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STAY OF EXECUTION: POLITICALLY MOTIVATED EVICTION OF NIGERIA PRESIDENTIAL CANDIDATE 2011
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COMMONWEALTH OF MASSACHUSETTS LAWRENCE DIVISION OF THE NORTHEAST HOUSING COURT DEPARTMENT ______________________________ _____________________________ MOTION OF PHILLIP OFUME AND FAMILY FOR STAY OF EXECUTION AND WAIVER OF BOND OR CASH AND PRELIMINARY INJUNCTION PURSUANT TO MASS RULES OF APPELLATE PROCEDURE RULE 6 AND MASSACHUSETTS RULES OF CIVIL PROCEDURE 65 PENDING DEFENDANT'S APPEAL CLOSED AND WHICH THE HONOURABLE PRESIDING JUDGE REVEALED ON AUGUST 4, 2009 WAS DISMISSED CASE NOs. 2009-P-0697; 2009-J-0020; 2009-J- 0156; etc Lower) CASE NOs. 08-SP-003967; 08H77SP003967; etc ______________________________ Pursuant to M.R.A.P. 6 and M.R.C.P. 65 the Applicant, Ofume family moves this Court to enter Temporary Restraining Order immediately thus, restraining Plaintiff and her officers, agents, other parties in this case, servants and/or attorneys from doing the following: OFUME V. NANCY VIGORITO 08H77SP003967 3. Applicant, Ofume family further moves for a Preliminary Injunction. In support of this Motion, Applicant-submits-Verified Memorandum of Law which is hereto verified under oath and will contain argument and exhibits and other material references/evidence Respectfully submitted, ________________ TO: Ms. Susan M. Trippi Acting Clerk I, Dr. Phillip C. Ofume, Representative/Advocate for the Applicant or co-applicant hereby certify that I have served the foregoing document, upon all parties, by mailing a copy, first class, postage prepaid to: Sal & Nancy Vigorito _____________________ DATED: August 5, 2009
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COMMONWEALTH OF MASSACHUSETTS LAWRENCE DIVISION OF THE NORTHEAST HOUSING COURT DEPARTMENT ______________________________
_____________________________ MOTION OF PHILLIP OFUME AND FAMILY FOR STAY OF EXECUTION AND WAIVER OF BOND OR CASH AND PRELIMINARY INJUNCTION PURSUANT TO MASS RULES OF APPELLATE PROCEDURE RULE 6 AND MASSACHUSETTS RULES OF CIVIL PROCEDURE 65 PENDING DEFENDANT'S APPEAL CLOSED AND WHICH THE HONOURABLE PRESIDING JUDGE REVEALED ON AUGUST 4, 2009 WAS DISMISSED CASE NOs. 2009-P-0697; 2009-J-0020; 2009-J- 0156; etc Lower) CASE NOs. 08-SP-003967; 08H77SP003967; etc ______________________________
A. BACKGROUND
1. On August 04, 2009 before The Honourable Presiding Judge David Kerman of the Lawrence Division of the Massachusetts Northeast Housing Court Department Holden in Lynn, MA heard/allowed Plaintiff's, Nancy Vigorito purported (1) Motion for Unpaid Rent and Costs and (2) Motion for Issuance of Execution upon disputed shelter (hereinafter, "apartment located at 33 Arlington Street #1, Lynn, MA 01902) without including payer of rent and locators of shelter or Massachusetts Department of Transitional Assistance (DTA) and Metropolitan Boston Housing Partnership (MBHP) as responding parties to the motions.
2. Under Lease Agreement dated February 3, 2006 between MBHP and the Ofume family or Defendant, the family was placed in the disputed apartment or shelter. Defendant has no tenancy relationship with the Plaintiff and defendant is not responsible for paying rent, utilities, etc. The husband (Salvatore Vigorito) of the Plaintiff (Nancy Vigorito) signed Lease Agreement with MBHP and defendant is not party to this lease agreement.
