COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss.
BOSTON DISTRICT TRIAL
COURT
HOUSING COURT
DEPARTMENT
CITY OF BOSTON DIVISION
Civil Action
Docket No . 13H84SP002057
______________________________________________________________________________
Phillip Ofume (on
behalf his family)
Applicant/Defendant (pro se)
v.
Cynthia Hector and Allan Hector
Respondent/Plaintiff
______________________________________________________________________________
APPELLANT,
PHILLIP OFUME’S VERIFIED MOTION/MEMORANDUM
FOR STAY OF THE JUDGMENT OF
JUDGE MARYLOU MUIRHEAD (06/19/2013) AND EXECUTION AND RELATED PROCESS AND
WAIVER OF BOND OR CASH AND PRELIMINARY INJUNCTION PURSUANT TO M.R.A.P.
RULE 6 ; M.R.C.P. 65; Mass. G.L. c. 186; §14, Gen. L. c. 12, §§ 3 and 10; Mass.
Gen. L. c. 214, § 1; Mass. Gen. L. c. 223, § 5; PENDING DETERMINATION OF
APPLICANT'S APPEAL
______________________________________________________________________________
A.
STATEMENT OF MOTION
Pursuant to M.R.A.P. 6 and M.R.C.P. 65 the Applicant,
Phillip Ofume moves this Court to
enter Order staying Judgment of The Honourable Justice Marylou Muirhead dated June 19, 2013 and also restraining
Order be entered immediately thus,
restraining Plaintiff and her privies, officers, agents, other parties in
this case, servants and/or attorneys from doing the following:
1.
Taking
or enforcing or enforcing any Order based on the Judgment of Judge
Muirhead dated June 19, 2013 on Plaintiffs
(a) payment of an unfounded unpaid rent
and costs for the inhabitable two bedrooms because Plaintiffs are the debtor
because they are indebted to the Applicant of the advance rent paid to them
which extends to June 2014 EXHIBITS A & A.1 through W; (b) Stay any motion for
issuance of execution; (c) stay any
action of other parties in this case and their officers, agents, servants
and/or attorneys; (d) issue emergency order on National Grid reconnect hot
water and cooking gas because Applicant and his family are not owing National
Grid because in addition to the utility over-payment made by the applicant and
his family through the landlords, applicant made another large over payment in
March 2013 in which Applicant and his grantor, ABCD, Inc. paid National Grid
the sum of $635.00 (March 2013) and suspected that this money may have been diverted
and embezzled by the corporate executives of National Grid, on June 5, 2013 the
landlords (Blacks) gave about $300.00 cash to some Black staff of the National
Grid to re-disconnect applicant’s and
his family’s hot water and cooking gas. [(see EXHIBITS
B, C, D, E, F, G, H, I, J, L, M, N, O,
P, Q, R, S, T, U,V, W (molds)],
2.
Order of this Court on June
19, 2013 be stayed pending appeal upon expiration of the advance rents which
appellant paid to the landlords this Court order that payment of month to month house rent be made into
this Court
3. Order barring other parties from disconnecting Electricity
in the Applicant's apartment . pursuant M.R.A.P. 6 (Civil) and M.R.C.P.
65 and the utility bills paid to the utility companies through the landlords
which is in dispute be stayed pending appeal and future utility be paid by the
Appellant to the Utility and that any disagreement be reported to this Court by
Motion.
.
4. 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.
B. MEMORANDUM OF LAW
A. INTRODUCTION
5. Pursuant to Federal Rules of Appellate Procedure 18 and
Massachusetts Rules of Appellate
Procedure
6, Applicant/Appellant (Dr. Phillip
Ofume) moves this honorable court for relief nature of Stay and Preliminary Injunction to prevent unlawful
eviction; rent payment to the landlord without
completion of the advance monthly rent and utility payment to the landlords as
detailed below; stay of utility
termination or breach of quiet enjoyment of the disputed apartment immediately subject to other action by the
Respondents/Plaintiffs which may lead to
any eviction process, sale, transfer of ownership, and forcible possession of Applicant’s rental apartment located at 41 Gallivan Boulevard 1st Floor Dorchester, MA
02124 and Waiver of Bond or Cash and Preliminary Injunction Pending Appeals and on-going Petition for Review of
the Final Judgment appealed of The Hon.
