IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN P. MATHEWS

v.

WASHINGTON MUTUAL BANK, FA

:

:

:

:

:

CIVIL ACTION

05-100

JOYNER, J. August 14, 2006

MEMORANDUM AND ORDER

Via the motion now pending before this Court, Defendant,

Washington Mutual Bank, FA (“Defendant” or “Washington Mutual”),

seeks summary judgment on all of Plaintiff’s claims. For the

reasons outlined below, this motion shall be granted in part and

denied in part.

I. Background

Plaintiff, John P. Matthews (“Plaintiff”), initiated this

suit, pro se, to recover for alleged violations of his civil

rights and various federal and state laws. On October 1, 1997,

Defendant was assigned a mortgage loan in the amount of

$277,000.00 in Plaintiff’s name secured by the property located

at 708 Woodland Avenue, East Norristown, PA 19401 (the

“Property”). (Def.’s Mot. for Summary Judgment (“Def.’s Mot.”)

Ex. A, Aff. of Phelan, Hallinan & Schmeig, LLP (“Phelan Aff.”) ¶

1.) Plaintiff failed to make his loan payments for August,

September, October, and November of 1998. (Def.’s Mot. Ex. B,

Pl.’s Resp. to Admis. Req. (“Pl.’s Admis.”) ¶ 14.) In response,

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 1 of 34
The Foreclosure Action is captioned Washington Mutual v. 1

John P. Matthews, Montgomery County Court of Common Pleas No. 98-

21261.

The Bankruptcy Dockets for the Bankruptcy Court for the 2

Eastern District of Pennsylvania show the activity in Plaintiff’s

five bankruptcy cases: (a) In re John P. Matthews, No. 99-10688

(“First Bankruptcy”), filed January 19, 1999; (b) In re John P.

Matthews, No. 00-18872 (“Second Bankruptcy”), filed July 14,

2000; (c) In re John P. Matthews, No. 03-38172 (“Third

Bankruptcy”), filed December 12, 2003; (d) In re John P.

Matthews, No. 04-14042 (“Fourth Bankruptcy”), filed March 23,

2004; (e) In re John P. Matthews, No. 04-16546 (“Fifth

Bankruptcy”), filed May 7, 2004

Plaintiff argues that the Third and Fourth Bankruptcies

should not be treated as two separate filings, because “the law

forbids 3 chapter seven bankruptcies filing in one year.” [sic]

(Pl.’s Resp. to Def.’s Mot. (“Pl’s Resp.”) at 4.) Plaintiff

asserts that the petition from the Third Bankruptcy was “refiled

due to court error.” (Id.) Plaintiff offers no explanation of

what “court error” occurred that might have led to duplicate

filings. The petitions in the Third and Fourth Bankruptcies were

signed by Plaintiff and his counsel on December 10, 2003 and

March 23, 2004 respectively, thus belying Plaintiff’s assertion

that clerical error led to the court filing the same petition

twice. 

While bankruptcy law provides for the dismissal of a

bankruptcy petition of a debtor who had another bankruptcy case

pending at any time in the preceding 180 days, such dismissal

generally occurs upon a motion, and requires an evidentiary

determination by the bankruptcy court that the earlier case was

dismissed for wilful failure to comply with court orders. See 11

U.S.C. § 109(g)(1); 2-109 Alan N. Resnick & Henry J. Sommer,

Collier on Bankruptcy 109.08 (15th ed. 2005) There is no

indication that any of Plaintiff’s bankruptcies were dismissed

pursuant to § 109(g)(1), and no authority supporting the idea

that where a bankruptcy petition could have been dismissed under

§ 109(g) it should not be treated as a bankruptcy filing even

where it was not actually dismissed. Thus, we will not pretend

that Plaintiff did not file the Third, Fourth, or Fifth

Bankruptcies merely because there is some possibility that a

motion to dismiss under § 109(g) might have been appropriately

made by Defendant.

Washington Mutual filed a mortgage foreclosure action (the

“Foreclosure Action”) on November 25, 1998. (Id.) Plaintiff 1

has, since that date, filed five separate bankruptcy petitions.2

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 2 of 34
The Stipulation also provided that Defendant would be 3

relieved from the automatic stay, but would not oppose any

Chapter 13 filing submitted prior to December 1, 2004. (See

Stipulation.)

In an Order dated September 9, 2004, the Bankruptcy court 4

discharged Plaintiff’s Fifth Bankruptcy as per the Stipulation. 

(See Bankruptcy Dockets.) On December 9, 2004, Defendant filed a

motion to reopen Plaintiff’s Fifth Bankruptcy and enter a default

on the Stipulation because Plaintiff failed to make the

stipulated payments. (See id.) The Bankruptcy Court held a

hearing on that motion on December 21, 2004. (Id.) In an Order

dated December 23, 2004, the Bankruptcy court certified

(Id. ¶¶ 15, 31, 46, 50; see also Def.’s Mot. Ex. C, Docket

Entries of the U.S. Bankruptcy Court for the Eastern District of

Pennsylvania (“Bankruptcy Dockets”).) Plaintiff was represented

by counsel in all of the relevant bankruptcy proceedings. (See

Bankruptcy Dockets.) Plaintiff’s first four bankruptcies were

dismissed for failure to make court ordered payments and filings. 

(See Bankruptcy Dockets.)

Defendant was granted a default judgment in the Foreclosure

Action, but its attempts to execute judgment were blocked by

Plaintiff’s first four bankruptcy filings. (Pl.’s Admis. ¶¶ 17,

53.) As part of the Fifth Bankruptcy, Plaintiff signed a

Stipulation and Order in Settlement of Motion for Relief from the

Automatic Stay, promising to make two payments of $2,514.97.3

(See Def.’s Mot. Ex. E, Stipulation and Order in Settlement of

Motion for Relief from the Automatic Stay (“Stipulation”).) When

Plaintiff failed to make the payments pursuant to the

Stipulation, Defendant issued a Praecipe for Writ of Execution, 4

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Plaintiff’s default of the Stipulation and required leave of

court for any future bankruptcy filings. (Id.; see also Def.’s

Mot. Ex. F, Order of Dec. 23, 2004.)

