affidavit
Sun 5.9.20,
If you go to court with a complaint that needs correction don’t think for one minute that your opponent will wait for the court to resolve your situation before he acts. You have to accept that nasties will be done to you. There’s nothing to be done about it. You’re a fool if you get into it. What’s more this is a blessing in some ways because you need to shut down outside interference for the serious questions you need to ask yourself to come forth. Why am I doing this? One of the things that occurs toward the middle of a court case is that you become aware that this is much bigger than your complaint. You are a citizen addressing your country about a matter of importance in need of remedy. You are speaking for yourself and for all of America’s citizens.
One doesn’t often have the chance to do it. As a writer, I obviously believe I have something to say that is of importance. We all have the capability to take the floor and speak our mind in an appropriate and wise manner. It is not something well-received, encouraged. Just do as you are told. You’ve become litigious, a trouble-maker, a crank. But to your opponent you are a source of sleepless nights, an arrogant bitch. It doesn’t matter because you become razor fixed on your case, which has to be about more than your little complaint. You have to shape your argument so that all may benefit from your demands, aware that some will be hurt in the process.
I filed a motion for sanctions with the court and opponent has responded. I am not impressed with the reply and so I will not respond to it. Conscious of all the reading a judge has to get through, I try to keep my guns muted until there’s a battle worth fighting. Below is an affidavit that I am filing. The court has been closed for over a month now, so a backup of cases. My feeling is that they will try to rush things through, and one may not be allotted the time needed to present her case properly. The affidavit below pretty much covers everything I was not allowed to file before the Preliminary Injunction, and it’s focused on making sure there’s enough evidence to warrant an appeal if that be needed. From what I’ve gathered civil cases such as this one will not be heard till June. I post these motions, pleadings and so forth because I find for myself that I want to read the whole case when doing research and you probably do too, but mostly only the court’s rulings are published on the internet.
AFFIDAVIT
Petitioner, Lorraine Saint Pierre being duly sworn, deposes and states:
Saint Pierre received permission to place a gazebo in the yard adjacent to her apartment. The permission is based on a clause in tenant’s HUD lease allowing for it. (prelim injunction document ex. K, page 4, section 12). Two weeks after permission was granted, it was rescinded and Saint Pierre’s property within the gazebo was seized.
In the court’s ruling on the Preliminary Injunction denial it states, “It is not clear to the court whether any additional issues remain to be tried in this case.”
► Per the case of Texas v. Camenisch the Supreme Court ruled, a party “is
not required to prove his case in full at a Preliminary Injunction hearing.”
1. The preliminary injunction hearing was heard before the court ruled on petitioner’s request to file an amended petition. Petitioner lost the injunctive hearing because it did not add the four factors required for granting the injunction, which were part of Petitioner’s amended petition.
2. Petitioner was not permitted to file a Memorandum of Law.
3. The court did not compel Respondent to respond to a request for production of documents as requested by Petitioner. The documents would have shown that Respondent does not have the authority to act unitarily as it did and does.
4. Respondent did not give Petitioner copies of documents it presented at preliminary injunction hearing and has not in spite of Petitioner’s repeated requests since then. The court at preliminary injunction was unequivocal in ascertaining whether Petitioner had duplicates of the evidence she sought to introduce at hearing. Such evidence would not otherwise be admitted. Since the evidence presented at hearing has been deliberately kept from Petitioner, it therefore may not be admitted as evidence by the court. See attached ex. 1.
5. Respondent did not add the requested affidavit in its response to request for documents and the only document provided had been seriously tampered with. Respondent also refused to furnish a list of witnesses because it reasoned, “Information responsive to this request will be produced pursuing to the scheduling order dated November 8, 2019.” The parties were given a deadline of May 8, 2020 to finish the matter. Opposing counselor was free at any time to furnish that information but chose to have witnesses appear at Preliminary Injunction without notice to opposing party.
6. Discovery admissions were similarly flummoxed by Respondent answering with the one word, deny, to all admission statements, Respondent attorney stating that she herself had responded to Admit request on behalf of her clients. Petitioner then served the same admission request, but seeking Respondent Vice President’s response. Lawyer responded by email “[maintenance company] objects to this most recent request in its entirety, as Mr. Green is not a party to this action.” (Ex. 2) Vice President, very much sees himself as a party to this action, especially considering he chose to respond, as its company representative, to the initial Order to Show Cause filed with court. Maintenance company rejected vice president’s status as company spokesperson in this matter to prevent him from responding to discovery.