3. Under the lease agreement which Plaintiff’s husband signed with these Massachusetts agencies (DTA & MBHP), in early 2007 with The Massachusetts Superior Court Department, Lawrence, DTA and MBHP commenced administrative Possession/ Eviction/Transfer/Quit Notices under the Massachusetts administrative proceedings governed by the State of OFUME V. NANCY VIGORITO 08H77SP003967
Massachusetts rules, regulations and laws following - Mass. G.L.c. 258, § § 1, 2, 3, and 4; 106 CMR 309.070(A); 106 CMR 309.040; G.L. c. 18, section 2; G.L. Chapter 30A and Chapter 16; 106 CMR 343, 367, ;106 CMR 309.040; G.L.c 30A & Chapter 18 s. 16; 106 CMR 343.245(A)(6); etc. After all the administrative appeals, the Appellant, Phillip Ofume and family filed notice of appeal with The Massachusetts Superior Court Department, Lawrence - Ofumes v. DTA Civil Docket No. ESCV2006-00381 CONSOLIDATED with DTA's Appeal No. 315921. Defendant’s appeals are still pending before The Massachusetts Superior Court
4. To request The Massachusetts Superior Court Department, Lawrence to expedite action on these appeals, Defendant filed Application (M.G. L. c. 249, § 5) with The Massachusetts Supreme Judicial Court for relief to compel Superior Court, Lawrence to move family's Notices of Appeal forward. Defendant has advanced the proceedings/process to The Supreme Court of the United States. Notwithstanding series of opposition against the jurisdiction of this Court there is a conference hearing scheduled by this court on August 11, 2009 to hear questions raised on the poor conditions of the disputed apartment. The last prong of the directions of The Supreme Court of the United States on request for written order of The Honourable Justice David Kerman which removed lead defendants Nancy/Salvatore Vigorito has been responded to by the defendant and the Ofume family is waiting for the decision of The Supreme Court of the United States.
5. Very interesting, On August 4, 2009 The Presiding Honourable Justice David Kerman allowed another Civil part of these litigations to continue in this Court. Defendant’s Complaint is on the poor conditions of the disputed apartment SEE BREAKING NEWS http://www. google.com/search?hl=en&ei= 6. Defendant filed Opposition/Memorandum to Plaintiff’s Motions for Unpaid Rent and Costs which did not include DTA and MBHP. Plaintiff's Motion afore-referred was addressed to wrong party (Defendant or Ofume family); in this proceeding there are direct and indirect parties following, Ofume family, Massachusetts Department of Transitional Assistance (DTA); Metropolitan Boston Housing Partnership (MBHP); Nancy & Salvatore Vigorito; National Grid, Northborough, MA; Lynn, Water & Sewer Commission; Governor of Massachusetts, Deval Patrick; and Mayor of Lynn, Edward Clancy. All these litigations relate to payment of rents, utilities, relocation to another shelter, poor conditions of 33 Arlington Street #1 Lynn, MA 01902, etc. 7. On August 4, 2009 Judge Kerman told Dr. Ofume that his family’s has been dismissed by the Mass Court of Appeals. After the hearing on August 4, 2009 defendant telephoned Massachusetts Court of Appeals and the Clerk refused to speak but a staff OFUME V. NANCY VIGORITO 08H77SP003967
told Defendant, Dr. Phillip Chukwuma Ofume that the case was closed in letter dated August 3, 2009 and the hearing appealed/requested to be stayed was heard on August 4, 2009. The staff further informed Defendant that the appeal was closed because of multiple case files in the Court of Appeals and defendant's failure to file Brief and Appendix and certificate of Compliance [(M.R.A.P. 16 (k)].
8. Severally, Defendant protested to the Clerk of the Court of Appeals against processes based on multiple case files which were used to hide Defendant's Brief (11 copies) , Appendix (3 copies), certificate of Compliance [(M.R.A.P. 16 (k), etc. The letter of the Massachusetts Court of Appeals dated August 3, 2009 mailed by US Postal Service which Defendant received today (08/05/2009) also questioned duplication of case file by the Court of Appeals.
9. Plaintiff abandoned Defendant's appeal and failed to file Brief, Appendix, etc. and respond to all Motions which Defendant filed with the Court of Appeals.
10. Plaintiff's Motion for Unpaid Rent and Costs before this Court on August 4, 2009 did not include DTA and MBHP. DTA and MBHP are responsible for the payment of the rents, utilities, maintenance, etc. Defendant restates that the disputed apartment or shelter was provided to the Defendant by the agencies of the States of Massachusetts pending Defendant's immigration case now appealed to The US Court of Appeals for the First Circuit (No. 09-1610) or job authorization and employment.
