective disclosures they knew were materially altered and forged as they had
altered and forged these documents themselves and thus, these very disclosures were
58
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
never given.
135. Arnold and Cotten provided prima fascia evidence of fraud and deed forgery and
fraudulent knowing of disclosure violations yet the courts ignored these facts also. The
the violating creditor is supposed to be unable to avail themselves to any such creditor
defenses whatsoever. The District Court abused their discretion in allowing any such
arguments under the strict mandates of “TILA” and the creditors mandatory compliance
subsequent rulings of these very courts and of the Supreme Courts with the District
courts refusing to apply established TILA and BK laws as this case record clearly and
establishes and proves with the laws being applied unevenly and unfairly in this case and
these matters.
136. Another court most assuredly would have recognized as plead in the 4th
Amended, Well Plead Complaint, Arnold and Cotten were forced to rescind the loan in a
defensive action in reply to “(CMI)”, and their two illegal foreclosure attempts, yet and
the courts abused their discretion when ignoring these case facts.
137. Because “(CMI)”, 2 illegal foreclosures disclosed loan terms that were in direct
contradiction to sums disclosed and paid “(CMI)”, and their illegal misapplication of
more then timely mortgage payments, Arnold and Cotten rescinded when they discovered
59
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Disclosure Violations” affecting interest rate, amount financed, total cost of credit and
payment schedules and contradicting documents and disclosures thereto that had been
138. Arnold and Cotten had a three-year extended right to rescind until September 15,
2006, for material disclosure violations correctly plead in Arnold and Cottens 4th
Amended Complaints and that those causes relate back to the foreclosures and
139. Enforcement actions for violations of the “Act” make no distinction in calculating
the year statute in 1 year or 3 year actions because it is the creditors actions or inactions
that causes “the violation of the “Act” with the action beginning to accrue for the first
time upon the creditors violations. Hence, anytime a creditor violates the Act or
continues to violate the Act, the consumers right is ongoing and any creditor who refuses
to uphold the “Act” is in violation of the “Act”, so how did the Federal District Courts
get this so wrong also? The complaint contained well plead facts in support of these facts
140. Another Court would clearly recognize Arnold and Cottens rights by mandate to
foreclose and, in particularly, under TILA, Regulation Z. Subpart B and fair credit and
billing act, when a creditor is claiming interest, loan alterations and charges and a default
not legally due and owed, facts in Arnold and Cottens case.
60
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
141. The offending Creditor pursuant to National Consumer Law Center, 5th
Edition, Truth in Lending Series, The Consumer Credit and Sales Legal Practice
Series, Supra 6.9.5.1 Vesting of Ownership in the Consumer If the Creditor Does
Not Accept Tender. 142. “(CMI)”, only needed to provide a payoff balance
reflecting the affects of rescission and therefore is a creditor who refuses to knowingly
and willingly carry out any section or provision under Regulation Z, Subpart B, of “the
Act”, such creditor is therefore denied and estopped from making those counter-defenses
143. TILA is self regulating and to force consumers into court to attain redress due by
the violating creditors was never envisioned by congress because creditors are mandated
and expected to comply with all provisions of the “Act”, these were voluntary solutions
the credit industry sought out as opposed to more extensive and stringent regulation and
144. “(CMI)”, was estopped and not allowed to make any defenses yet the courts failed
to apply the law equally and fairly noting that even the slightest technical violation of the
“Act” is met with harsh an severe consequences to the offending creditor; these laws
were meant to deter creditors from Knowingly and Willfully violating the “Act”, not
encourage and enable them as is the case here in these very sad and grave matters.
145. The District Courts ignored the well plead violations and prima fascia evidence of
material violations contained in the 4th Amended Complaint and contained in the
61
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Exhibits with there being more than sufficient evidence disclosures were materially
deficient, misleading and deceptive as they relate to the true cost of the loans interest,
cost, payments and amount financed. The District Courts instead attempted to hide
behind a purported bar statute that further fails in law, fact, argument and merit, as
detailed above and herein. All subsequent actions flowed from the initial foreclosure
actions and Arnold and Cotten were and are the “True, Original Defendants” who
brought their initial Counterclaim complaint in just over three months of the offending
creditors violation of the “Act” pursuant to 15 U.S.C. 1640, for just cause of “(CMI)”,
refusal to rescind and refusing yet further Arnold and Cottens many attempts to Tender
while refinance mortgages were readily available even though “(CMI)”, had destroyed
their credit fraudulently, they still were able to locate a refinance loan programs in 2005-
2007.
146. A violating creditor of the “Act” comes with no defenses in hand. The offending
Lending Series, The Consumer Credit and Sales Legal Practice Series, Supra 7.5
therefore “Material Violations” were correctly plead by Arnold and Cotten with specific
enough detail in the 4th Amended Complaint as well as there was sufficient evidence to
prove Arnold and Cotten, rescinded the loan within the three year extended right period
also and did so in Counterclaim of “(CMI)”, in reply to their 2nd fraudulent foreclosure
62
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
actions.
147. The federal courts overlooked the fact Cotten and Arnold stated and correctly
plead their action that was for “Violation of “TILA” the “Act” and offered sufficient
evidence in support, i.e. the four first payment letters documenting conflicting disclosures
of the first payment amounts due, the charging of PMI that was never disclosed on the
Good Faith Estimates or HUD-1 and all violations plead in the 4th Amended Complaint
148. The loan transaction was one wherein Arnold and Cotten relied to their detriment
on false and misleading disclosures causing them to cancel an already closed loan to
accept the “better loan terms proffered” but not honored by the Loan Originator.
149. Arnold and Cotten framed up their Counter-Affirmative Defenses in both illegal
foreclosure cases.
150. To the extent tolling is to be applied to the federal mandates requiring the liberal
otherwise by law, (no prohibitions exist in Creditor Violation Actions Under 15 U.S.C.
1640), with no distinction given to an action brought in one year or three years or upon
creditor default as was and is the case here in these case matters for violation of the Act
as it is the act of the Creditor Refusal to Carry Out their mandates in Knowingly
Violating the Act by refusing to uphold TILA mandates, therefore Violating TILA, “the
Act”, not the matter on which the violations were based, in this instant case the
63
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
“Misleading and Defective Material Disclosure Violations”, but their refusal to carry out
the acts of rescission those plead in detail in Arnold and Cottens 4th Amended Complaint
151. Disturbingly there was a finding that the TILA violating creditors who refused to
rescind a timely issued extended right to rescission, was entitled to protections of the
District Courts; in fact, the case evidences contrary, exhibiting “(CMI)”, creditor defying
the “Act” Knowingly and Willingly in refusing to seek out an injunctive order within the
rescission period time allotted the creditor, 20 days by law, or to carry out their duty to
Rescind the Loan and Tender the Mandated Sums by way of the payoff statement, how
did the courts get this wrong and why did they get it so wrong?
152. Arnold and Cotten sought out an adjusted payoff statement reflecting the effects of
the rescission so they could obtain loans they had secured in ready to tender however
“(CMI)”, refused to provide a payoff statement reflecting the effects of the Rescission,
therefore these creditors were in knowing violation at all times hereto and remain in
violation of the “Act” refusing to rescind and file the canceling documents as they were
mandated to do.
153. “(CMI)”, has by fact waived any right to a Creditors Defense, see Supra, 7.5
154. A rebuttal presumption was clearly plead in the complaint wherein Arnold and
Cotten alleged they did not receive the disclosures and that the signatures had been
64
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
applied by forgery post closing of the loan and not by their hand, these facts which are
clearly laid out and are legitimate and correct presumptive rebuttal arguments were
155. Arnold and Cotten were always able to establish detrimental reliance on the loan
disclosures, as plead in the complaint, because the disclosures clearly were deceptive at
all times failing to disclose the real loan offered and the true interest rate, amounts
payments and cost, in which the consumers correctly moved to cancel the loan in
2006 when they issued their Extended Right of Rescission Notice to “(CMI)” who
patently refused to Rescind as mandated under law, they were and remain in willful and
knowing violation of TILA mandates as is also this court is also in their refusal to
administer and apply these laws as intended by congress, no liberal application mandates
156. CFI’s agent never appeared in the Summary Judgment hearing and the courts did
not verify CFI was in fact bankrupt when, by law and fact, CFI was not bankrupt and
157. This unwarranted dismissal appears to be a possible cure to the supposed diversity
of citizen defect, not that it applies here at all because “(CMI)”, is not a Defendant that
may be availed to removal relief. This sustains Arnold and Cottens timely challenges to
“Subject Matter Jurisdiction” and correctly placed opposition to the Plaintiffs “(CMI)”,
65
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
fraudulent removals.