The praecipe and writ challenged in Plaintiff’s motions 5

were issued on June 1, 2000 (“June 1, 2000 Writ"). (Def.’s Mot.

Ex. D, Docket Entries for Washington Mutual v. John P. Matthews,

Montgomery County Court of Common Pleas No. 98-21261 (“Common

Pleas Docket”).) The June 1, 2000 Writ was stayed on November

13, 2000 by virtue of payments made through the concurrent

bankruptcy proceedings. (Id.)

which resulted in the issuance of a Writ of Execution on November

5, 2004 in the Foreclosure Action. (Phelan Aff. ¶¶ 9-12.)

Defendant filed an affidavit of service averring that the

notice of a sheriff’s sale scheduled for December 29, 2004 was

personally delivered to Plaintiff at the Property on November 6,

2004 (“First Sale Affidavit”). (Phelan Aff. ¶ 14; see also

Def.’s Mot. Ex. G, Pl.’s Mots. for Relief from Judgment (“Pl.’s

Mots. for Relief”) at Debtor’s Doc. A.) Plaintiff filed a Motion

to Open and Set Aside Judgment and a subsequent Motion to Stay

Sheriff’s Sale Pending Disposition of the Motion to Open and Set

Aside Judgment (“Plaintiff’s Motions for Relief”) seeking relief

from judgment and suspension of the planned sheriff’s sale. (See

Pl.’s Mots. for Relief.) Plaintiff’s Motions for Relief assert

that an earlier praecipe for writ of execution and resulting writ

were invalid, and that the First Sale Affidavit was false. (See 5

Pl.’s Mots. for Relief; Pl.’s Admis. ¶¶ 68, 79.)

On December 23, 2004, Defendant cancelled or postponed the

sheriff’s sale noticed scheduled for December 29, and issued a

new notice for a sheriff’s sale scheduled January 26, 2005

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 4 of 34
(“Second Sale Notice”). (Phelan Aff. ¶¶ 21-24, Pl.’s Admis. ¶¶

72-73.) The Second Sale Notice was served on December 26, 2004

by delivery to Joyce Matthews, Plaintiff’s wife, at the Property. 

(Def.’s Mot. Ex. H, Aff. of Service of Second Notice of Sheriff’s

Sale; Phelan Aff. ¶¶ 21-24.) Plaintiff has not challenged the

validity or service of the Second Sale Notice. (Phelan Aff. ¶

33.)

On February 15, 2005, a hearing was held in the Montgomery

County Court of Common Pleas on Plaintiff’s Motions for Relief. 

(Pl.’s Admis. ¶ 80.) Plaintiff had notice of the hearing,

attending the hearing with his attorney, and had the opportunity

to be heard and present evidence. (Id. ¶ 81.) After the

hearing, the court issued an Order denying Plaintiff’s Motions

for Relief. (Def.’s Mot. Ex. I, Order of the Montgomery County

Court of Common Pleas of Feb. 15, 2005.) The Property was sold

by the sheriff on February 23, 2005. (See Common Pleas Docket.)

II. Legal Standard for Summary Judgment

In deciding a motion for summary judgment under Fed. R. Civ.

P. 56(c), a court must determine “whether there is a genuine

issue of material fact and, if not, whether the moving party is

entitled to judgment as a matter of law.” Medical Protective Co.

v. Watkins, 198 F.3d 100, 103 (3d Cir. 1999) (internal citation

omitted). Rule 56(c) provides that summary judgment is properly

rendered: 

. . . if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 5 of 34
the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law. 

Thus, summary judgment is appropriate only when it is

demonstrated that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a

matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-32

(1986). An issue of material fact is said to be genuine “if the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986).

A party seeking summary judgment bears the initial burden of

identifying portions of the record that demonstrate the absence

of issues of material fact. Celotex, 477 U.S. at 323. The party

opposing a motion for summary judgment cannot rely upon the

allegations of the pleadings, but instead must set forth specific

facts showing the existence of a genuine issue for trial. Id. at

324; Fed. R. Civ. P. 56(e).

Where the plaintiff is a pro se litigant, the Court is

obliged to construe pleadings liberally in the plaintiff’s favor. 

See Haines v. Kerner, 404 U.S. 519, 520-521, 30 L. Ed. 2d 652, 92

S. Ct. 594 (1972). This “judicial grace does not[, however,]

relieve the pro se plaintiff of the burden of coming forth with

some evidence" to avoid summary judgment. Lewis v. Kinko's, Civ.

A. No. 99-3028, 2004 U.S. Dist. LEXIS 6242, *17 (E.D. Pa. Mar.

31, 2004) (quoting Kershaw v. Aspin, Civ. A. No. 94-216, 1994

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 6 of 34
U.S. Dist. LEXIS 17092, *2 (E.D. Pa. Dec. 5, 1994)).

III. Discussion

Plaintiff filed the instant suit on January 10, 2005. The

Complaint alleges that Defendant deprived and/or conspired to

deprive Plaintiff of the protections of the bankruptcy laws,

specifically 11 U.S.C. §362(a) and 1332(c)(2), by wrongfully

seeking excessive payments and relief from the automatic stay. 

Plaintiff also claims that the alleged invalidity of the June 1,

2000 Writ and First Sale Affidavit constitute violations of 18

U.S.C. §§ 4 and 1341 and 18 Pa. C.S.A. § 4904. Plaintiff further

alleges that Defendant illegally deprived him of his civil rights

in violation of 42 U.S.C. §§ 1983 and 1985. The Complaint also

appears to allege violations of 2 U.C.C. § 508, 2 U.S.C.

311(3)(B), “Plaintiff’s right of due process at law pursuant to

United Ancient bill of rights Article V,” Pennsylvania Rule of

Civil Procedure 2958.1, Amendments V and XIV of the United States

Constitution, and Article III, § 32 of the Constitution of the

Commonwealth of Pennsylvania.