11. In the Massachusetts Court of Appeals, some clerks, and other administrators have been mounted to censor and block motions, applications, petitions, transcripts, create different case files to confuse appeal proceedings, etc. For example, Defendant (Ofume) filed its BRIEF (11 copies), APPENDIX (3 copies), TRANSCRIPTS (2 copies of each of the proceedings on November 25, 2008 and December 30, 2008) on May 6, 2009 and VERIFIED CERTIFICATE OF COMPLIANCE WITH MASS RULES OF APPELLATE PROCEDURE RULE 16 (K) IN SUPPORT OF APPELLANT'S BRIEF was filed on May 11, 2009. Defendant's Brief, Appendix and Cert. of Compliance are attached and marked EXHIBITS "K", "L" and "M"
12. The brief and appendix were received and stamped by the Massachusetts Court of Appeals but the unknown Court Clerks claimed that they have not received Appellant/Defendant's brief, appendix, etc. These clerks have written some letters without their signatures and severally without names. Defendant's copies were stamped but the Clerk of the Court continued to deny receipt. The same activities continued in the Massachusetts Superior Court, Lawrence, Massachusetts Northeast Housing Court, Lawrence, Massachusetts Supreme Judicial Court, and the Supreme Court of the United States purpose of making the case endless.
13. Under shared appeal procedural responsibility, Defendant has completed its part of this shared responsibility. Plaintiff has not filed appellee's brief, appendix, etc. and also failed to respond to 100% of OFUME V. NANCY VIGORITO 08H77SP003967 several defendant's pre-review motions, application, etc.
14. The Supreme Judicial Court received Defendant's application (M.G. L. c. 249, § 5) requesting relief for disclosure of copies of the tapes of the proceedings before Judge Kerman on November 25, 2008 and December 30, 2008. In this application, Defendant requested for stay of proceedings pending review of these tapes because the purported court approved transcriber mistranscribed these proceedings. Defendant’s Application (M.G.L.c. 249, § 5) is attached and marked EXHIBIT “O”
15. Shocking, today (08/05/2009) Appellant/Defendant received entry of the Massachusetts Court of Appeals dated August 3, 2009. The huge complicity in this case is that Judge Kerman's oral Order upon which stay is sought is dated August 04, 2009. Tested question is whether non-express couriers postmarked in Boston, MA en route Lynn, MA would be received in Lynn, MA on August 4, 2009 at 9.00 a.m. The answer is "No" from court to court across the United States. Entry of the Massachusetts Court of Appeals dated August 3, 2009 CLOSING Appellant/Defendant's Appeal is hereto attached and marked EXHIBIT "N".
B. UNDISPUTED EVIDENCE STAY OF EXECUTION AND WAIVER OF BOND OR CASH AND PRELIMINARY INJUNCTION MUST BE GRANTED PENDING APPEAL
1. Fact severally stated above in PART A shows without iota of doubts that Appellant's appeal will succeed before The Commonwealth of Massachusetts Supreme Judicial Court or The Supreme Court of the United States.
3. All costs, house rents, electric bill, water and all other utilities in this apartment is expected to be paid by the State of Massachusetts through its agency ( DTA).
4. The Lease agreement between the Applicant and DTA & MBHP and the conditions per the rights of unemployed refugee/asylee and sheltered families in the State of Massachusetts require that DTA pays everything pending job authorization and employment and relocate the Applicant/defendant to 4 or 5 bedroom apartment in Lynn with good proximity to the children's formal and informal school programs in Lynn, MA and also considering parents
OFUME V. NANCY VIGORITO 08H77SP003967 poverty conditions. Parents suffer zero income and five children get under-14 food stamps and starting from May/June 2009 only one child (US born) gets $190 x 2 /month. Prior May/June 2009 she was paid $120 x 2/month excluding cash machine charges.