158. In summary, the United States Federal District Courts of Beltsville trespass upon
the Law and Act this Courts Jurisdictional Powers with Knowing Usurp of the Maryland
State Courts Powers and these limited jurisdictional federal courts powers in this court
acting in a manner that is beyond their powers and contrary to established rulings
regarding Removals, and Government Mandates under Req. Z. Subpart B, TILA and Bk
159. When a federal court acts outside their statutory rights of “Subject-Matter
power”.
160. This case wrongfully found its way to the United States Federal District Court of
“(CMI)”.
161. “(CMI)” became Counter-Defendants when Arnold and Cotten filed their second
defensive counterclaim complaint in their Circuit Courts of Calvert County. for “(CMI)”
Illegal Foreclosure Actions, TILA and Illegal Collection of a Debt and other related
claims.
162. Arnold and Cotten framed up their Counter-Affirmative Defenses in both illegal
foreclosure cases, see Attached Exhibit, Foreclosure Case History and Bk Docket
66
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
reflecting Plaintiffs “(CMI)” Notice to Foreclose and Motion for Relief From Stay Case
No. 04-0-05-000046 FC, 01/14/2005, Calvert County Circuit Court and “(CMI)” Motion
to Lift Stay to Foreclose, Case No. 55-06253, Docket No. 130, 06/19/2006, in Bk. Case
No. 05-13246 TJC, “(CMI)”, is Plaintiff Creditor, AND, Case No. 06-2056, 12/14/2006
in Bk. Case, Arnold and Cotten, “True, Original Defendants” Adversary Counterclaim to
Illegal Foreclosures and TILA claims”, Bk. Case No. 05-13246 TJC.
163. Arnold and Cotten have always maintained they were never in default of their
164. Upon fraudulent removal of all cases contained in this motion, see case
Chronology, the First, Third and Fourth cases prove “(CMI)” was at all times hereto the
foreclose.
165. The supreme court has time and time again rejected courts who elude “Subject
question, in the face of jurisdictional objections, as is the case here in these matters and
permitted, Arnold and Cottens claims belonged in their State Courts where they had filed
166. The Supreme Court has declined to endorse such a misplaced approach because it
carries the courts beyond the bounds of authorized judicial action and thus offends
67
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
surprise to those Federal Courts, since it is reflected in a long and venerable line of court
cases. "Without Jurisdiction the Court Cannot Proceed at All in Any Cause”.
167. Jurisdiction is power to declare the law, and when it ceases to exist, the only
function remaining to the court is that of announcing the fact and dismissing the cause."
"spring[s] from the nature and limits of the judicial power of the United States" and is
"inflexible and without exception." Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379,
169. The rule that a court first addresses its jurisdiction is so fundamental that "the
courts are obliged to inquire sua sponte whenever a doubt arises as to the existence of
federal jurisdiction." Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
170. "The general rule is that the parties cannot confer on a federal court
jurisdiction that has not been vested in that court by the Constitution and Congress”.
This means that the parties cannot waive lack of [subject-matter] jurisdiction by
the federal courts is too basic a concern to the judicial system to be left to the whims
and tactical concerns of the litigants." 13 WRIGHT ET AL., supra, § 3522, at 66-68
68
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
(citations omitted); see, e.g., Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites
de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982).
171. These Courts cannot dispute a Federal District court must determine its
jurisdiction before proceeding to the merits of the case. It contests only the proposition
that the federal court must reach the issue of “Subject-Matter Jurisdiction before reaching
Removal cases, where genuine concern for overreaching of federal courts remains a real
and viable apprehension for every state court. Arnold and Cotten ask these Honorable
173. There is no evidence the District Federal Courts would ever have jurisdiction over
Arnold and Cottens Counterclaims because the removal laws are clear on qualifying
defendant criteria that only “True Original Defendants” may remove, “(CMI)”, are “True
174. Plaintiffs preserved technical arguments from the fraudulently removed cases in
support of “(CMI)” fraudulent removals and because the District Courts refusal to apply
the laws of the land equally and due all United States, Maryland Citizens, these acts
constitute denial of due process and are an abuse of the courts discretion because a court
69
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
correctly addressed by this “FRCP 60(b)(2)(4) Motion to Set Aside and Void”’.
175. The District Courts of Beltsville, MD have interfered with legally protected due
process and right to redress rights and have denied these right to Maryland Citizens doing
176. It appears clear these Federal Courts have exhibited a gross abuse of the courts
discretion in all these matters now stated in this Motion to Set Aside and “Void” all
Orders.
177. A trial court’s ruling on a motion to alter or amend falls under a review for abuse
of discretion. Benson v. State, 389 Md. 615, 653 (2005); Wormwood v. Batching
support vacating a judgment under § FRAP 60(b)(1)(2)(3) or, the Order was a “Void” §
FRAP 60(b)4, hence, a Courts Lacking of Subject Matter Jurisdiction is the making of
“Void Orders”, that are a question of law, see Tucker v. Tucker, 35 Md. App. 710, 373
n.5 (1997). If the factual predicate exists, the court’s decision on the motion is reviewed
179. Arnold and Cotten assert and maintain such predicate exist as a matter of fact and
70
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
180. In the above captioned Civil Cases, Civil Case No. 04-0-05-000046 FC, Arnold
and Cotten are “Original Defendants” to this initial illegal action on which all subsequent
actions are predicated on with the counterclaim lawsuits being barred from removal.
180. “(CMI)” sought to foreclose were, and still are, “Original Plaintiffs”. “(CMI)” are
“(CMI)” is again the Plaintiff in their second Illegal Complaint to Foreclose and Lift
181. Motion to these courts as a matter of law and fact, that be known now onto these
Courts, just as Arnold and Cotten have discovered, the “Order” is a “Void” and
“Nullity” “ab initio”, and must be set aside for what they are, nullities at inception for the
courts wanting at all times of “Subject Matter Jurisdiction” over both “Issues and
Parties”.
182. The courts could never attain personal jurisdiction over Arnold and Cottens claims
because they had a binding right to litigate their claims in their state courts forum where
the actions started out and because they were and are the “True Original Defendants” for
the purpose of all related removal actions. “(CMI)” is and was the “Original Plaintiffs”
183. Subject Matter Jurisdiction May not Be Waived Nor Estopped and has been
Wrongfully Conferred to the District Federal Courts by “(CMI) acts of Fraud in the
procurement of judgment.
71
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
185. Motion to Void FRCP § 60(b)(2)(4), for Mistake and for Void is properly before
these honorable Courts by motion that is being made before the expiration of one year as
this statute applies to FRCP § 60(b)(2) Mistake, in that these courts dismissed defendant
CFI wrongfully and § 60(b)(2) Void has also been reasonably brought.
186. On Motion to set aside and void, this court is vested with the just authority to Set
Aside and Vacate the “Orders as Nullities and Voids” because they are just that, "Voids"
for both Courts Wanting of Jurisdiction, pursuant to Rule § 60(b)(4), See Heyman v. M.L.
187. Arnold and Cotten assert these Honorable Courts possess full authority vested to
review a motion to vacate a judgment under Rule 60(b)(4) for lack of a courts
jurisdictional authority, abuse of that courts discretion and violation of due process. See
Heyman v. M.L. Mktg. Co., 116 F.3d 91, 94 (4th Cir. 1997).
188. Here in this motion to vacate the courts “Orders”, the “Orders” Collectively are
clearly “Void Orders” under Rule 60(b)(4) and are due to receive the relief requested in
this motion for lack of the courts jurisdictional authority, abuse of the courts discretion
and violations of due process in refusing to apply the laws equally and fairly as they are
due to be applied.
189. This court has the authority to review de novo, for abuse of discretions. See
72
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Compton v. Alton S.S. Co., 608 F.2d 96, 107 (4th Cir. 1979) (stating, motions "under
FRCP § 60(b)(4) are reviewed for abuse of discretion, that of which must also be
considered in this case as well as FRCP § 60(b)(4)); see also New York Life Ins. Co. v.
190. “(CMI)” fraudulently removed the cases detailed in the case Chronology contained
in this Motion to Set Aside and Void and did so with the intent to mislead the courts as
had they listed all related cases, the courts long ago would have had no choice, as is the
same now, but to decline jurisdiction not due this court over the fraudulently removed
cases as the courts would have due notice and warning, aside from those warnings
provided the courts by Arnold and Cotten, remand for lack of jurisdiction of these
Federal Courts.
191. Under FRCP § 60(b)(4), any court of law may relieve a party from a final
judgment or order that is a “Void or a Nullity”, Arnold and Cotten justly are seeking this
192. A movant claiming relief under Rule 60(b)(4) need not establish a meritorious
defense. See Broadcast Music, Inc. v. M.T.S. Enters., Inc., 811 F.2d 278, 280 (5th Cir.