A. Criminal Allegations

Many of Plaintiff’s claims seek relief for alleged

violations of federal and state criminal statutes. While the

fact that a criminal penalty is created does not preclude a

private right to bring a civil action, a “bare criminal statute”

is generally insufficient to support such a right. See Cort v.

Ash, 422 U.S. 66, 79 (1975). Where a statute does not expressly

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 7 of 34
provide for a civil right of action, four considerations are

relevant to a court’s determination of such a right is implied:

(1) whether the plaintiff is “one of the class for whose especial

benefit the statute was enacted,” (2) whether there is an

indication of legislative intent to create or deny a private

remedy, (3) whether the availability of a private remedy is

consistent with the underlying purpose of the statute, and (4)

whether the cause of action is one traditionally left to state

law. Id. at 78. The first two questions are key to the

determination — the second two considerations cannot, alone,

support a private right of action. Three Rivers Ctr. for Indep.

Living, Inc. v. Hous. Auth., 382 F.3d 412, 421 (3d Cir. 2004)

(citing AT&T v. M/V Cape Fear, 967 F.2d 864, 866 (3d Cir. 1992)). 

Thus, “for an implied right of action to exist, a statute must

manifest Congress’ intent to create (1) a personal right, and (2)

a private remedy.” Id. (citing Alexander v. Sandoval, 532 U.S.

275, 286 (2001)).

The determination of whether § 1983 provides a private right

of action to enforce a statute overlaps with the Cort analysis. 

See Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002). Because §

1983 itself furnishes a private remedy, the first prong of the

analysis described in Cort and Sandoval – whether the statute in

question was intended to create a personal right to the

plaintiff’s benefit – becomes the threshold issue. Three Rivers,

382 F.3d at 421-22, 422 n.11 (citing Gonzaga, 536 U.S. at 284). 

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 8 of 34
Plaintiff purports to add additional “violations” in his 6

response to Defendant’s motion. These claimed violations were

not part of the Complaint, and such claims are, therefore, not

To establish that § 1983 may be employed to recover for

violations of a statute, a plaintiff must show that the statute

creates an enforceable right, privilege, or immunity within the

meaning of § 1983. Id. (citations omitted). Once a plaintiff

demonstrates that the statute creates a federal right to his

benefit, a rebuttable presumption arises that such right is

enforceable through § 1983. Id. This presumption can be

rebutted by a showing that Congress “specifically foreclosed” the

use of § 1983 as a remedy either through express prohibition in

the statutory text or by creation of a comprehensive enforcement

scheme that is incompatible with individual enforcement under §

1983. Id. (citing Powell v. Ridge, 189 F.3d 387, 401 (3d Cir.

1999)); see also Middlesex County Sewerage Auth. v. Nat’l Sea

Clammers Ass’n, 453 U.S. 1 (1981).

Defendant argues that Plaintiff has presented nothing to

show that any private right of action is available under the

referenced statutes or via § 1983. If no private right of action

is available through the statutes or § 1983, Plaintiff has no

standing to seek recovery for any violations of the cited

statutes. Plaintiff does not respond directly to these

arguments, but instead repeats the facts asserted in the

Complaint and adds new allegations that Defendant violated 12

U.S.C. § 1831n(2)(A) and 15 U.S.C. § 1611. We examine whether 6

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properly before us. Even if such allegations had been made in

the Complaint, these statutes would not provide Plaintiff any

right or remedy.

Plaintiff alleges that Defendant’s accounting practices

violated 12 U.S.C. § 1831n(2)(A), which requires that certain

filings with federal agencies by banking institutions be made in

accordance with the Generally Accepted Accounting Procedures

(“GAAP”) set forth elsewhere in that section. We find no

indication in the text, context, or history of § 1831 that it was

intended to create a private right of action. It is also unclear

whether this provision would even apply, given that the

challenged submissions here were made to federal and state

courts, not federal agencies overseeing the banking industry.

Plaintiff also alleges that Defendant did not correct

accounting errors in state court, in violation of 15 U.S.C. §

1611. While a private cause of action is available for

violations of certain portions of the consumer credit cost

disclosure provisions under Chapter 41, these provisions address

only the disclosures required to be made to debtors and potential

debtors. See 15 U.S.C. § 1640 (creating a cause of action for

violations of 15 U.S.C. § 1631 et seq.); 15 U.S.C. § 1601

(stating that the purpose of Title 15 is to ensure that consumers

can compare available credit terms and protect consumers against

unfair credit practices); 15 U.S.C. § 1631 (providing that

covered creditors must disclose certain information “to the

person who is obligated” under a credit agreement). These

provisions are silent as to the obligations of a creditor to

correct submissions to a court. Thus, § 1611 does not appear to

create any private right of action.

any of the criminal statutes on which Plaintiff’s action relies

creates a private right of action.

1. 18 U.S.C. § 4

Plaintiff alleges that Defendant violated 18 U.S.C., § 4. 

(Pl.’s Compl. at 3.) This section provides a criminal penalty

for misprison of a felony. Specifically, § 4 provides

Whoever, having knowledge of the actual commission of a

felony cognizable by a court of the United States,

conceals and does not as soon as possible make known

the same to some judge or other person in civil or

military authority under the United States, shall be

fined under this title or imprisoned not more than

three years, or both.

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 10 of 34
18 U.S.C. § 4. No right of civil action is created by the plain

language of this provision. See, e.g., Mohwish v. Gentry, Nos.

97-5331, 97-5417, 1998 U.S. App. LEXIS 17922, *5 (6th Cir. July

31, 1998). We can find no court that has concluded that this

statute creates any personal right or private remedy. See id.;

King v. Keller, Civ. A. No. 06-4001, 2006 U.S. Dist. LEXIS 35791,

17-19 (D. Kan. May 30, 2006)) (finding that because § 4 is a

"bare criminal statute," no private right of action arises);

Tucker v. Bank One N.A., 265 F. Supp. 2d 923, 925 (N.D. Ill.

2003) (same); United States ex rel. Farmer v. Kaufman, 750 F.

Supp. 106, 108 (S.D.N.Y. 1990) (finding that courts have declined

to imply a private right of action in § 4) (citing Dugar v.