7. Respondent lied when denying section 2 of the Request for Admission. Vice president did grant another written permission two weeks after Petitioner received hers. Tenant in unit 6 received from vice president, unbidden, open-ended written permission “To be allowed to keep the patio located outside of your unit.” The yard may not still be claimed as a common area when permissions are handed out for private uses. See attached exhibit 3.
8. Respondent lied in section 4 of same document. Petitioner clearly wrote in plain language that she was erecting a gazebo, adding that said gazebo had been up at another of the maintenance company sites for the previous two years in an email she sent to RS Coordinator and it did give permission for it, (per prelim injunction document ex. B.)
► “Where the words of a contract in writing are clear and unambiguous, its
meaning is to be ascertained in accordance with its plainly expressed
intent.’ ” M&G Polymers USA, LLC v. Tackett, 574 U.S. 427, 435 (2015)
(quoting 11 R. Lord, Williston on Contracts §30:6, p. 108 (4th ed. 2012)
(Williston)).
► In CITGO Asphalt Refining Co. v. Frescati Shipping Co., Ltd., No. 18-565,
Justice Sotomayor pointed out that, “[a]lthough contract law generally [does]
not, by its own force, limit liability based on tort concepts of fault,” an obligor
who wished to avoid strict liability for breach of contract was nevertheless free
to limit its obligation consistent with the Restatement of the Law Second,
Contracts. The permission clause at issue in this case clearly indicates that
the parties to the lease agreement did not contract for any such limitations on
the permission clause. The clause is straightforward and serves the purpose
for which it was intended: tenant must inform property owner of its intentions.
It was a gazebo, wrote Petitioner to property owner’s delegate, and it had been
up for the past two years at another of its maintenance company sites.
► From The American Heritage® Dictionary of the English Language, 5th Edition. Gazebo,
“[N]oun A freestanding, roofed, usually open-sided structure providing a shady
resting place.”
9. Respondent lies in section 6 of the admission request when a) denying that it sent repeated memos, b) that it did not seek to implement them. The photos and documents presented at preliminary hearing disprove Respondent’s denial that it threatened and did not follow through on its memos for 5 ½ months, c) it threatened to permanently “remove personal belongings” (spring memo, 2nd graph,) d) and that they “will be disposed of by maintenance;” (winter memo , 3rd graph,) and e) it acted on a partiality basis, per photos submitted, (prelim injunction document ex. E, F, J and also H, L.)
10. Respondent lied in section 8 of said document; RS Coordinator did state at hearing when asked to name the tenants who reported on the gazebo to her “That’s confidential, I can’t go into that.” They do keep secret files pitting tenants against each other by encouraging them to report on their neighbors, and it will be kept secret.
11. Maintenance company Respondent, Resident Services Coordinator lied when she called the gazebo a trellis after she had been told, in writing, that it was a gazebo (per prelim injunction document ex. B.) Physical evidence at hearing disproved her assertion that what she saw was a trellis. Respondent photo reveals the gazebo’s flooring and there is evidence in the form of an assembly instruction manual that makes clear the cross bars at top one sees in the photo holding the interlocking gazebo posts into a whole and not a trellis. She lied under oath at hearing when stating that she found out about the gazebo after receiving complaints from residents about a structure Petitioner was installing. There is physical evidence with the court (ex.B for prelim injunction hearing) that Petitioner herself notified RS coordinator before others did.
12. Maintenance company Respondent, Vice President also told the same lie in his response to Petitioner’s original Order to Show Cause by stating, “After receiving inquiries from residents about a structure that the Complainant was building in the yard behind her apartment unit, . . .”
PER HUD OCCUPANCY HANDBOOK:
► HUD Occupancy Handbook: page 6-7, Required attachments, line D, states:
House Rules, if such rules have been developed by the owner.
► HUD Occupancy Handbook: page 6-17, 6-9 HOUSE RULES, Overview, section 2.