1987). 193. Relief under Rule § 60(b)(4) remains an extraordinary remedy resting
exclusively in the concept giving rise to the fact that a "Void Judgment” arises out of and
from the assumption there has been an abuse in its discretion by those Courts, those facts
clearly laid out now and proven herein and now, the courts clearly abused their discretion
73
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
claims in this instant action at bar. It is clear discretion has no place where “Subject
194. In so much as the Orders of this Courts are Voids ab initio, and the Court had a
duty which requires they examine jurisdiction continuously and sua sponta, that which
cannot be ignored, it is clear nothing can save these “Orders” that are “Voids and Legal
Nullities”, parties cannot and did not agree to jurisdiction trespasses of the fraudulent
removals that extend no authority to these courts because “(CMI)” are the “True and
Original plaintiffs for who cannot remove to federal courts nor can they remove
counterclaims either.
195. These Orders may not be held to be Orders that are “Void” merely because it is or
may be erroneous." Baumlin & Ernst, Ltd. v.Gemini, Ltd., 637 F.2d 238, 242 (4th Cir.
1980).
196. Instead, a judgment may be vacated for voidness under Rule § 60(b)(4) only if the
rendering court lacked Personal and Subject Matter Jurisdiction, or acted in a manner
inconsistent with due process of law, all is exactly what happened in these matters at bar,
See Eberhardt v.Integrated Design & Constr., Inc., 167 F.3d 861, 871 (4th Cir. 1999);
Schwartz v. United States, 976 F.2d 213, 217 (4th Cir. 1992), all of these events have
occurred in these instant matters before the courts now on this motion.
197. The courts may not dodge Subject Matter Jurisdiction requirements of the court’s
74
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
hence resulting in the judgment being a "complete nullity and without legal effect.."
Baumlin & Ernst, Ltd. v. Gemini, Ltd., 637 F.2d at 241 (4th Cir. 1980).
198. “Subject Matter Jurisdiction” may not be granted by a few parties, as the District
courts “Orders” wrongfully imply and these courts order must be set aside on all
199. Plaintiffs “(CMI)” never had the authority to remove and achieved removal by
deceptively failing to record all related cases, accomplishing the removal by their acts of
fraud, specifically, Civil Case No. 04-0-05-000046 FC and, Bankruptcy Complaint to Lift
Stay to Foreclose, Case No. 55-06253, Docket No. 130, 06/19/2006, in Bk. Case No. 05-
13246 TJC, and Bk. Case No. 06-2056, 12/14/2006 Counterclaims in Bk. Case by Arnold
Arnold and Cotten”, Bk. Case No. 05-13246 TJC: The courts violated due process when
ignoring Arnold and Cottens many demands for remand and objections to the fraudulent
removals.
200. This court made a clear error in their jurisdictional authority and abused their
discretion in continuing to preside over matters when it was without doubt they had
usurped Congress and the Bankruptcy courts Authority and Power when refusing to carry
out the laws mandates and must be corrected as to permitting courts to act in such a
conflicting capacity as such actions, “seriously undercuts the orderly process of the law.”
75
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Celotex Corporation v. Edwards, 514 U.S. 300, 313, 115 S. Ct. 1493, 1501, 131 L. Ed.2d
403 (1995).
201. Lack of jurisdiction cannot be corrected by an order nunc pro tunc as evidenced
here in this instant case. The only proper office of a Nunc Pro Tunc order is to correct a
mistake in the records; it cannot be used to rewrite history." E.g., Transamerica Ins. Co.
v. South, 975 F.2d 321, 325-26 (7th Cir. 1992); United States v. Daniels, 902 F.2d 1238,
1240 (7th Cir. 1990); King v. Ionization Int'l, Inc., 825 F.2d 1180, 1188 (7th Cir. 1987).
And Central Laborer's Pension and Annuity Funds v. Griffee, 198 F.3d 642, 644(7th cir.
1999).
compel these Honorable Courts to “Order and DECREE “Void” this Courts “Orders” as
“Nullities” and restore onto “True, Original Defendants” Arnold and Cotten, the “Status
Quo” of all their Fraudulently Removed Cases, vesting further all legal rights thereto of
the fraudulently removed cases and Order Remand, Vacating All Orders and to grant all
and any other relief these honorable courts deem just and due, that which must further
Respectfully Submitted,
_______________________________
Kathleen Arnold & Timothy A. Cotten,
Pro Se Defendants
9543 North Side Drive
76
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Owings, Md 20736
(410) 257-5283
77
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
)
)
Arnold, et. al, ) Case No: RWT 07-2617
)
) MOTION FRCP § 60(b)(2)
Plaintiffs, ) and (4) -
) “VOID ORDERS” AND,
vs. ) DISCOVERY OF EVIDENCE
)
CitiMortgage Inc., et. al., )
)
)
Defendants, )
)
)
)
)
)
)
)
§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§
1. “The appropriate course [for a federal court] is to examine for subject matter
jurisdiction constantly and, if, it is found lacking, to remand to state court if appropriate,
defendant, a plaintiff who has chosen to commence the action in state court cannot later
78
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
remove to federal court, even to defend against the counterclaim, as here in this instant
case at bar. See 14C Wright, Miller and Cooper, Federal Practice and Procedure:
Jurisdiction 3d §3731 (1998). The “well-established rule is that the plaintiff, who chose
the forum, is bound by that choice and may not remove the case.” Scott v.
Communications Services, Inc., 762 F.Supp. 147, 150 (S.D. Texas 1991).
2. Arnold and Cotten contend the courts had and continue to have a duty to reconcile
the conflicting rights to removal by parties and therefore had a binding obligation to
immediately defend challenges made to the courts Subject Matter Jurisdiction raised
repeatedly by Arnold and Cotten. Despite the pleadings, motions and objections, the
Federal Courts patently ignored Arnold and Cottens just challenges and therefore abused
3. As those District Federal Courts have cause to know, “Subject Matter Jurisdiction”
may not be waived or Estopped, therefore the question must be presented and addressed
as to exactly why did these courts ignore “Subject Matter Jurisdiction” challenges by
4. Arnold and Cotten contend the courts September 12, 2008 Order made under Case
No. 8:07-cv-02722-RWT, see Attached Exhibit, denying and dismissing all motions for
hearings on the fraudulently removed cases and claims, (those belonging to the State of
Maryland), and the District Courts refusal to account for the courts Subject Matter
Jurisdiction; both constitute severe abuses of discretion and denial of due process and
79
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
redress. 'Due regard for the rightful independence of state governments, which should
actuate federal courts, requires that they scrupulously confine their own jurisdiction to the
precise limits which the statute has defined'. Healy v. Ratta, 292 U.S. 263, 270 , 54 S.Ct.
700, 703; see Kline v. Burke Construction Co., 260 U.S. 226, 233 , 234 S., 43 S.Ct. 79,
82, 24 A.L.R. 1077; Matthews v. Rodgers, 284 U.S. 521, 525 , 52 S.Ct. 217, 219; cf.
5. The Federal Courts never defended as the are mandated to, their Subject Matter
Jurisdiction Challenges, failing to defend and prove their challenged Subject Matter
Jurisdiction that which they could not prove and had no legal authority or right to waive
these mandatory procedures in their proceeding with restraining Arnold and Cotten in
their courts illegally, Arnold and Cotten are the true defendants and they never removed
nor filed their counterclaim causes in these Federal District Courts, noting this court did
not even have personal jurisdiction over removing defendants “(CMI)” because they
6. At some time and point this District Federal Court had to realize in reading Arnold
and Cottens 4th Amended Complaint and subsequent complaints, pleadings and motions,
that it was evident all cases evolved from the “Plaintiffs” “(CMI)” two foreclosure
actions, therefore eliminating “(CMI)” all together as a defendant charged with the right
permitted to remove under established removal law as only “Defendants” may remove,
with it being clear “(CMI)” is and always was the “Plaintiff” and, as Counterclaim
80
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Defendants, these cases are not cases eligible to be removed as the Supreme Court has
held repeatedly. “(CMI)”, and their Legal Agents knew this and had cause to know this
subject matter jurisdiction and the fraudulent removal allegations, they would have
discovered promptly, some three years earlier, their courts lacked Subject Matter
9. The honorable courts were content in not scratching the surface and refused to
look beyond the superficial case removal intake forms, and apparently negating to ever
Cases, and especially those in which the removals are contested as here.