Coughlin, 613 F. Supp. 849, 852 n.1 (S.D.N.Y. 1985)).

Courts have consistently found that nothing in or

surrounding § 4 creates any right to the benefit of an individual

plaintiff in a civil suit. See, e.g., Dugar at 852 n.1

(concluding that § 4 did not "secure rights to plaintiff," who

could therefore "neither sue directly under [it], nor can he use

[it] as a predicate for a section 1983 action") (citations

omitted). We agree with these courts that nothing in the text,

history, or application of § 4 suggests that it creates any right

to the benefit of an individual civil plaintiff. Rather, it is a

"bare criminal statute" not intended to protect any specific

group or create any personal rights. In the absence of such a

personal right, § 4 creates neither its own implicit right of

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 11 of 34
action nor any right of action through § 1983. See Three Rivers,

382 F.3d at 421-22 (citations omitted). Thus, Plaintiff, as a

matter of law, cannot proceed with a civil action to recover for

a violation § 4.

2. 18 U.S.C. § 1341

Plaintiff alleges that Defendant violated 18 U.S.C. § 1341

by entering into a “secondary contractual agreement” for

repayment of the original debt that required payments that

Plaintiff was unable to make. (Pl.’s Compl. at 2.) This

provision sets forth the criminal prohibition on defrauding or

swindling another by use of the United States Mail. See 18

U.S.C. § 1341. A majority of courts have concluded that § 1341

does not, by itself, provide a private right of action. Kathrein

v. McGrath, 166 Fed. Appx. 858, 863 (7th Cir. 2006) (joining

Fifth, Sixth, and Eight Circuits in finding no private cause of

action for mail fraud) (citations omitted); Jefferson v. United

States, 73 Fed. Appx. 262, 263 (9th Cir. 2003) (finding that §

1341 provides no private right of action); Barrett v. City of

Allentown, 152 F.R.D. 46, 50 (E.D. Pa. 1993) (same) (citing Ryan

v. Ohio Edison Co., 611 F.2d 1170 (6th Cir. 1979); Krupnick v.

Union Nat'l Bank, 470 F. Supp. 1037, 1038 (W.D. Pa. 1979)). 

Those few courts that have found a private right of action

arising from § 1341 have relied upon the Racketeer Influenced and

Corrupt Organizations Act, 18 U.S.C. § 1861 et seq. (“RICO”), not

§ 1341 itself, to provide the basis for a private civil action. 

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 12 of 34
To advance a civil claim under RICO, a plaintiff must 7

allege “(1) conduct (2) of an enterprise (3) through a pattern

(4) of racketeering activity.” Lum v. Bank of Am., 361 F.3d 217,

223 (3d Cir. 2004) (citing Sedima, S.P.R.L. v. Imrex Co., Inc.,

473 U.S. 479 (1985)). A “pattern of racketeering activity”

requires at least two “predicate acts,” such as mail or wire

fraud. Id.; 18 U.S.C. § 1961(1),(5). Where a RICO plaintiff

relies on mail or wire fraud as a predicate act, the allegations

of fraud must be pled with specificity as per Federal Rule of

Civil Procedure 9(b). Id. Plaintiff’s § 1341 allegations relate

See, e.g., Ayres v. GMC, 234 F.3d 514, 519 (11th Cir. 2000)

(noting that § 1341 may be enforced through a private RICO

action).

We agree that § 1341, taken alone, is no less of a “bare

criminal statute” than § 4. While RICO provides a private right

to enforce § 1341, there is no indication that there is any

similar right of enforcement where no RICO claim is or can be

made. The availability of enforcement through RICO also suggests

that allowing a plaintiff to use § 1983 to seek recovery for

violations of § 1341 would be inappropriate, as RICO appears to

create a comprehensive remedial scheme for those violations that

Congress has determined give rise to private civil recovery. See 

Three Rivers, 382 F.3d at 421-22; see also United States v.

Philip Morris USA, Inc., 396 F.3d 1190, (D.C. Cir. 2005) (finding

that RICO creates a comprehensive remedial scheme that limits the

ability of courts to fashion additional remedies). Thus, RICO

appears to provide the exclusive civil remedy for violations of 

§ 1341. Plaintiff does not purport to bring this suit under

RICO. Thus, Plaintiff cannot properly seek recovery directly 7

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to only one act, and provide no specificity as to whether the

United States Mails were ever involved, much less as to any

fraudulent scheme. Instead, Plaintiff alleges that the terms of

the agreement were in violation of the bankruptcy laws – an

allegation that is addressed below. Thus, even reading

Plaintiff’s Complaint liberally, he sets forth no RICO claim.

through § 1341 or through § 1983.

3. 18 Pa. C.S. § 4904

Plaintiff alleges that Defendants, by filing the First Sale

Affidavit, violated 18 Pa. C.S. § 4904 because the affidavit was

false. (Pl.’s Compl. at 4.) This section provides a state

criminal penalty for unsworn falsification to authorities as

follows:

(a) IN GENERAL. –- A person commits a misdemeanor of

the second degree if, with intent to mislead a public

servant in performing his official function, he:

(1) makes any written false statement which he does not

believe to be true;

(2) submits or invites reliance on any writing which he

knows to be forged, altered or otherwise lacking in

authenticity; or

(3) submits or invites reliance on any sample,

specimen, map, boundary mark, or other object which he

knows to be false.

(b) STATEMENTS "UNDER PENALTY." –- A person commits a

misdemeanor of the third degree if he makes a written

false statement which he does not believe to be true,

on or pursuant to a form bearing notice, authorized by

law, to the effect that false statements made therein

are punishable.

(c) PERJURY PROVISIONS APPLICABLE. –- Section 4902(c)

through (f) of this title (relating to perjury) applies

to this section.

18 Pa. C.S. § 4904. We have found no cases in which any court

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 14 of 34
Because § 1983 provides recovery only for violations of 8

federal — not state — rights, § 1983 cannot be used to recovery

for a violation of § 4904. See 42 U.S.C. § 1983.

has considered whether this statute conveyed a private right of

action. Nothing in the text of the statute suggests that it

creates any right to the benefit of an individual. Rather, the

text and headings appear to explicitly create this penalty to the

benefit of the authorities carrying out public administration. 