5. Several 4 or 5 bedroom apartments have been found by the Defendant in Lynn but DTA and MBHP seized the Voucher which is the rent and utilities payment legal tender approved by the State of Massachusetts. Suspicious quit/ eviction/transfer notices; failure to release voucher and relocate/transfer defendant into several apartments in Lynn are pending before The Superior Court Department, Lawrence, and Massachusetts Supreme Judicial Court, Boston. All the evidence or exhibits mention in this paragraph are marked EXHIBITS A, B, C, D, E, F, G, ETC in support of the Defendant's opposition to the Plaintiff's Complaint (11/01/2008) and Motions and have been part of this Court’s case files. 6. DTA and MBHP want to issue Mass Housing Voucher if Ofumes agree to take distance apartments and motels (over 20 miles from Lynn, MA) or Dorchester, Mattapan, Jamaica Plain and also if Dr. Ofume and his family agree to move back to Canada with gift of FIVE THOUSAND US DOLLARS ($5,000.00). 7. Defendant or Applicant, Ofume family is Refugee and stateless person granted asylum in the United States on September 29, 2005 and October 7, 2005. Applicant suffers zero-income to the extent that the family is provided with starvation humanitarian assistance mentioned above without job authorization and with pending asylum application before the United States Court of Appeals for the First Circuit and only issue sought to be resolved is expired biometric test. Prior to this stage, Government of the United States has abandoned the case but the new government has decided to show pockets of appearance. 8. Plaintiff's motion/complaint appealed failed to include DTA and MBHP which makes her motion/complaint to be directed to wrong people (Ofumes). Plaintiff seeks payment of an overdue rent without including RENT PAYERS. Also Plaintiff brought possession against another possession complaint pending before The Lawrence Superior Court. Rents, utilities, etc are paid by the DTA and MBHP provides the shelter or apartment. Under normal judicial circumstance, Plaintiff Motions and Complaint would be doomed because DTA and MBHP are accredited and problem solving jurisdictions which Plaintiff must make parties to her complaint and motions. C. STATEMENT OF ARGUMENT
1.
a. DTA and MBHP that are responsible for relocating Defendant to another apartment or shelter in Lynn, MA and also responsible for paying any overdue or advance rents, utilities, etc . DTA and MBHP were not part of Plaintiff's Motions and Complaint. Conditions of the defendant is not solvent to pay overdue or advance rents, utilities, etc and relocate defendant to another
OFUME V. NANCY VIGORITO 08H77SP003967
shelter.
b. Defendant filed complete Brief, Appendix and Certificate of Compliance. Plaintiff did not file Appellee's Brief, Appendix, Certificate of Compliance and failed to oppose all motions, applications, petitions, etc filed by the Defendant/Appellant with the Massachusetts Court of Appeals.
c. Court of Appeals' reason for closing Appellant's appeals is unknown and Northeast Housing Court, Lawrence, MA reasons for granting Plaintiff's motions for payment of the purported overdue rents and possession when DTA and MBHP or rent payers were not parties to Plaintiff's motion are also unknown.
d. Hearing motion which pleaded payment of overdue rents whereas Plaintiff's Complaint sought eviction and overdue rent is not part of the Complaint and rent payers are not part of the complaint and the appeal was pending to the extent that entry closing Defendant appeal was issued on August 3, 2009 thus, less than 24 hours following entry of oral decision allowing Plaintiff Motions which sought payment of overdue rent and also seeking possession when appeals on possession are still pending appear to be disruptive to normal flow of judicial activity in both ancient and modern times.
e. Per merit of this case before any constitutional and civilized judicial system, Appellant, Phillip Ofume and family seek a stay pending his and family's appeal of this Court's and Appeal Court decisions because the action of the court below and above is hasty and oversight that the Plaintiff's Motions are directed on to wrong party (Ofume family) and plaintiff’s motions were allowed under predetermination or entry (08/03/2009) of the Mass Court of Appeals without consideration of the hearing on August 4, 2009. f. Mismanagement of this litigation below is jurisdiction base over subject matter (possession/eviction/quit/
g. Reason for these serial appeals is because DTA and MBHP are without consideration of the conditions of the children and parents which are the major bone of contention before these Courts across the United States; such as cancellation of voucher; conspiracy folded in deliberate seizure of the MASSACHUSETTS RENTAL VOUCHER which is the key to get apartment; further conspiracy folded in deliberate sanction on the Applicant struggle to take one of the several 5 or 4 bedroom apartments in Lynn, MA because of seizure of the Rental Vouchers which remained seized at the instance of paid assignment by the Applicant's political rivals. h.. The school and untransferrable programs within Lynn Public School make the ORIGINAL possession/eviction/quit/ OFUME V. NANCY VIGORITO 08H77SP003967
the MASSACHUSETTS RENTAL VOUCHER PROGRAM (MRVP) to overshadow the interruptive proceeding by the Plaintiff because without Voucher the i. The Supreme Court of the United States has stated that the factors regulating the issuance of a stay pending appeal "are generally the same" (see Hilton v. Braunskill, 481 U.S. 770, 776, 107 5. Ct. 2113, 95 L. Ed. 2d 724 (1987 and Hinrichs v. Bosma, 440 F.3d 393 (7th Cir. 2006). Applicant further argues these similarities 2. PRELIMINARY INJUNCTION a. This Court, Massachusetts Supreme Judicial Court, Mass Court of Appeals, Supreme Court of the United States may directly and indirectly agree to all or part of the four-part test and that injunction must not overbroaded with cloud of unnecessary crossfire. These Courts including the lower court, agree that a party seeking a preliminary injunction must meet a four-prong test following:
That he/she must establish: (1) that he/she is likely to succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. c. The above leading grand factors are rephrased and proffering specific test question at issue and answer as follows: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; AND (4) where the public interest lies and suffers.