The decision about whether to develop house rules for a property rests solely with the owner.
Owner has not done so. Maintenance company, holding no contractual agreement with tenants, cannot create and insert rules as attachment to lease.
► Section 3 of the overview emphasizes that:
House rules are listed in the lease as an attachment to the lease. It is important, however, to recognize that House Rules do not replace the lease.
► HUD Occupancy Handbook: page 6-9, Section 6. Prohibited provisions, part b.
Distraint for rent and other charges. An agreement by the tenant that the owner is authorized to take property of the tenant and hold it until tenant performs an obligation the owner has determined the tenant has failed to perform.
Respondent may not seize and hold petitioner’s property or gazebo.
PER MAINE STATUTES:
►Article 2 § 2-210.2, Delegation of Performance
Respondent, a maintenance company, has reached beyond any power it in fact
has to make rules, subjugate and threaten tenants. Respondent is not at
liberty to make rules; that is property owner’s prerogative. It may offer
guidelines, seek tenant permission, but it cannot impose rules, nor can it create
new ones indiscriminately under the caveat, “We have been asked to convey (by
the owners what is allowed” per May 30, 2019 memo. If it is not in the lease,
and property owner has not created House Rules to cover the situation referred
it is immaterial.
►Article 2-A §2-1206.1 Offer, acceptance in formation of lease contract
A standard Multi-Family HUD lease was agreed upon and executed by Petitioner
and landlord on February 9, 2019.
►Article 1-A § 1-1304, Obligation of Good Faith
Petitioner had no reason to doubt landlord who receives funds from federal,
state and local agencies that it would respect and follow through on its
commitments. Respondent breached property owner’s lease.
►Article 2-A §2-1108. Unconscionability
Rules that expect tenants to landscape landlord’s property in exchange for
using outdoor grounds are unconscionable, so are rules that are enforced, or
are not, on a partiality basis, also rules that subvert a tenant’s lease.
►Article 2-A §2-1211.1 Warranties against interference and against infringement that will interfere in lessee’s enjoyment.
Landlord’s agent took down Petitioner’s gazebo, removed chairs, benches,
tools, furniture, storage bins, soil, flooring, bricks, stones, concrete
blocks, outdoor temperature thermometer, etcetera from Petitioner’s yard
preventing Petitioner from enjoying the yard adjacent to her apartment, what is
by law recognized as curtilage of the home and protected by the 4th amendment, also
Article I, section 5 of Declaration of Rights in Maine constitution for the privacy
to relax, to garden and socialize with neighbors.
Permission was given to two individuals to use “the front of their unit.” Under such
circumstances one cannot call the yard a common area.
►Article 2-A §2-1401.1 Insecurity; adequate assurance of performance
As can be seen by the many photos and the memos proffered in this case, rules are
malleable and lease clauses are ignored at will by Respondent.
►Article 2-A §2-1521. 2 Lessee's right to specific performance or replevin.
Petitioner seeks reimbursement for its work in preparing the grounds, installing
the gazebo, for the stonework located and carted to its yard; which said work
will have to be repeated to reinstall gazebo and garden, to have her seized
property returned. Petitioner expects Respondent to replace and make good
the damaged and missing property it has taken.
►Title 17-A: MAINE CRIMINAL CODE, Part 2: Substantive Offenses Chapter 23: Offenses Against The Family §555.1 A Endangering welfare of dependent person.
Respondent is disrespectful of tenants, it mistreats a vulnerable
population, abusing its authority with actions that are arbitrary and
capricious, wherein tenants are made to live in fear of Respondent’s
threats. It is not appropriate to threaten tenants with the disposal of
their personal property, to give someone permission to install something
and two weeks later force them to undo it on the next day, or they will
take it away. It is not appropriate to keep secret files on tenants pitting
them against each other.
►TITLE 14: COURT PROCEDURE, CIVIL Part 7, Chapter 710 §6021.3A. Implied Warranty and Covenant of Habitability
Respondent was told by Maine Medical Center Emergency Room
physician to remove the mold from building because Petitioner was made
sick by it. It has not done so. When Petitioner asked to at least remove
visible mold from building side, it demurred. It was left to Petitioner to
remove it. Respondent may not claim Spring and Winter Clean-up as
reason for the seizure of tenants’ property when it won’t even eradicate
mold from property or shovel snow from exits. Exhibit 4.