The Article under which this section appears is entitled

“Offenses Against Public Administration,” and the title of the

section supports that this particular act is criminal because the

unsworn falsifications are being made to authorities. Absent

some suggestion that a private right accrues, this otherwise

“bare criminal statute” cannot give rise to a private civil

action. Thus, Plaintiff cannot pursue recovery for alleged 8

violations of § 4904.

B. Bankruptcy Statutes

Plaintiff alleges that Defendant violated the provisions of

the Bankruptcy Code. As with the criminal statutes above,

Defendant argues that no private right of action is created by

the statutes themselves or through § 1983.

1. 11 U.S.C. §362

Plaintiff alleges that Defendant violated the automatic stay

by proceeding with the Foreclosure Action even after Plaintiff

filed the First Bankruptcy. (Pl.’s Compl. at 3-4.) Defendant

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The automatic stay is also enforceable through the contempt 9

power of the bankruptcy court. That power does not, however,

extend to a district court considering a separate civil action

brought under § 362(h).

The 2005 Amendments to the Bankruptcy Code redesignated 10

subsection (h) as subsection (k), and made additions to the text.

Those amendments were enacted on April 20, 2005, to be effective

180 days after that date, and specified that they were not

applicable to cases filed before the effective date. This case

was filed January 10, 2005, thus placing it even before the

enactment date and making the amendments inapplicable. Because

the amendments do not apply, we reference the relevant provision

by its former designation, § 362(h).

argues that § 362, which provides for the automatic stay in

bankruptcy, creates no private right of action. (Def.’s Mot. at

8-10.) Defendant, however, is only partly correct.

A debtor can, by bringing a private civil suit, seek

recovery for willful violations of the automatic stay. See 11 9

U.S.C. § 362(h) (2004); see also Joubert v. ABN Mortg. Group, 10

Inc. (In re Joubert), 411 F.3d 452, 456 (3d Cir. 2005) (citations

omitted); In re Meyers, No. 05-18208, 2006 Bankr. LEXIS 537, 6-7

(Bankr. D. Pa. April 6, 2006) (contrasting § 362(h)’s explicit

private remedy with the silence of § 524); Hubbard v. National

Bond & Collection Assoc., Inc., 126 B.R. 422, 429 (D. Del. 1991)

(noting that § 362(h) provides for a private right of action for

willful violations of an automatic stay). Thus, a private right

of action is available to seek damages for injury caused by

willful violations of the automatic stay. Defendant’s motion

does not argue that Plaintiff has failed to identify any genuine

issue of material fact as to whether recovery under § 362(h) is

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 16 of 34
available to Plaintiff in this case. Thus, summary judgment on

Plaintiff’s claim, in so far as it seeks relief for violations of

the automatic stay, is not appropriate at this time.

Whether a violation of § 362 may be enforced through § 1983

presents a different inquiry. While § 362, by providing a

private right of action to enforce the automatic stay, appears to

create federal right to Plaintiff’s benefit, we must still

examine whether the remedy of § 1983 has been either explicitly

or implicitly foreclosed. See Three Rivers, 382 F.3d at 421-22. 

The Third Circuit has not addressed the question of whether a

debtor or former debtor can use § 1983 to recover for violations

of § 362. At least one court has found that § 1983 provides a

cause of action to recover for violations of the Bankruptcy Code. 

See, e.g., Gibbs v. Hous. Auth. of New Haven, 76 B.R. 257, 261

(D. Conn. 1983). Gibbs, however, was decided before the Supreme

Court’s decisions declining to find a § 1983 cause of action

where Congress had implicitly foreclosed such a remedy by

creating a comprehensive remedial scheme. Sea Clammers, 453 U.S.

1 (finding that Congress foreclosed a § 1983 remedy under Federal

Water Pollution Control Act as evidenced by the Act's

comprehensive remedial scheme). By providing a remedy for

damages, as well as giving contempt powers to the bankruptcy

courts, Congress has created a comprehensive system by which

debtors may enforce the automatic stay. See 11 U.S.C. § 362(h). 

We agree with the Bankruptcy Court of this district that Congress

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 17 of 34
has provided just the type of comprehensive remedial scheme

contemplated by Sea Clammers. Thus, [r]esort to §[] 1983 []

would circumvent that express statutory scheme.” Lesniewski v.

Kamin (In re Lesniewski), 246 B.R. 202, 213 (Bankr. D. Pa. 2000). 

Plaintiff cannot, therefore, pursue a § 1983 action to recover

for any alleged violations of the automatic stay.

2. 11 U.S.C. § 1322(c)(2)

In addition to claiming a violation of the automatic stay,

Plaintiff alleges that Defendant violated 11 U.S.C. § 1322(c)(2). 

This section addresses the proper contents of a Chapter 13 plan. 

See generally 11 U.S.C. § 1322. Specifically, § 1322(c)(2)

provides that

. . . in a case in which the last payment on the

original payment schedule for a claim secured only by a

security interest in real property that is the debtor's

principal residence is due before the date on which the

final payment under the plan is due, the plan may

provide for the payment of the claim as modified

pursuant to section 1325(a)(5) of this title [11 USCS §

1325(a)(5)].

11 U.S.C. § 1322(c)(2). Unlike § 362, nothing in this subsection

or the other portions of § 1332 explicitly creates a private

right of action. See 11 U.S.C. § 1322; see also Smith v. Keycorp

Mortg., Inc., 151 B.R. 870, 876 (N.D. Ill. 1993). Smith applied

the Cort factors to § 1322, and concluded that no private right

of action was available. Id. 

While a debtor seeking the protections of bankruptcy is

certainly among those Congress intended the Bankruptcy Code to

benefit, our inquiry does not end there. Smith, 151 B.R. at 876.