Justice Marylou Muirhead and because the respondents believe in using unlawful measure to evict tenants with/without
children and Applicant/Appellant requests for swift emergency Order staying any
action by the Respondents/Plaintiffs and their
officers, sheriffs, agents, servants, privies, assigns and attorneys
pending reviews/appeals
6. Staying the action of the landlords and,
utility companies from terminating utility services to the disputed apartment
or breach of quiet enjoyment of the disputed apartment.
B. REASON STAY
SHOULD BE GRANTED
7. Applicant’s NOTICE OF APPEAL Complaint are pending and appealing the final judgment of Judge
Muirhead’s rushed and unlawful trial to the Mass Court of Appeals and Applicant’s
Complaint is pending in the Suffolk County Superior Court and Motion for Summary
Judgment are pending and appealed and that
this Motion should be granted because the forced trial of Judge Muirhead
violates 5th and 14th Amendments to the Constitution and
Bill of Rights of the United States and through these appeals and complaints
applicant will prevail and get the intended justice in this case.
8. There was forced
hearing on May 30, 2013 and June 7, 2013 and
Applicant/Appellant was sanctioned by Judge Muirhead to issue subpoenas
on his witnesses and present his witnesses, exhibits and other evidence in
support of his defence; landlords and applicant/appellant were barred by Judge
Muirhead from using the remedy of mediation and dispute resolution before
Housing Specialist in breach of the Supreme Judicial Court Rule 1:18 of The
Uniform Rules on Dispute Resolution; Applicant/appellant was forced to start
trial when no trial was scheduled and Applicant was not ready or no notice of
trial was issued orally or written by the Judge or Clerk and also the second or
final trial was mark up short date
Thursday, May 30, 2013 to Friday
June 7, 2013 and apart from the fact that the date was short, on Friday May 31,
2013 Applicant came to court to take copies of the exhibits containing list of
three major witnesses and other information containing information witnesses
information which the Judge took from applicant and respondent; etc but the
clerks searched for this case file for over days and unfound about two days to
the final trial the senior clerk told applicant that Judge Muirhead was with
the file.
9. May 30, 2013 was suggested by Order of The
Presiding Hon. Justice sitting in another courtroom #15 to enable Applicant
re-serve the landlords through their Attorney, Mr. Austin O’toole by Certified
Mail, his Complaint, amended complaint, further amended complaint, answer,
counterclaim and opposition to the landlords’ Eviction Complaint all of which
Applicant used the service of the County Sheriff to serve and original copies
of the Sheriffs’ Proof of Service were
given to Clerk of the Court in courtroom #15 and when the Applicant
requested the Clerk by Motion to return
the Proof of Service, the Clerk told applicant that Sheriff proof of service
has been stolen from the case file.
10. May 30, 2013 was scheduled to enable
applicant to report and show return card of the Certified Mail and for the
Judge to give directions in these two cases ( Applicant’s Complaint and
Counterclaim and Landlords’ Eviction Complaint). Schedule for the Landlords’
Eviction Complaint was the first appearance since entered or filed on May 20,
2013.
11. None of these two cases were scheduled for
trial but Judge Muirhead abandoned applicant’s Complaint which was filed since
April 4, 2013 and Judge Muirhead forced Applicant (Dr. Phillip Ofume) to start
trial which was not scheduled for May 30, 2013, no case docket number assigned
to landlords’ eviction complaint and
without Dr. Ofume’s witnesses in court
because no trial was scheduled for May 30, 2013 and the landlords have had
secret discussion with the Court to do what they did on May 30, 2013. When
Judge Muirhead succeeded in creating avenue to sanction Dr. Ofume’s witnesses
and exhibits, short adjournment for June 7, 2013 was imposed on Dr. Ofume to
block him from presenting his witnesses.
To achieve this goal, Judge Muirhead impounded the case file.
12. The on-going appeal is the only chance
Applicant and his family have to present their defence, counterclaim and claims
on the infractions which they have suffered in the hands of the landlords and
this Court.