10. These courts had a duty to strictly construe removal statutes that dictates Removal
jurisdiction, the court must strictly construe the federal removal statute and resolve
all doubt in favor of remand. Fajen v. Foundation Reserve Ins. Co., 683 F.2d 331, 333
11. These Courts illegally restrained and detained Arnold and Cotten holding them in
a court without authority to enter any “Order” because Subject Matter Jurisdiction cannot
81
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
be waived or acquiesced, and is only granted the courts by strict following of the
Removal Laws. Clearly here in this case, there was never any legal bases for this court to
proceed first to the merits of the case and particularly in light of Arnold and Cottens
urging onto the courts to examine the removals and demand for the courts to defend their
misplaced claim of rights to a jurisdiction they simply never had and doing so
independent of the removing parties notably infirmed pleadings……to which all these
12. Had the District courts exercised proper discretion and conducted an independent
case search as mandated, they would have more then concluded the fraudulently removed
cases were not cases subject to removal because the removing Defendants, “(CMI)” were
not the “True Original Defendants” but are and were the “True Original Plaintiffs”
therefore a reasonable diligent investigation beneath “(CMI)” removal case intake forms
combined with Arnold and Cottens timely motions for remand, these contrary facts
should have been obvious to the courts and the courts should have forced “(CMI)” to
carry their burden and ruled in favor of remand to resolve these discrepancies as the
13. The courts could have spared Arnold and Cotten of these undue delays in their
case by fully defending their right to preside over the wrongfully and fraudulently
removed cases, as it stands now, because the courts lacked subject matter jurisdiction
Arnold and Cotten are left still waiting for justice because by law and fact, this courts
82
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
14. The courts never defended their challenges to jurisdiction but yet, had a binding
duty to first decide Subject Matter Jurisdiction when confronted with challenges in
questioned as clearly here in these matters at bar. It was and continues to be reasonably
questioned by Arnold and Cotten repeatedly throughout the past three years and now
again formally in this motion to Set Aside and Void for Fraud and Mistake, the Mistake
being this court dismissal of CFI without just cause because CFI was never in
Bankruptcy as of the hearing on January 26, 2010, nor could plaintiffs remove cases to
federal courts, even if they become counterdefendants, plaintiffs cannot not remove.
15. Arnold and Cotten argue that the court should have as they are bound by Supreme
challenged by Arnold and Cotten justly, prior to this court proceeding to address matters
in the case they never had and could not gain authority to preside over said matters
because Plaintiffs cannot remove cases to federal courts even if they become
16. There be never a reason for this Federal Court to exercise a power and authority it
merely never had when ignoring black letter law that has already been decided for this
district court and has been already described, Article III envisions state courts as the
default for all claims, based in both state and federal law. See Healy, 292 U.S. at 270,
83
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
17. Where Congress has not extended federal subject-matter jurisdiction, the courts
should respect the Article III default of residual state court jurisdiction. See, e.g., 13
Wright, Miller & Cooper, supra, § 3522, at 61-62. Therefore, although the ultimate
issue might prove to be one of federal law, a federal court may not deprive state courts
18. This District court has attempted to decide personal subject matters prior to first
identifying they even possessed at all times a right that at all times was not existent, (all
19. We stand to remind these Honorable Courts of the limited extent of the Federal
courts jurisdictional powers over claims that arouse under the state courts of Maryland,
this is where Arnold and Cottens claims arouse pursuant to Plaintiffs “(CMI)”,
20. Arnold and Cottens claims arouse in their state of Maryland and while the
“Original Plaintiffs”, “(CMI)” were in fact named as Defendants in Arnold and Cottens
CounterDefense Adversary complaints, “(CMI)” was at all times relevant thereto the
“Original Plaintiffs”, to which no removal was permitted and is exactly why Arnold and
Cotten contend they Omitted time and time again, on a total of 5 Fraudulent Removals,
the Two Subsequent Foreclosure Actions they had taken, and in which Arnold and Cotten
84
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
lawsuits, claims that which do not change the fact that Arnold and Cotten are and remain,
the “Original Defendants”, therefore making CitiMortgages Inc. et. al. Removals
Fraudulent as Alleged by Arnold and Cotten and as to the Removal Case Intake Forms
Exhibits, see Attached Exhibits, “(CMI)” “Omitted All Related Foreclosure Cases”, see
21. Had this District Court dug this out of the state court case history or, granted and
allowed Arnold and Cottens many timely motions for hearings on the courts wanting for
Subject Matter Jurisdiction, these courts would have timely discovered, if they did not
22. The Technical Removal Violations were also asserted timely upon each fraudulent
removal; this court at all times thereto Abused their Discretion in Refusing to Resolve
these matters properly Raised by Arnold and Cotten as the record reflects.
23. The United States District Courts of Beltsville have acted beyond the powers
vested onto them, proceeding beyond their judicial powers in forcing upon Arnold and
24. Fact is, quoting from Shamrock holding, "Only the jurisdiction of the Supreme
Court is derived directly from the Constitution. In Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941), the Supreme Court
considered the question of “whether the suit in which [a] counterclaim is filed is one
85
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
removable by the [original] plaintiff to the federal district court ․,” id. at 103, 61
S.Ct. 868, under the statutory predecessor to § 1441(a), which provided that an action
“may be removed by the defendant or defendants therein to the district court of the
United States for the proper district,” id. at 105 n. 1, 61 S.Ct. 868. Although the Court
acknowledged that, between 1875 and 1887, the removal statute allowed “either
party” to remove the suit to federal court, id. at 104-05, 61 S.Ct. 868, the Court
amending the statute in 1887 to allow removal only “by the ‘defendant or defendants'
in the suit,” id. at 107, 61 S.Ct. 868. Noting that interpretation of removal statutes
“call[ed] for ․ strict construction,” id. at 108, 61 S.Ct. 868, the Court thus held that
the original plaintiff against whom the original defendant had filed a counterclaim
could not remove the case to federal court under § 1441(a)'s predecessor.
25. Congress has noted, defendants in the traditional sense of parties against whom
the [original] plaintiff asserts claims.” First Nat'l Bank of Pulaski v. Curry, 301 F.3d
456, 462-63 (6th Cir.2002) (noting that the American Law Institute has recommended
that Congress “make clear what the present law merely implies: the right of removal
applies only to the action as framed by the pleading that commences the action.
Counterclaims, cross claims, and third-party claims cannot be the basis for removal
[under § 1441(a) ]”); see also Florence v. ABM Indus., 226 F.Supp.2d 747, 749
86
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
(D.Md.2002) (“[I]n adopting the current language [of the removal statute], Congress
intended to restrict removal jurisdiction solely to the defendant to the main claim.”),
Arnold and Cotten are clearly the defendants to the main claim of “(CMI)”
foreclosure actions.
25. Every other federal court ... derives its jurisdiction wholly from the authority of
Congress. That body may give, withhold or restrict such jurisdiction at its discretion,
provided it not be extended beyond the boundaries fixed by the Constitution." Kline v.
Burke Constr. Co., 260 U.S. 226, 234, 43 S.Ct. 79, 82, 67 L.Ed. 226 (1922).
statutory provisions dealing with the jurisdiction of the federal courts," Victory Carriers,
Inc. v. Law, 404 U.S. 202, 212, 92 S.Ct. 418, 425, 30 L.Ed.2d 383 (1971), and because
the Constitution leaves Congress the policy choice concerning how far the federal courts'
26. "When Federal questions arise in cases pending in the state courts such as
“(CMI)” “those state courts are competent, and it is their duty, to decide them." Id. at
190-91, 22 S.Ct. at 49. The Supreme Courts and federal courts have stated repeatedly
they know of nothing in the intervening years to cause these courts to doubt the state
27. Under our federal constitutional scheme, the state courts are assumed to be
87
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
28. To the extent that Congress elects to confer only limited jurisdiction on the federal
courts, state courts become the sole vehicle for obtaining initial review of some federal
and state claims. Cf., e.g., Victory Carriers, 404 U.S. at 212, 92 S.Ct. at 425.
29. Where Congress has given the lower federal courts jurisdiction over certain
controversies, " 'Due regard for the rightful independence of state governments, which
should actuate federal courts, requires that they scrupulously confine their own
jurisdiction to the precise limits which a federal statute has defined.' " Id. (quoting
Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 703, 78 L.Ed. 1248 (1934)).
30. Intervention of the District Courts without expressed authority has resulted in
“Void Orders” because this federal court has and is exceeding their authority in their
matters the court had a duty in which to apply the law fairly and equally, they have failed
to do so in these matters with it being unfair for the courts to deny proper, timely
31. The supreme courts have reached these decisions the same time and time again
and has ruled in allowing a court unfettered access to Personal Jurisdiction under the
abuse its jurisdictional privileges, which are limited by congress for reasons to prevent
the courts from exceeding their jurisdiction authority and as they have so done in these
88
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
matters.