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 18 of 34
Although § 1322, unlike § 362, does not provide any 11

private right of action, adequate opportunity exists for a debtor

to enforce his rights through the bankruptcy proceedings and, if

necessary, appeal. It is not clear the extent to which

Plaintiff, while before the bankruptcy court, sought to modify

 The comprehensive remedial system provided by the Bankruptcy

Code, and the fact that Congress explicitly created certain

private rights of action through other sections of the Code,

suggest that if Congress intended to create a private right of

action, it would have done so expressly. Id. The Code gives the

bankruptcy courts the power to evaluate Chapter 13 plans and

their impact on debtors, and further provides that a district

court may issue such orders as are necessary to carry out the

provisions of the Code. See 11 U.S.C. § 105(a). Where a

plaintiff brings a civil action separate from the bankruptcy or

appeal thereof, however, he does not seek such action from the

bankruptcy court, but instead asks that the district court punish

a creditor for alleged violation of the bankruptcy code. The

Third Circuit has found that § 105(a), while it affords

additional powers to a district court sitting in bankruptcy,

“does not authorize separate lawsuits as a remedy for bankruptcy

violations.” In re Joubert, 411 F.3d at 455-56 (citations

omitted). Thus, the district court cannot, through a private

civil action, consider claims based on violations of § 1322. We

further find that, as with § 362, allowing a § 1983 action for

violations of § 1322 would improperly circumvent the existing

remedial scheme of the Bankruptcy Code. See supra Part III.B.1. 11

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 19 of 34
any Chapter 13 plan pursuant to § 1322. Plaintiff did not appeal

any of the five bankruptcies.

Whether or not the praecipe requesting entry of default is 12

a violation of the automatic stay is a separate question.

While the execution of confessed judgments to collect 13

monies under a residential mortgage is subject to the notice

requirements of Rule 2958.1, the notice requirements for such

judgments not based on a confession of judgment are provided by

Rule 3101 et seq.

Plaintiff cites 2958.1 as providing for “Substitution, 14

reissuance and expiration of writ.” This provision, however

contains no such language or title. Rule 3106, which applies to

non-confessed judgments for money, bears this exact title. Even

if Rule 3106 is applicable, it no more creates a private right of

action than any other rule, and therefore cannot be the basis for

Plaintiff’s suit.

C. Pennsylvania Rule of Civil Procedure 2958.1

Plaintiff alleges that Defendant violated Pennsylvania Rule

of Civil Procedure 2958.1. Chapter 2950, under which Rule 2958.1

appears, sets forth the mechanisms for obtaining and enforcing a

confessed judgment for money. See Pa. R.C.P. Nos. 2950 et seq. 

Rule 2958.1 addresses the manner of execution on a confessed

judgment. There is no evidence that the complaint filed by

Defendant in the Foreclosure Action was based on a confession of

judgment. Rather, it appears that a complaint was filed with no

confession of judgment, but Plaintiff failed to answer, resulting

in default. Default and a confessed judgment are not 12

equivalent, and not subject to the same procedural rules. Thus, 13

it would appear that the notice requirements of 2958 (and,

indeed, Chapter 2950 as a whole) are inapplicable.14

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 20 of 34
§1983 provides no remedy for violations of state law. See 15

supra n.8.

Even if we could determine that Rule 2958.1 applied,

Plaintiff cannot recover for violations of the rule unless it

creates a private right of action. Nothing in Rule 2958.1 or any

other section of the Pennsylvania Rules of Civil Procedure

suggests that any substantive right accrues to any individual or

group under the rules. Furthermore, the rules may not “abridge,

enlarge []or modify the substantive rights of any litigant. . .

.” 42 Pa. C.S. § 1722(a). Thus, it is clear that the

legislature did not intend for any substantive right, express or

implied, to be created by the Pennsylvania Rules of Civil

Procedure, and Plaintiff cannot recover for a violation of the

rules through a private civil suit based on either of these

rules.15

D. § 1983

1. State Rights

To the extent Plaintiff seeks to employ § 1983 to recover

for alleged violations of state law or procedure, summary

judgment is appropriate because § 1983 provides a remedy only for

violation of a right protected by federal constitutional or

statutory provisions. See 42 U.S.C. § 1983. Violations of state

law cannot, alone, provide a federal right that may be vindicated

through § 1983.

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 21 of 34
2. Due Process

Plaintiff’s § 1983 claim appears to allege that, by

violation the provisions of the Bankruptcy Code, various criminal

statutes, and state procedure, Defendant deprived Plaintiff of

his right to due process of law. As discussed above, the bulk of

these statutes provide no right of recovery in themselves or

through § 1983. We are left with the question of whether

Defendant’s alleged actions violated Plaintiff’s right to due

process of law. 

a. Statute of limitations

Defendant asserts that Plaintiff can only pursue a § 1983

claim for events that occurred on or after January 10, 2003

because the statute of limitations bars recovery on all other

alleged actions. The statute of limitations for a § 1983 claim

is determined by the state law statute of limitations for

personal injury torts which, in Pennsylvania, is two years. Rose

v. Bartle, 871 F.3d 331, 347 (3d Cir. 1989) (citations omitted). 

Under federal law, a § 1983 claim accrues, and the statute of

limitations begins to run, when the plaintiff knew or had reason

to know of the injury that forms the basis of the action. Id. at

347-48.

The wrongful acts alleged by Plaintiff date back to February

1999, when Plaintiff alleges Defendant violated the automatic

stay. There is nothing to suggest that Plaintiff was unaware of

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 22 of 34
The continuing violation doctrine provides an “‘equitable 16

exception to the timely filing requirement.’” Cowell v. Palmer

Twp., 263 F.3d 286, 292 (3d Cir. 2001) (quoting West v.

Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995)). This

doctrine may be applicable where the alleged conduct is part of a

“continuing practice” and the last act evidencing that pattern

falls within the statute of limitations. Id. (citing Brenner v.