d. ANALYSIS OF ISSUES 1, 2, 3 & 4 ABOVE: i. The first punch of this test has a strong standing at close range to knock down the position of this Court because this court lacks jurisdiction over subject matter (possession/eviction/quit/ 7 OFUME V. NANCY VIGORITO 08H77SP003967 and MBHP are persons. DTA and MBHP are agencies of the state of Massachusetts and even if they were persons, these agents have commenced case of possession/eviction/quit/ ii. The second punch of this test is that state, federal and Supreme Court of the United States have reviewed the position of similar children and their parents as the major point of consideration in relocating or transferring children and parents to another place. This reason why the ORIGINAL case which considers these conditions must be allowed to decide the case of POSSESSION/TRANSFER/ QUIT/EVICTION NOTICES and MRVP because the children and parent can not relocate out of Lynn Public School System and the Ofume family cannot get apartment in Lynn without decision on the MRVP. Relocation out of Lynn will force the children to forfeit their education which proceeds in America by age. The contrary will amount to enormous irreparable damage and harm to the children and parents. iii. Third punch shows that issuance of the stay will not injure the Complainant and second Respondent and also third and fourth Respondents because the Complainant or Plaintiff and her husband have been enjoying an unqualified month rents under over 150 unfixed housing violation citations issued by the Massachusetts Inspectional Services of the Department of Health and Human Services dated June 26, 2007 and June 2008 and the approved representatives of the MBHP and DTA. Finally, the fourth punch is that the public interest would be served by stopping the forcible removal of children from their schools and special program of studies; respect for the US Education for all which is designed as NO CHILD LEFT BEHIND and the United Nations Convention on the Rights of the Child as to access to right to education; etc. The conditions of the seven children and their two parents solve and cure most recent clarification and advice of The Supreme Court of the United States (11/12/2008) because the Public and the laws which the United States and the United Nations made for the same public interest support the cases of the Applicant, NO CHILD LEFT BEHIND and the United Nations Convention on the Rights of the Child as to access to right to education; etc. The clarification of The Supreme Court of the United States. is cited in the case of WINTER, SECRETARY OF THE NAVY, ET AL. v NATU-RAL RESOURCES DEFENSE COUNCIL, INC., ET AL. (11/12/2008) "Even if plaintiffs have demonstrated a likelihood of irreparable injury, such injury is outweighed by the public interest..." Also see Weinberger v. Romero-Barcelo, 456 U. S. 305, 312
OFUME V. NANCY VIGORITO 08H77SP003967 D. CONCLUSION Based on the above stated grounds and attached Notice or Petition for Review to the Mass. Supreme Judicial Court, Defendant/Appellant, Phillip Ofume and family requests that this Court grant Stay of Execution and waiver of bond or cash and preliminary injunction pending appeal.
Respectfully submitted, certified under pain and penalty of perjury _______________________ TO: The Acting Clerk-Magistrate, Ms. Susan Trippi Clerk of the Court Clerk of the Court 9
OFUME V. NANCY VIGORITO 08H77SP003967
CERTIFICATE OF SERVICE
I, Dr. Phillip C. Ofume, Representative/Advocate for the Applicant or co-applicant hereby certify that I have served the foregoing document, upon all parties, by mailing a copy, first class, postage prepaid to: Sal & Nancy Vigorito _____________________ DATED: August 5, 2009
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