32. The Federal Courts in these grave matters, have proven they lack the desire and or
ability to apply the laws fairly and evenly as evidenced alone in their severe abuses of
discretion exhibited in the Fraudulent Removals of Arnold and Cottens cases from the
Circuit Courts of Calvert County and the jurisdictional challenges timely mounted by
33. Arnold and Cotten have pause for alarm based over this Federal Courts
mishandling of the fraudulent removals of their state Cases, given weight and due
consideration to those courts uneven application of decided removal case law by the
Supreme Courts of the United States regarding removals, and, this very courts decisions
established Federal laws by the Supreme Courts of the United States." 28 U.S.C. §
2254(d)(1).
34. This federal court has refused to defend against wrongful removals and subject
matter jurisdiction that goes against judicial guidance and rules of settled Supreme Court
Law in removal cases similar to this case such as Shamrock Oil v. Steel, Palisades and
counterclaims any right to remove, “(CMI)” falls under this category of defendants who
are barred from removal therefore these courts never could achieve personal jurisdiction
89
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
35. This Federal Court has arrived at decidedly contrary and different conclusions of
law in this courts flawed misapplication of the law that which is profoundly inconsistent
to established Supreme Court Rulings over the same removal and case matters.
36. The U.S. District Courts arrived at a wrongful decision when eschewing Subject
Matter Jurisdiction challenges "contrary to" clearly established federal law that "if the
state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a
question of law or if the state court decides a case differently from [the Supreme] Court
on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13
(2000). The "unreasonable application" are grounds for granting the writ and applies "if
the state court identifies the correct governing legal principle from [the Supreme Court's]
decisions but unreasonably applies that principle to the facts of the prisoner's case."
Court has held that, without proper jurisdiction, a court cannot proceed at all, but can
only note the jurisdictional defect and dismiss the suit, See, e.g., Capron v. Van Noorden,
2 Cranch 126; Arizonans for Official English v. Arizona, 520 U.S. 43. Bell v. Hood,
supra; National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414
U.S. 453, 465, n. 13; Norton v. Mathews, 427 U.S. 524, 531; Secretary of Navy v.
Avrech, 418 U.S. 676 , 678 (per curiam); United States v. Augenblick, 393 U.S. 348 ;
90
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
United States v. Augenblick, 393 U.S. 348 ; and Chandler v. Judicial Council of Tenth
Circuit, 398 U.S. 74, 86—88, distinguished. For a court to pronounce upon a law’s
38. It should be noted here that as in this case at bar, a Rule 60(b)(4) motion involves
a different standard of review than the other Rule 60(b) subsections since the court held
"[w]hen the grant or denial turns on the validity of the judgment, discretion has no place
for operation. If the judgment is void it must be set aside ...." Fisher, 565 So. 2d at 87.
The judgment here must be set aside for it is, “Void” or Legal Nullity”.
39. A court considering a motion to vacate a judgment, which it finds void for lack of
jurisdiction, has no discretion to hold that the judgment should not be set aside. Watts v.
40. A Rule 60(b)(4), as motioned by Arnold and Cotten, is justly employed to attack
void judgment, see Fisher v. Amaraneni, 565 So. 2d 84 (Ala. 1990). The judgment was
set aside for lack of personal jurisdiction based on improper service by publication. The
court defined a judgment as void "only if the court rendering it lacked jurisdiction of
the subject matter or of the parties, or if it acted in a manner inconsistent with due
process." Id. at 86 (citing Wonder v. Southbound Records, Inc., 364 So. 2d 1173 (Ala.
1978)). This is the case here at bar and subject this correctly motioned request for due
91
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
41. "The consequences of an act beyond the court's jurisdiction in the fundamental
42. An act beyond a court's jurisdiction in the fundamental sense is “void”; it may be
set-aside at any time and no valid rights can accrue there under. In contrast, an act in
excess of jurisdiction is valid until set aside, and parties may be precluded from setting it
aside by such things as waiver, Estoppel, or the passage of time", none of these elements
apply here and are not relevant as this was not an excess of jurisdiction but clearly no
43. In the Fifth Circuit, on its own motion, granted rehearing en banc, thereby
vacating the panel decision. See 129 F. 3d 746 (1997). In a 9-to-7 decision, the en banc
court held that, in removed cases, district courts must decide issues of subject-matter
jurisdiction is found to exist." 145 F. 3d, at 214. Noting Steel Co. 's instruction that
217 (quoting 523 U. S., at 94 ), the Court of Appeals derived from that decision "counsel
F. 3d, at 218. The court limited its holding to removed cases; it perceived in those cases
the most grave threat that federal courts would "usur[p] ... state courts' residual
92
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
44. Arnold and Cotten correctly argue, "Once Challenged”, “jurisdiction cannot be
assumed, it must be proved to exist." Stuck v. Medical Examiners 94 Ca 2d 751. 211 P2d
389. Accordingly, subject-matter delineations must be policed by the courts on their own
initiative, even at the highest level. See Steel Co. , 523 U. S., at 94 -95; Fed. Rule Civ.
Proc. 12(h)(3) ("Whenever it appears ... that the court lacks jurisdiction of the subject
matter, the court shall dismiss the action."); 28 U. S. C. §1447(c) (1994 ed., Supp. III)
("If at any time before final judgment [in a removed case] it appears that the district court
lacks “Subject Matter Jurisdiction, the case shall be remanded."). Personal jurisdiction,
on the other hand, "represents a restriction on judicial power ... as a matter of individual
liberty." Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U. S.
694, 702 (1982). Therefore, a party may insist that the limitation be observed, or he may
forgo that right, effectively consenting to the court's exercise of adjudicatory authority.
See Fed. Rule Civ. Proc. 12(h)(1) (defense of lack of jurisdiction over the person
waivable); Insurance Corp. of Ireland , 456 U. S., at 703 (same), notably, Arnold and
Cotten never agreed to jurisdiction as the case is replete with evidence to such facts.
45. Kocher v. Dow Chem. Co., 132 F.3d 1225, 1230-31 (8th Cir. 1997) (as long as
there is an "arguable basis" for subject matter jurisdiction, a judgment is not void but
merely voidable”; “No arguable basis for subject matter jurisdiction exist” because
CitiMortgage Inc., et. al. is not defined under law as a “true defendant” entitled to avail
themselves to removal therefore making the removal “Orders Void” and all Orders
93
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
46. All “Orders” in Arnold and Cottens fraudulently removed cases are “Voids” and
as a matter of law and fact and must be set aside for the courts wanting of subject matter
jurisdiction. See, Lubben v. Selective Service System, 453 F.2d 645, 649 (1st Cir. 1972)
("A void judgment is to be distinguished from an erroneous one, in that the latter is
subject only to direct attack”), these Judgments are “Voids and are subject to direct
attach”.
47. A void judgment is one which, from its inception, was a complete nullity and
without legal effect."), emphasis added, the case here brought by original Subject Matter
Jurisdictional challenges to both Courts and all removed cases and the resulting orders at
bar.
48. In Stoll v. Gottlieb, 305 U.S. 165, 171- 72, 59 S.Ct. 134 (1938) ("Every court in
rendering a judgment tacitly, if not expressly, determines its jurisdiction over the parties
and the subject matter."), this court either abused their discretion and or made error in
their determinations, those of which resulted in the “Void Orders” “at inception”, ab
initio, to which true and original defendants Arnold and Cotten, justly seek to set aside.