13. To present time The Hon. Justice Muirhead
has not used her mathematical calculator to do a simple maths such TOTAL
CASH PAID BY THE APPLICANT IS $2590
+$2354.68 = $4944.68 but the landlords in an exhibit taken and entered by Judge
Muirhead admitted $2354.68 and denied $2590.00 and the landlords admitted TOTAL
CHECK PAID BY THE CHURCH OF JESUS CHRIST $3,825.32 + $1, 928.09 = $5753.41 . Simple Mathematics
show that TOTAL CHECK & CASH PAYMENTS: $10,698.09/ $400.00 = 27Months but if
taken from the payment of the churches and cash/check which we paid minus which
the landlord admitted $3,825.32
+ $1, 928.09 + $750+$2354.68 = $8858.09 / 400.00 = 22 months 1weeks.
14. From a
re-computation taken from the hearing on June 7, 2013 22 months 1weeks was
admitted by the landlords and they denied majority of the cash which Applicant
paid.
15. Computing
the balance of the paid rent, Applicant and his family are not owing the
landlords and utility company any rent and utility bill. Particularly, if the
Presiding Hon Justice has not predetermined
her final judgment , under normal circumstance she
would have used maths calculator to
divide the version of the advanced rent payment which are 22months 1week on FIRST PART and 27months on SECOND PART; Judge should have dismissed the
landlord’s eviction complaint because the landlords are owing the applicant and
his family several months of advance rents paid to them and the claim of rent
owing and overdue is fraudulent and must be dismissed in any transparent court
proceedings.
C. JURISDICTION
14. Reference to the foregoing Judge Muirhead is
unfit to take this Motion and notwithstanding that the majority of Judges
applicant has met and taken his cases, there is transition of denial from judge
to judge.
15.. Generally, without the
mess made in this case, this Court has jurisdiction over this matter pursuant
to Mass. Gen. L. c. 214, § 1.
16. Venue is not proper
pursuant to Mass. Gen. L. c. 223, § 5 because of the highhanded obstruction of
justice which applicant has suffered stage by stage.
17. Rights
of the tenants/landlord pursuant to Mass. G.L. c. 186, §14 have remained
unsecured on the side of the tenant and his family.
18. 5th and 14th
Amendments to the Constitution and Bill of Rights of the United States are
severely jeopardized and ruined.
D. ARGUMENT ON REASON STAY IS PRACTICABLE
AND INEVITABLE
19. Stay of the unofficial pushes to terminate
applicant’s and family’s tenancy prematurely and loss of the advanced rents
which they have paid and which extend to June 2014 stand with edge on reason
this extended Motion for stay should be granted and review court above should
be allowed to review applicant’s appeal.
12.
Incorrectly on page 5 (para 2) of the final Judgment of
Judge Muirhead contradicted her entire judgment when she wrote; “As of April 11,
2013, the defendant was behind in his rent and had not himself paid any rent
since October 2012.” Judge Muirhead did not read any part of Appellant’s
submissions to the Court below because in October 2012 Appellant paid
Respondents, Mr. & Mrs. Hector the sum of $3,825.32 which is further advance payment.
13. Judge
Muirhead allowed the ONLY Lease between the landlord and Dr. Ofume but
Judge Muirhead did not do simple
arithmetic to find out the number of $400.00 per month that will be on the
following payment:
June 13,
2012 ..............................................................$400.00
July 1,
2012...................................................................$750.00
August
1, 2012...............................................................$750.00
Gas.................................................................................$53.09
TOTAL DUE:
.................................................................$1, 928.09
(Check) EXHIBIT G
September
1, 2012...........................................................$750.00
October1,
2012.... .............................................................$750.00
November
1, 2012..............................................................$750.00
(cash – rent)
Gas...................................................................................................$85.32
Electricity………………………………………………………………………………………$95.00
December
2012……………………………………………………………………………..$750 (cash – rent)
January
2013…………………………………………………………………$645.00.32 ($600.00 rent & $45.32 Ut)
February
2013………………………………………………………………………………..$750.00 (cash rent)
March
2013…………………………………………………………………………………….$750.00