Local 514, United Brotherhood of Carpenters and Joiners of Am.,

927 F.2d 1283, 1295 (3d Cir. 1991)). A continuing practice

requires continuing affirmative, illegal acts, not merely

continuing ill effects of an original violation. Id. In

determining whether the continuing violation doctrine applies,

courts must consider (1) whether the alleged violations

constitute the same type of illegal conduct; (2) whether the

alleged acts recurred or were merely isolated incidents; and (3)

whether the act had a degree of permanence such that the

plaintiff should have been aware of his rights and the duty to

assert them. Id. (citing West, 45 F.3d at 755 n.9).

With regards to the acts alleged to have occurred prior to

January 10, 2003, Plaintiff alleges that Defendant violated the

automatic stay, demanded excessive payments, used poor accounting

practices, and obtained an invalid praecipe and writ. Even if we

assume that there is some consistent subject matter among these

acts, these acts did not affirmatively continue or recur on a

regular basis, and that they may have caused continuing ill

effects is insufficient to transform them into a continuing

practice. Thus, Plaintiff could not successfully show that the

pre-January 10, 2003 allegations should be deemed timely under

the continuing violations doctrine.

any of the alleged wrongs – on the contrary, he repeatedly sought

to advance many of the same allegations in bankruptcy court and

in the Foreclosure Action. Nor has Plaintiff argued or shown

that the alleged acts were part of a continuing series of

affirmative acts that might warrant the application of the

continuing violation doctrine. Thus, Plaintiff’s § 1983 claim 16

is time-barred to the extent that it seeks to recover for alleged

wrongs committed before January 10, 2003.

b. State action

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 23 of 34
The allegations remaining before us are that the praecipe

and writ obtained on November 5, 2004 were invalid, that the

First Sale Affidavit was false, and that Plaintiff was wrongfully

forced to enter into the Stipulation in the Fifth Bankruptcy. A

§ 1983 plaintiff must show that a person (or persons) acting

under color of state law deprived him of a right conferred by the

Constitution or federal law. See 42 U.S.C. § 1983. Defendant

argues that Plaintiff cannot show that Defendant acted under

color of state law.

Defendant is a private lending institution. In a case

involving private parties, a plaintiff may show the requisite

state action by establishing that "the conduct allegedly causing

the deprivation of a federal right [is] fairly attributable to

the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).

Determining whether actions are can fairly be attributed to the

state requires consideration of two factors:

First, the deprivation must be caused by the exercise

of some right or privilege created by the State or by a

rule of conduct imposed by the state or by a person for

whom the state is responsible. . . . Second, the party

charged with the deprivation must be a person who may

fairly be said to be a state actor. This may be because

he is a state official, because he has acted together

with or has obtained significant aid from state

officials, or because his conduct is otherwise

chargeable to the State.

Id. Defendant argues that initiating and participating in a

mortgage foreclosure proceeding does not make a creditor’s

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 24 of 34
Defendant’s role in the bankruptcy proceedings cannot 17

transform it into a state actor because, at most, it shows that

Defendant “acted together with or gained significant aid from”

the federal bankruptcy courts. Because § 1983 covers only state,

not federal, actors, actions in concert with the federal

government cannot create the basis for a § 1983 claim. See

Bivens v. Six Unknown Named Agents of the Fed. Bureau of

Narcotics, 403 U.S. 388 (1971). Furthermore, we find no

authority supporting that a Bivens claim can lie for a debtor

against a creditor by virtue of his participation in that

debtor’s bankruptcy proceedings.

conduct attributable to the state.17

While Defendant is correct that a creditor does not become a

state actor merely be initiating a mortgage foreclosure action,

it is less clear whether obtaining and serving a writ of

execution is state action. In arguing that participation in

foreclosure only becomes state action when property is actually

seized, Defendant relies on Jordan v. Fox, Rothschild, O’Brien

and Frankel, 20 F.3d 1250, 1271 (3d Cir. 1994) and Grillo v. BA

Mortgage, LLC, Civ. A. No. 04-2897, 2004 U.S. Dist. LEXIS 20347

(E.D. Pa. Oct. 4, 2004).

In Jordan, the Third Circuit found that the enforcement of a

writ of execution on a confessed judgment violated the due

process clause because it allowed seizure of property without

providing an avenue for the plaintiff to seek a pre-deprivation

hearing or obtain prompt post-seizure relief. Jordan, 20 F.3d at

1271. The court found that while obtaining a confessed judgment

did not make a creditor or its attorneys a state actor, obtaining

a writ, and using the sheriff to serve and enforce that writ to

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 25 of 34
seize the plaintiff’s bank account, made the creditor’s and

attorneys’ conduct attributable to the state. Id. (citations

omitted).

Grillo applied Jordan where a attorneys for a creditor in a

mortgage foreclosure proceeding unilaterally, and without court

approval or notice, increased the amount of the writ of

execution. Grillo, 2004 U.S. Dist. LEXIS at *13. Grillo found

that, under Jordan, the attorneys became state actors when they

“enlist[ed] the compulsive powers of the local [s]heriff” to

execute a writ of default judgment to sell a home. Id. at *18-

22. The court pointed out that the defendants “actually ‘caused

the Sheriff of Bucks County to sell the Grillos’ Home to

BA/Nationsbanc . . . .’” Id. at *20.

Thus, contrary to Defendant’s assertions, it appears that it

is the enlistment of the sheriff’s aid in delivering and

executing on a writ that makes a creditor (or his attorney) a

state actor. Because Defendant, assuming it acted in compliance

with the relevant rules, employed the services of the local

sheriff to serve the writ, Defendant’s actions therein are

attributable to the state. Furthermore, Defendant did,

ultimately, cause the sheriff to sell Plaintiff’s home. See

infra Part III.D.2.c.i.

c. Due process violation

We examine whether Plaintiff has raised any genuine issue of

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 26 of 34
material fact as to whether Defendant’s alleged actions, in so

far as they used the compulsive power of the local sheriff,

violated Plaintiff’s due process rights. Procedural due process

under the Fourteenth Amendment requires “notice and an

opportunity to be heard before the Government deprives [one] of

property.” United States v. James Daniel Good Real Property, 501

U.S. 43, 48 (1993). Defendant argues that there was no

deprivation of property, and that Plaintiff had sufficient notice

and opportunity to be heard.

i. Deprivation of property

Defendant argues that Plaintiff has not objected to the

sheriff’s sale itself, and, thus, no deprivation of property is

before us. While Defendant may be technically correct, we must

construe Plaintiff’s pro se claims liberally. See supra Part II. 