49. As applies here in this instant action before these courts, "A judgment is void if
the court acted in a manner inconsistent with due process. A void judgment is a nullity
50. What is more, "A void judgment is one that has been procured by extrinsic or
94
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
collateral fraud or entered by a court that did not have jurisdiction over the subject
matter or the parties." Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987). The
51. As strictly applies in these cases before these honorable courts, A judgment
obtained without jurisdiction over a party is void. Overby v. Overby , 457 S.W.2d 851
(Tenn. 1970), and Arnold and Cotten are justly seeking to escape these “Void Orders”
and “Legal Nullities”, that, are by law and fact, they are entitled to escape the effects of
52. When jurisdiction is challenged, courts generally do not accept the carte blanche
naked allegations of diverse citizenship or bald assertions See, e.g., Coburg, 369 F.3d
811, (requiring of jurisdictional facts). Plaintiff to state a substantial federal claim and
declining to base jurisdiction upon an allegation that his employer violated “his
constitutional rights”); Axel Johnson, Inc. v. Carroll Carolina Oil Co., Inc., 145 F.3d 660,
proof of citizenship for diversity purposes and collecting cases on similar points);
Bufalino v. Michigan Bell Tel. Co., 404 F.2d 1023, 1029 (6th Cir.1968), (“Jurisdiction
allegations that one's constitutional or civil rights have been violated.”); Powder Power
Tool Corp. v. Powder Actuated Tool Co., 230 F.2d 409, 414 (7th Cir.1956) (“The rule is
firmly settled that the mere allegation of the jurisdictional amount when challenged as it
95
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
was here, is merely not sufficient and that the burden is upon the plaintiff to substantiate
53. Indeed, “[w]here the pleadings are found wanting, an appellate court may also
review the record for evidence that diversity does exist.” Penteco, 929 F.2d at 1521
(citing Sun Printing & Publ'g Ass'n v. Edwards, 194 U.S. 377, 382, 24 S.Ct. 696, 48
L.Ed. 1027 (1904)); see also McNutt v. General Motors Acceptance Corp., 298 U.S. 178,
56 S.Ct. 780, 80 L.Ed. 1135 (1936); F & S Constr. Co. v. Jensen, 337 F.2d 160 (10th
Cir.1964); Buell v. Sears, Roebuck & Co., 321 F.2d 468 (10th Cir.1963).
54. In Steel Co. v. Citizens for Better Environment, 523 U. S. 83 (1998), the Courts
adhered to the rule that a federal court may not hypothesize subject-matter jurisdiction for
the purpose of deciding the merits. Steel Co. rejected a doctrine, once approved by
objections "where (1) the merits question is more readily resolved, and (2) the prevailing
party on the merits would be the same as the prevailing party were jurisdiction denied."
Id. , at 93. Recalling "a long and venerable line of our cases," id. , at 94, Steel Co.
`inflexible and without exception,' " id. , at 94-95 (quoting Mansfield, C. & L. M. R. Co.
v. Swan, 111 U. S. 379, 382 (1884)); for "[j]urisdiction is power to declare the law," and
" `[w]ithout jurisdiction the court cannot proceed at all in any cause,' " 523 U. S., at 94
96
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
55. The Court, in Steel Co., acknowledged that "the absolute purity" of the
jurisdiction-first rule had been diluted in a few extraordinary cases, 523 U. S., at 101 ,
and Justice O'Connor , joined by Justice Kennedy , joined the majority on the
understanding that the Court's opinion did not catalog "an exhaustive list of
circumstances" in which exceptions to the solid rule were appropriate, id. , at 110. No
exceptions here in these matters before the this Court that could acquire personal
jurisdiction either. Arnold and Cottens claims belonged to their state of Maryland
therefore the Federal Courts had no just bases ever for any jurisdictional argument, nor
can one be made because the federal question “arising under” requirements of 1331 never
56. In a respected line of the Supreme Court cases wherein they held that, without
proper jurisdiction, a court cannot proceed at all, but can only note the jurisdictional
defect and dismiss the suit. See, e.g., Capron v. Van Noorden, 2 Cranch 126; Arizonans
for Official English v. Arizona, 520 U.S. 43. Bell v. Hood, supra; National Railroad
Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 465, n. 13;
Norton v. Mathews, 427 U.S. 524, 531; Secretary of Navy v. Avrech, 418 U.S. 676 , 678
(per curiam); United States v. Augenblick, 393 U.S. 348 ; Philbrook v. Glodgett, 421
U.S. 707, 721; and Chandler v. Judicial Council of Tenth Circuit, 398 U.S. 74, 86—88,
has no jurisdiction to do so is, by very definition, an ultra vires act. Pp. 8—17.
97
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
57. Arnold and Cotten contend “(CMI)” abused the removal laws and did so at all
times to cause expense, harm, confusion, frustration and delay. This case lay wasting for
almost three years in these Federal Courts with no action and a conclusion that has ended
decidedly in “Void Orders”. The Fifth Circuit noted the same concern for abuse, Arnold
and Cotten have noted in “Marathon” posit, the state-court defendants will abuse the
federal system with opportunistic removals. These courts looked to a discretionary rule,
designed to wrench cases from state court. See 145 F. 3d, at 219; This specter of
indulge--that district courts generally will not comprehend, or will balk at applying, the
rules on removal Congress has prescribed... . The well-advised defendant ... will foresee
the likely outcome of an unwarranted removal--a swift and non-reviewable remand order,
see 28 U. S. C. §§1447(c), (d), attended by the displeasure of a district court whose
authority has been improperly invoked." Caterpillar Inc. v. Lewis, 519 U. S. 61, 77-78
(1996).
ORDERS, FRCP 60(b)(2)(4), from this District Federal Courts “Void Orders” and
Decree ALL “Orders Null and Void” and is to be applied to All Fraudulently Removed
Cases to the United States Federal District Courts of Beltsville, ORDER NOW AND
98
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
for wanting of Subject Matter Jurisdiction and ORDER all other relief these courts deem
Respectfully Submitted,
_______________________________
Kathleen Arnold & Timothy A. Cotten
Pro Se Defendants
9543 North Side Drive
Owings, Md 20736
(410) 257-5283
99
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
1st. Case No. 04-0-05-000046 FC, 01/14/2005, Calvert County Circuit Courts,
First Case Illegal Foreclosure Initiated by “(CMI)”, vs. Arnold et. al., “(CMI)”, and are
“Original Plaintiffs, Arnold & Cotten are “Original Defendants”, to this Action; All cases
relate back to this complaint pursuant to removal rights, TILA,
BK.;
2nd Case No. 05-13246 TJC, Arnold, 02/14/05, United States Bankruptcy Courts,
Arnold is Debtor, “(CMI)” Plaintiff Creditor;
3rd. Case No. 55-06253, Docket No. 130, 06/19/2006, in Bk. Case No. 05-13246
TJC, Arnold is Debtor, and Cotten Creditor Defendant; “(CMI)” is Plaintiff Creditor in,
2nd Illegal Complaint to Foreclose & Lift Stay Action filed by “(CMI)”; All cases also
relate back to this complaint and 1st. Case No. 04-0-05-000046 FC, 01/14/2005, the
Foreclosure, pursuant to removal, TILA and BK. legal claims.
5th Case No. 04C07000353, 03/20/2007, Calvert County Circuit Courts, “Arnold
& Cotten”(Plaintiffs, for Filing Purposes Only), Retain “Original Defendant Status for
Removal Purposes” in their 2nd Affirmative Defense Counterclaim, Against “(CMI)”,
“Original Plaintiffs”; “(CMI)”, in Executing First Fraudulent Removal, Refused to
Identify all Related Cases as Listed Above, Subsequent Foreclosure Cases”: “(CMI)”
though Listed as Defendants for Purposes of filing the Counterclaim; “(CMI)”, Remains
“Original Plaintiffs for Removal Purposes, “(CMI)”;
6th Case No. 04C07001044, 08/06/2007, ” Calvert County Circuit Courts, Arnold
100
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
and Cotten file 3rd. Counterclaim as “Original Defendants” for Removal Purposes in
Affirmative Defense to “(CMI)”, 2 Illegal Foreclosures and this 1st Fraudulent Removal
by “(CMI)” who are Original Plaintiffs”, Barred From Removal, yet removed to U.S.
District Courts, Case No. 08:07-CV-2722 RWT 10/10/2007”: Fraud in Removal -
“(CMI)”, Aside from knowing they were not entitled to removal relief and did so
fraudulently because they were never the “Original Defendants by Law”, the Original
Foreclosure Case Remained Open for Over one Year, i.e., 1st. Foreclosure Case No. 04-
0-05-000046 FC, opened on, 01/14/2005, and closed by Plaintiffs “(CMI)” on
01/11/2007; Plaintiffs “(CMI)” Failed to Join all Parties and Notice the Two Foreclosure
Cases on the Removal Intake Forms, Original Case, 1st. Foreclosure Case No. 04-0-05-
000046 FC, 01/14/2005, Case No. 06-2056 on 12/14/2006, Case No. 55-06253, Docket
No. 130 on 06/19/2006, And Case No. 04C07000353 on 03/20/2007, “(CMI)”, failed to
State Specifically the Reasons for Removal Avoiding the Question, and the Courts
Allowed this to suffice for burden of proof to remove: “(CMI)”, left out the fact they
were the “Original Plaintiffs” and did so at All Times Subject First Fraudulent Removal;
Arnold and Cotten were Defendants at All Times with “(CMI)” having No Right to
Remove because they were not “Original Defendants as Defined for Removal Purposes,
But Are and Were “Original Plaintiffs” for removal purposes and were barred from
removal at all times and is, therefore the reasons “(CMI)” left out the above two
foreclosure cases and adversary affirmative defense complaints filed by “Original
Defendants Cotten and Arnold”; these omissions made by “(CMI)” were acts intended to,
and did, deceive at all times the Courts when leaving the cases out so that the removals
appeared legitimate on superficial evidence provided the courts or on their face, (though
there were other technical errors the courts overlooked too), when Arnold and Cotten
were never, “Original Plaintiffs”; Just because “(CMI)” Dismissed their First Foreclosure
Action in Attempts to Avoid Liability they could not just dismiss or withdraw their
Counterclaim actions and force the true Defendants, “Original Defendants Arnold and
Cotten” to just Disappear”.