April
2013………………………………………………………………………………………..$750.00
TOTAL PAID:
......................................$3,825.32
(Check) EXHIBIT H TOTAL PAID………………………………………….$2354.68
(Cash)
October 2012
……………………………………………………………………………………..$300.00 (cash - water)
November
2012………………………………………………………..$350.00(cash – rent)
December
2012………………………………………………………..$750.00 (cash – rent)
January
213…………………………………………………………….$250.00 (cash – NSTAR)
February
2013…………………………………………………………..$40.00 (cash – nat. grid)
February 2013………………………………………………………….$750.00 (cash –
rent)
March
2013………………………………………… …………………..$150.00 (cash –nat grid)
TOTAL CASH PAID: ………………………………………..$2590 +$2354.68 = $4944.68
TOTAL CHECK
PAID………………………………$3,825.32
+ $1, 928.09 = $5753.41
TOTAL
CHECK & CASH PAYMENTS:
$10,698.09 ./. $400.00 = 27Months
14. Judge Muirhead (white) has extensive
difficulties to believe what a Black person says and she admitted and entered judgment on what
the Black landlords said through a white attorney. This reason why Judge
Muirhead encountered overwhelming setback during the two days forced trial when
she over ruled all Appellant’s payment
and accepted the payment made by The Church of Jesus Christ of Latter-day
Saints and reluctantly accepted what a predominantly black church, The Fountain
of Grace Church paid ($750.00) which are computed as $3,825.32 + $1,
928.09 + $750 = $6503.41 ./. 400.00 =
16 months 2weeks. Mid-June 2012 through mid-June 2013 is 12
months and also the advance payments extend to September 2013 if only what the Church of Jesus Christ of
Latter-day Saints and, the Fountain of Grace Church paid ($750.00 were
accepted, Judge Muirhead denied all the payment s made by Dr. Ofume and his
family including their rent and utility payments which the landlord admitted in
evidence (see above list of payment).
15. The
landlords were granted amnesty for receiving $10,698.09 without payment
receipts issued to applicant and his family. Per the lease signed between
applicant and the landlords, $400.00 and the landlords forced them to pay
$750.00 and they continued to pay to
have roof over their head. Out of the $10,698.09 the landlords
refunded ($300.00) part of one over payment of $350.00 of $750.00 over-payment
and the landlords have refused to refund
over-payment and in page 3 of Judge
Muirhead decision she acknowledged the refund in para 2 of page 3 to the extent
on page 2 para 5 that there was no time there agreement that the rent will be
above $400.00. The landlords told Dr. Ofume the over payment be advanced into
future months.
D. PRELIMINARY INJUNCTION
16.
The case coverage and heard by
this Court over time period and the position of other courts including the
Supreme Court of the United States show that these Courts have
agreed in their majority that Injunction must not be confused with
unnecessary submissions. They agreed that seekers of preliminary injunction
must meet a four-prong test. Thus, seekers must establish:
.
16.a. Four Tests to Allow Injunction:
16.a (i) seeker
of this type of injunction is likely to succeed on merit of the on-going
case. There is an overwhelming chance
that applicant will prevail such as multiple obstruction of justice sanctioned
by 5th and 14th Amendments to the Constitution and
Bill of Rights of the United States and the Constitution of the Commonwealth of
Massachusetts.
16.a (ii)
seeker of this type of injunction is likely to suffer irreparable harm in the
absence of preliminary injunction. The
landlords have received advanced rents and utility which extend to several
months ahead and applicant also pays for the utility and the advance rents paid
to the landlords have earned them several thousand of dollars and these rents
extend to June 2014. Applicant and his family will cause them homelessness
because the landlords continued to give them negative reference and boldly and
heartlessly Judge Muirhead told applicant that she cannot do anything about
that which is contrary to the action of several judges in the Mass Housing
Court. For example, the matter of Ofume v. RST Investment Group Inc. et als,
the Presiding Judge ordered Summary Judgment Agreement be written sanctioning
Negative Reference in paragraph 11 of this agreement. The Judge, clerk,
landlords and tenants signed(See Ofume v. RST Investment Group Inc. et als.
Mass Supreme Judicial Court and Mass
Court of Appeals). Applicant’s children will suffer irreparable harm which no
law can cure including loss of their several adopted school programs, etc.