CURTILAGE
► PER: U.S. v. Dunn, 1987, DUNN’S FOUR FACTORS
1, Petitioner’s home abuts the area where gazebo was installed
2. Building is surrounded by trees, shrubs, fencing; all doors are locked.
3. As per State v. Shaw, 31 Me. 523 Petitioner used the curtilage of her apartment by placing a gazebo on it, furnishing it with chairs,
a bench, coffee table, a typical garden.
4. Private and enclosed curtilage areas are occluded by tenants with bricks, stones, fencing.
► PER: Katz v. the United States, KATZ: “PROTECTS PEOPLE NOT PLACES”
“[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”
► PER: Jardines v. Florida, SCALIA’S RULING:
Judge Scalia noted that, If a member of the public did that (brought a drug sniffing dog to one’s front porch,) it would “inspire most of us – well, to call the police[,]”
as would Petitioner should she find someone in her yard.
► PER: Joyner v. State, Fla.Dist. Court, App1974
“We now hold that yards, courtyards, driveways and parking areas used and customarily used in common by occupants of apartment houses,
condominiums and other such complexes with other occupants thereof constitute a part of the curtilage of a specifically described apartment . . .”
► PER: People v. Bonilla, Ill 2018
“It would just be unfair to say you can’t come up on a person who lives in a single family residence and sniff their door but you can go into someone’s hallway and sniff their door.”
► PER: Bunn v. State, 265 S.E.2d 88 (Ga. Ct. App. 1980)
" Does an apartment renter or owner in Georgia have a reasonable expectation of privacy in the curtilage surrounding his apartment? We find that he does.”
► PER: State v. Betts, 397 S.W.3d 198, 207 Tex. Crim. App. 2013
Betts was given 4th amendment rights to his aunt’s yard because he kept dogs there. It was not his home or yard.
► PER: Espinoza v. State, 454 S.E.2d 765, 767 (Ga. 1995)
Like residents in single-family homes, apartment residents have a reasonable expectation of privacy in the curtilage surrounding their apartment.
► PER: Commonwealth V. Leslie, 76 N.E.3d 978 (Mass. 2017)
We decline to limit Jardines ' holding to single-family homes or to fashion a rule categorically excluding areas associated with multifamily homes as curtilage and thus placing them beyond the reach of the protections of the Fourth Amendment and art. 14.”
► PER: Cases cited:
Petitioner is entitled to 4th Amendment, and Article I, Declaration of Rights, section 5 of Maine Constitution, protection in the curtilage of her home
and Respondent has no authority to interfere in the quiet enjoyment of its yard.
CONCLUSION:
a) Petitioner signed a HUD Multi-Family lease with landlord.
b) Petitioner was given written permission to place a gazebo in the yard abutting her leased apartment per section 12, page 4 of lease.
c) The permission was open-ended as is lease clause it is based on.
d) Respondent is subverting HUD lease.
e) Respondent is violating Petitioner’s right to privacy in the yard of her home.
f) Respondent has unlawfully seized Petitioner’s property.
g) Petitioner seeks reimbursement for its work in preparing the grounds, installing the gazebo, for the stonework located and carted to its yard which work will have to be repeated, to have her seized property returned to her. Petitioner seeks to have Respondent replace and make good the damaged and missing property it seized.
h) Petitioner seeks an end to PMI’s subversion of lease’s stated objectives for its own purposes.
i) Having introduced stated evidence, Petitioner again seeks to file an amended petition and a memorandum of law for a permanent injunction and a cessation of stated intolerable conduct.
Dated:
Respectfully submitted,
VERIFICATION
State of Maine, County of Cumberland, ss.:
Lorraine Saint Pierre being duly sworn, deposes and says:
That I am the Petitioner named above, that I have read the affidavit and know the truth of the contents thereof, except in those matters alleged to be on information and belief, and as to those matters Petitioner believes them to be true.
Sworn to before me this _____ day of ___________, 2020
_______________________________
Petitioner, Docket # CD 19-386
The favorite essay this month has again been, Karpman drama triangle