101
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
preliminary motions were made within the statutory Laches Time of Rights, 30 Days
after Illegal Removal as Prescribed by Law and Evidenced in attached Exhibit, Docket
Sheets and Docket Entries No. 24, 10/30/2007 - Complainants Demand to Remand
Response to the 10/5/2007 Illegal Removal; Again, see Docket No. 37 on 1/23/2008
Motion to Compel Hearing on Demand to Remand; see Docket No. 38 on 2/5/2008 once
more, Demand for Remand and Motion for Sanctions; see Docket No. 41 on 3/10/2008
Demand for Remand and Demand for Hearing on Challenges to the Courts Subject
Matter Jurisdiction: The Honorable Courts possessed a binding duty to account
exhaustively to the challenged duty to establish subject matter jurisdiction over the
removed cases. Notably; removal was improper at all times as Arnold and Cotten plead
and cited these facts. “(CMI)”, had been served with the affirmative defense
counterclaims two subsequent times, once onto the creditor plaintiffs “(CMI)”, legal
agent in the Bankruptcy Adversary Complaint, Case No. 06-2056 filed on December 14,
2006 and a second time in Arnold and Cottens Calvert Circuit Courts, 2nd Compulsory
Affirmative Defense Complaint No. 04C07000353 filed on March 20, 2007, not that
these arguments are needed because removing party was barred from removal all together
and could never have removed.
7th Case No. 04C07001179, 09/04/2007, in the Calvert County Circuit Courts,
Arnold and Cotten are Plaintiffs for the purpose of filing this Affirmative Defense
Counterclaim and Remain “Original Defendants” for Removal Purposes, “(CMI)”.
Remains “Original Plaintiffs” for Removal Purposes, and removed fraudulently to the
District Courts Case No. 08:08-CV-00038 RWT, 10/05/2007: Again “Original Plaintiffs
“(CMI)” Omitted the Above Related Cases on Removal Intake Form and did so with
Intent to Deceive Courts to gain Forum Advantage. The Honorable Courts Went
Beyond their Boundaries of the Court Allowing the Removal of Affirmative Defense
Counterclaim filed by Arnold and Cotten from Circuit Court, to the U.S. Federal District
Courts. The Honorable Courts continued Eschewing timely Demand for Remand
Petitioned within Laches Rights of 30 Days Prescribed by Law, Evidenced in attached
Exhibit Docket Sheets and Docket Entries No. 7, 1/18/2008 - Demand Remand to, see
Docket No. 8 on 2/4/2008 Motion to Compel Hearing on Demand to Remand; see Docket
No. 13 on 3/10/2008, Demand for Remand and Demand for Hearing on Courts Subject
Matter Jurisdiction:
The Honorable Courts continued to ignore challenged duty to establish subject matter
jurisdiction over the removed cases when issuing a blanket Order and Denial of All
Arnold and Cottens Motions for Demand, Failing Ever to Establish the Courts
Jurisdiction, Jurisdiction they Never Had and that Could Not be Taken, Given nor
Waived.
102
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
9th. Case No. 04C07001623, 11/ 24/ 2007, Complaint filed by “Original
Defendants” Arnold and Cotten in the Calvert County Circuit Courts, AND Illegal
Removal to District Court, Case No. 08:08-CV-00038 RWT: The Honorable Courts
Went Beyond The Boundaries of the Court Allowing the fraudulent Removal of Arnold
and Cottens Circuit Court Case to the U.S. Federal District Courts wherein The
Honorable Courts continued Eschewing Arnold and Cottens timely Demand for Remand
Petitioned within their Laches Rights of 30 Days Prescribed by Law, Evidenced in
attached Exhibit Docket Sheets and Docket Entries No. 7, 1/18/2008 - Demand Remand
to, see Docket No. 8 on 2/4/2008 Motion to Compel Hearing on Demand to Remand; see
Docket No. 13 on 3/10/2008, Demand for Remand and Demand for Hearing on Courts
Subject Matter Jurisdiction that Which the Court has No Discretionary Power to Relieve
them of this Requirement and Mandate to Defend Subject Matter Challenges:
The Honorable Courts continued to flout their challenged duty to immediately and timely
establish subject matter jurisdiction over the removed cases.
10th. Case No. 04C08000773, 06/30/2008, Complaint filed by Arnold and Cotten,
(Original Defendants), as to Affirmative Defenses Counterclaim, in Circuit Court for
Calvert County - AND District Court Case No. 08-CV-2197 RWT: Removal Barred,
“(CMI)”, named in complaint, were the “Original Plaintiffs” in the litigation initiating
actions, the 2 Illegal Foreclosures. Court refused to answer Challenged Subject Matter
Jurisdiction, electing to ignore the duties of office. The honorable Courts traveled
103
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
beyond their jurisdiction at all times and acted outside of the law when proceeding
because a Plaintiff may not remove, “(CMI)” are Plaintiffs for removal purposes and
were barred from removal.
104
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
XIX. VERIFICATION
Timothy A. Cotten and Kathleen Arnold, “True and Original Defendants and
Counterclaim Plaintiffs, hereby swear and affirm under penalties of perjury, that they
have verified all the facts set forth in the foregoing, “Motion to Set Aside the United
States District Courts Void Orders for the Courts Wanting of Subject Matter Jurisdiction
Pursuant to FRCP § 60(b)(2)(4)” and those facts plead herein and so stated, are true and
correct as to the very best of Timothy A. Cotten and Kathleen Arnold knowledge and
belief.
Respectfully Submitted,
_______________________________
Kathleen Arnold & Timothy A. Cotten
Pro Se Plaintiffs
9543 North Side Drive
Owings, Md 20736
(410) 257-5283
105
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
Kathleen Arnold and Timothy A. Cotten, Defendants, Pro Se, hereby certify that a
true and correct copy of the above-referenced Defendants' “Motion to Set Aside Void
Order and Void Appeal Order for Want of Subject Matter Jurisdiction Pursuant to FRCP
§ 60(b)(2)(4)”, and Memorandum of Law In Support thereof, filed in the above-captioned
matter, and were served upon the parties listed below, last known legal counsel of record
as follows and done so by first class, United States Mail, Postage Prepaid, and Served on
the Following Parties on this 13th Day of January, in the year 2011:
Respectfully Submitted,
_______________________________
Kathleen Arnold & Timothy A. Cotten
Pro Se Defendants
9543 North Side Drive
Owings, Maryland 20736
(410) 257-5283
106
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§
BY THE COURT:
_____________________
J.
107
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§
EXHIBITS
1. Docket Sheets of Arnold and Cotten Demands for Remand and many
challenges and protest to this Federal Courts Subject Matter Jurisdiction and
Demand for Hearings;
2. Original Foreclosure Case No. Case Extract;
3. CFI BK Pacer Searches;
4. BK Docket History in Support of “(CMI)” being the Plaintiff Creditor;
5. Courts September 12, 2008 Multiple Case Disposition Order;
108
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§
1. Docket Sheets of Arnold and Cotten Demands for Remand and many
challenges and protest to this Federal Courts Subject Matter Jurisdiction and
Demand for Hearings;
109
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§
EXHIBITS
110
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§
EXHIBITS
111
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§
EXHIBITS
112
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§
EXHIBITS
113
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
http://caselaw.lp.findlaw.com/scripts/casesearch.pl?court=circs&CiRestriction=
%22313+U.S.+100%22&
http://ftp.resource.org/courts.gov/c/F2/959/959.F2d.628.89-1929.html
On a motion to remand, the removing party bears the burden of establishing jurisdiction. See
Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir.1996). The removal statute
should be construed narrowly with doubt construed against removal. See Shamrock Oil & Gas
Corp. v. Sheets, 313 U.S. 100, 107-09 , 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941). We look at the
complaint. As a general rule, a case arises under federal law only if it is federal law that creates
the cause of action. See Franchise Tax Board, 463 U.S. at 8 -10, 103 S.Ct. at 2846. The case,
however, may arise under federal law "if a well-pleaded complaint established that [the] right to
relief under state law requires resolution of a substantial question of federal law in dispute
between the parties." Id. at 13, 103 S.Ct. at 2848. But, the "mere presence of a federal issue in a
state cause of action does not automatically confer federal-question jurisdiction." Merrell Dow,
478 U.S. at 813 , 106 S.Ct. at 3234. See also Moore v. Chesapeake & Ohio Ry. Co., 291 U.S.
205, 212-15 , 54 S.Ct. 402, 405-06, 78 L.Ed. 755 (1934) (that part of state statutory scheme
requires some analysis of federal law is insufficient to invoke federal jurisdiction). [3]
The district court erred in denying Diaz's motion to remand. The nature of Diaz's complaint is
that Sheppard is guilty of malpractice, negligence and breach of contract under Florida law. (We
do not hint that Diaz's claim has merit or even that he has stated a claim upon which relief can be
granted under Florida law). No substantial question of federal law must be answered to
determine plaintiff's claims, and federal jurisdiction is lacking. See Ray v. Tennessee Valley
Authority, 677 F.2d 818, 825-26 (11th Cir.1982) (holding, pre- Franchise Tax Board, that
district court had no federal jurisdiction to hear malpractice case arising from defendant
attorney's representation, per appointment by court, of plaintiff in 42 U.S.C. § 1983 action).