16.a (iii)
that the balance of equities tips in
seeker’s favour or the grant of injunction will substantially injure the other parties
interested in the proceedings. Reason of the foregoing, the answer is No
because the landlord has been paid in advance and the landlords have arm twisted
applicant and his family because all the large amount applicant and his
grantors have been paying to the landlords and utility companies have been
enjoyed by the landlords because in their hot water, gas, heat, cold water, etc
which applicant pay have been used by the landlords and the landlords barricade
the door to the utility room or basement to block applicants.
16.a
(iv) that granting of this type of injunction is in public
interest. Over one million six hundred thousand children are homeless and the
Government of the United States is trying hard to reduce this figure and the
government has advised department and its sub-agency and vendor to work hard to
reduce the homelessness of families and children. Contrary to granting this injunction and
failure of stay will injure public feelings and interests.
16. b. Future Success of this case is bright
and the applicant and his family will prevail if they go by appeal to Mass
Court of Appeals or Motion to Reconsider the Judgment of The Honourable Justice
Marylou Muirhead.
20. There is clear possibility that because of
several violations in this case the Mass Court of Appeal will return this case
.for re-trial and disposition.
E. RELIEF SOUGHT
WHEREFORE, Applicant, Dr. Phillip ofume
respectfully request that the Court:
a. Approve, in accordance with the Court’s
general equity power and Mass. R. Civ. P. 65, a temporary restraining
order requesting for swift temporary
emergency Order restraining the Respondents
and their officers, agents,
servants, privies, assigns and attorneys pending reviews/appeals from eviction , stoppage of rent payment to the landlord, utility
termination or breach of quiet enjoyment of the disputed home immediately subject to other action by the
Respondents which may lead to any
eviction process, sale, transfer of ownership, and forcible possession of Applicant’s apartment and taking possession
of the property mentioned above and everything thereon because of the foregoing
reasons which has great showing to prevail after review.
b. If necessary issue an order of notice
scheduling a hearing within ten days, in accordance with the foregoing prayer
of this Motion.
c. Approve, in accordance with the Court’s
general equity power and Mass. R. Civ. P. 65, and after a notice and a hearing
within ten days of the issuance of the temporary restraining order, a
preliminary injunction, requiring the Clerk/Magistrate of this Court to
assemble the Record of the Proceeding in this Court to be forwarded to the Mass
Court of Appeal
d. Approve, in accordance with the Court’s
general equity power and Mass. R. Civ. P. 65, and after a notice and a hearing,
a permanent injunction, requiring the Applicant to apply for tapes/transcripts
in support of their appeal and part of the record of proceeding heard before this
Court
e. THEREFORE, Applicant further ask the Court to: Issue a
Temporary Restraining Order, Preliminary Injunction, and Permanent Injunction
restraining and enjoining the Defendants from, denying applicant and his family
possession of the premises; depriving applicant of utility service and interfering with his right to quiet enjoyment of the premises and a safe
and sanitary apartment.
f. Grant the Applicant, Dr. Phillip Ofume
and any other further relief that the Court deems just and appropriate
including sanctioning negative reference; give applicant and his family time to
find alternative apartment; refund of all their rent over-payment; etc.
G. VERIFICATION
I, Dr. Phillip
Ofume, respectfully verified, signed and submitted the foregoing documents
under the pains and penalties of perjury this 26th day of June 2013,
__________________
Phillip C. Ofume, Ph.D.
41
Gallivan Boulevard 1st Floor
Dorchester, MA 02124
P. O. Box 2416
Lynn, MA 01903
Tel. 617-606-1753 &
857-258-3987
CERTIFICATE OF SERVICE
I, Dr. Phillip Ofume certify that a true copy of
the document (Notice of Appeal) was served up on all parties by U.S. PVI Postal Service first class mail or
hand delivery on June 26, 2013 at:
Rev. & Mrs.
Cynthia & Allan Hector c/o Attorney O’Toole
41/43 Gallivan
Boulevard #2 (2nd floor)
Dorchester, MA 02124
Executive Director
National Grid (Legal Dept.)
220 Victory Road
Dorchester, MA 02122
(617) 822-5400
|
Acting Executive Director – Mr. Henry F.
Vitale
Boston Water Commission-BWSC (Legal Dept.)
980 Harrison Ave.
Boston, MA 02119
Executive Director
NSTAR (Legal Dept)
One NSTAR Way
Westwood, MA 020
__________________
Dr.
Phillip Ofume
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