http://foreclosureblues.wordpress.com/2010/11/17/bofa-seeks-to-dodge-state-court-
adjudication-in-ohio-robosigner-suit-requests-removal-to-federal-court/
http://www.abajournal.com/files/SSRN-id10734021.pdf
See generally Clermont & Eisenberg, supra note 2 (discussing the very low percentage of
plaintiff win rates in removed cases, as opposed to a significantly higher percentage of
114
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
plaintiff wins in cases adjudicated in state courts or those originally brought in federal
courts).
91. Fullin v. Martin, 34 F. Supp. 2d 726, 735 (E.D. Wis. 1999). See id. at
729–35 for a detailed discussion on the historical development of § 1441(c)
and accompanying analysis, which led the court to the conclusion that removal
of separate and independent claims that are not textually related to the federal
issue is unconstitutional. The court stated that allowing a federal court to take
jurisdiction over claims not textually related to the jurisdiction-conferring
federal claim would be inconsistent with article III, section 2. Id. To comply
with article III, section 2, supplemental jurisdiction is only proper where the
claims satisfy the “common nucleus of operative fact” test for supplemental
jurisdiction articulated by the Supreme Court in United Mine Workers of
America v. Gibbs, 282 U.S. 715, 725 (1966). Fullin, 34 F. Supp. 2d. at 729–
35; see also 28 U.S.C. § 1367. This conflict is addressed in more detail infra
Part V.E. removal under § 1441(c) apply very different tests that lead to
inconsistent results.
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115
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
when “they could have removed when sued alone” (if, for example,
the original suit had been between the plaintiff and the third-party
defendant, as opposed to the original defendant).92 This tool is only
available to true third-party defendants who are new to the suit, and
is unavailable to an original plaintiff to the original claim, who only
becomes a counter-defendant after an original defendant files a
counterclaim against him.93 To allow ordinary counter-defendants to
remove in this manner “would fly in the face of the well-pleaded
complaint rule where the counter-defendants were the same parties
as the state court plaintiffs.”94 This application of § 1441(c) has been
very rare and narrowly construed,95 and the other circuits that have
considered the issue disagree as to whether third-party defendants
may seek removal under the statute.96
92. Texas v. Walker, 142 F.3d 813, 816 (5th Cir. 1998) (citing Carl Heck
Eng’rs v. Lafourche Parish Police Jury, 622 F.2d 133 (5th Cir. 1980)),
(allowing a third-party indemnity defendant to remove a case to federal court
pursuant to § 1441(c)); see also Jones v. Petty-Ray Geophysical Geosource,
Inc., 954 F.2d 1061, 1066 (5th Cir. 1991) (indemnification claims based on a
separate contract are separate and independent).
93. Walker, 142 F.3d at 816.
94. Id.
95. See United States v. Pate, No. CIV.A.7:01-CV-001164, 2002 WL
47900, at *2 (W.D. Va. Jan. 12, 2002) (unpublished memorandum opinion)
(declining to extend removal under § 1441(c) to counter-defendants who
although were not original plaintiffs, were substituted as plaintiffs sometime
during the proceedings).
96. Compare Walker, 142 F.3d at 816 (allowing a third-party indemnity
defendant to remove a case to federal court pursuant to § 1441(c)), and Jones,
954 F.2d at 1066 (holding indemnification claims based on a separate contract
are separate and independent), and Carl Heck, 622 F.2d at 136 (“If the third
party complaint states a separate and independent claim which if sued upon
alone could have been brought properly in federal court, there should be no bar
to removal.”), with Lewis v. Windsor Door Co., 926 F.2d 729, 733 (8th Cir.
1991) (finding that § 1441(c) was not intended to effect the removal of a suit
with introduction of a third-party claim), and Thomas v. Shelton, 740 F.2d
478, 487–88 (7th Cir. 1984) (third-party defendants may not remove, and
Monmouth-Ocean Collection Serv., Inc. v. Klor, 46 F. Supp. 2d 385, 394
(D.N.J. 1999) (“[A]ny third-party claim for indemnification is not a claim
‘separate and independent’ from the main action, and therefore is not
removable by the third-party defendant under § 1441.”), and Fullin v. Martin,
34 F. Supp. 2d 726 (E.D. Wis. 1999) (not recognizing a right to removal under
§ 1441(c) at all), and Fleet Bank-N.H. v. Engeleiter, 753 F. Supp. 417, 419
(D.N.H. 1991) (holding that Congress intended only that original defendants be
able to remove pursuant to § 1441(c)), and Sequoyah Feed & Supply Co. v.
Robinson, 101 F. Supp. 680, 682 (W.D. Ark. 1951) (holding that under a
“strict construction” of § 1441(c), third-party defendants may not remove to
116
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
federal court). For a related discussion dealing with how to interpret “joined”
as applied to third-party claims, see First Nat’l Bank of Pulaski v. Curry, 301
F.3d 456, 464–66 (6th Cir. 2002). The court adopted a narrow construction of
“joined” to apply only to claims joined by the plaintiff in the original state
court action, likely precluding all third-party claims from satisfying the
separate and independent requirement of § 1441(c).
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where the court must decide whether the initial pleading or summons is sufficient to start the
clock, and second, where the case involves multiple defendants served at different times. The
third instance involves situations where the case becomes removable sometime after the initial
pleading. a. initial pleading and summons Recently established parameters govern whether the
pleading or summons is sufficient to start the thirty-day clock. 140 In Murphy Bros. v. Michetti
Pipe-Stringing, Inc., 141 the Supreme Court addressed the scope of the word “otherwise” in §
1446(b), which states that the defendant must file notice of removal thirty days after receiving
the complaint “through service or otherwise.” 142 The Eleventh Circuit Court of Appeals had
held that the plain meaning of “otherwise” required that the thirty-day clock be triggered when
the
defendant received constructive notice of the complaint via a faxed “courtesy copy,” not when
the defendant was formally served. 143 The Supreme Court reversed, holding that “mere receipt
of the complaint unattended by any formal service” was insufficient to start the thirty-day
period. 144
The Court also articulated a “road map” for courts to follow when determining at what point the
thirty-day clock should start running. 145 First, where the summons and complaint are served
together, the clock starts running immediately. 146 Second, where the defendant first receives the
summons, and then receives the complaint at a later date, the clock is triggered upon receipt of
the complaint. 147 Third, where the defendant receives the summons and the plaintiff is not
required to serve the defendant with the complaint, the clock will run when the complaint is
117
Arnold et. al. vs. CitiMortgage Inc. et. al., for FRCP § 60(b(2)(4) Motion to Set Aside “Void Orders”, Case No: RWT 07-2617, (All
Consolidated Cases as Detailed in Case and Party Chronicle Apart to this Motion)
made available through filing.148 Lastly, where the complaint is filed in court before any service,
the clock will run upon the defendant’s receipt of the summons.14
140. See Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 353–
54 (1999); Whitaker v. Am. Telecasting, Inc., 261 F.3d 196 (2d Cir. 2001).
141. 526 U.S. 344 (1999).
142. 28 U.S.C. 1446(b).
143. Michetti Pipe Stringing v. Murphy Bros., 125 F.3d 1396, 1398 (11th
Cir. 1997), rev’d, 526 U.S. 344 (1999).
144. Murphy, 526 U.S. at 347–48.
145. Id. at 354 (citing Potter v. McCauley, 186 F. Supp. 146, 149 (D. Md.
1960)).
146. Id.
147. Id.
118