It appears that Plaintiff previously asked this Court to enjoin

the sheriff’s sale, and that the ultimate goal of Plaintiff’s

case is to invalidate the mortgage foreclosure and recover his

property. (See Compl. at 4.) While inartfully presented, we are

satisfied that Plaintiff’s Complaint contemplated the loss of his

property, and that it would defy logic to conclude that no

“deprivation” occurred.

ii. Notice and opportunity to be heard

Defendant argues that Plaintiff received ample notice and

opportunities to be heard. The challenged writ was issued

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 27 of 34
November 5, 2004. Plaintiff does not claim that he did not have

notice of the writ before the sale, but rather that it was itself

invalid. It is not entirely clear whether this argument is based

on his belief that the Stipulation was invalid, or on his

allegation that service of the notice of the sheriff’s sale

scheduled for December 29, 2004 was defective. Plaintiff has

presented no facts showing that the praecipe and writ were

invalid on the basis that the Stipulation was defective. 

Plaintiff continues to rest on his allegations and legal

conclusions that the Stipulation was unfair, and that he was not

able to pay. It is clear, however, that the Stipulation, even

before Plaintiff defaulted, granted Defendant relief from the

automatic stay, and thus allowed them to proceed with the

Foreclosure Action. While we construe Plaintiff’s pleadings

liberally, he must still present some competent evidence in

support of his claims to defeat Defendant’s motion, and he has

failed to do so.

Even if Plaintiff had raised some material question of fact

as to whether the writ was invalid, he has failed to show that he

did not have notice and the opportunity to be heard with regards

to the validity of the writ, the veracity of the service

affidavit, and the related propriety of proceeding to sheriff’s

sale. To the contrary, Plaintiff filed motions seeking to reopen

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 28 of 34
Plaintiff’s motions evidence that, at least by the time he 18

filed them, he had notice of the writ and sale.

the judgment and to stay the sheriff’s sale. (See Pl.’s Mots. 18

for Relief.) Plaintiff’s Motions for Relief asserted the same

defects he now presents before this Court. On February 15, 2005,

before any sheriff’s sale was conducted, a hearing was held, at

which Plaintiff was present and represented by an attorney. 

Plaintiff admits that he had the opportunity to have his

objections and arguments heard, and to present evidence and

testimony on his behalf. The court denied Plaintiff’s motions,

and allowed the Sheriff’s sale to go forward.

In contrast to Grillo, the defects alleged here are not

based on the substance of what the creditor claimed was owed, but

on procedural defects that, while they may make a writ voidable,

do not make it automatically void. See Pa. R.C.P. 3162(b)

(providing that execution of a writ may be stayed by the court

upon motion showing a defect in the writ or service). These

alleged procedural defects, in light of Plaintiff’s notice and

opportunity to be heard prior to the sale, cannot create a

genuine issue of material fact as to whether Plaintiff’s due

process rights were violated.

E. § 1985

Under § 1985, a plaintiff must allege (1) a conspiracy; (2)

for the purpose of depriving any person or class of persons of

the equal protection of the laws, or of equal privileges and

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 29 of 34
immunities under the laws; and (3) an act in furtherance of the

conspiracy; (4) whereby a person is either injured in his person

or property or deprived of any right or privilege of a citizen of

the United States. United Bhd. of Carpenters & Joiners of Am.,

Local 610, AFL-CIO v. Scott, 463 U.S. 825, 828-29, 103 S. Ct.

3352, 77 L. Ed. 2d 1049 (1983). In addition to these elements, a

plaintiff must show that there is some racial or other

invidiously discriminatory animus underlying the actions of the

alleged conspirators. Id. at 829.

Plaintiff cannot, as discussed above, sustain his due

process claim under § 1983 against Defendant. See supra Part

III.D.2. Where a plaintiff cannot maintain a § 1983 claim for

deprivation of rights, he is precluded from proceeding with a 

§ 1985 claim based on the same allegations.

Nanya-Nashut ex rel Hand v. Centex Home Equity Corp., Civ. A. No.

03-3661, 2003 U.S. Dist. LEXIS 25174, *7 (E.D. Pa. December 1,

2003) (quoting Caldeira v. County of Kauai, 866 F.2d 1175, 1182

(9th Cir. 1989)). Furthermore, Plaintiff has failed to allege

any conspiracy or discriminatory motive. Thus, even if Plaintiff

could support a due process claim under § 1983, he has not

presented any allegations or facts supporting a conspiracy

motivated by illegally discriminatory motives as required by 

§ 1985.

F. Inapplicable Statutes

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 30 of 34
We note that we considered that “U.C.C.” might be a 19

misprint, and that Plaintiff might have intended to reference 2

U.S.C. § 508, however our research revealed that no such

provision exists.

Some of the statutory citations upon which Plaintiff’s

Complaint relies are entirely irrelevant to the case at bar.

1. 2 U.C.C. § 508

Assuming that Plaintiff’s citation to 2 U.C.C. § 508 refers

to Article 2, Section 508 of the Uniform Commercial Code, such

provision is entirely without application here. This section is

entitled “Cure by Seller of Improper Tender or Delivery;

Replacement” and addresses the ability of a seller of goods to

cure improperly tender or delivery of such goods to the buyer. 

See U.C.C. § 2-508; 13 Pa. C.S. § 2508. Article 2 covers only

transactions in moveable goods – not real property. See 13 Pa.

C.S. § 2102. As this case involves no transaction of goods, this

provision can provide no avenue for recovery.19

2. 2 U.S.C. § 311(3)(B)

Plaintiff provides a citation to 2 U.S.C. § 311(3)(B), but

this Court can locate no such provision. Even if we consider

that this citation might have been intended to refer to Article

2, Section 311 of the Uniform Commercial Code, that provision

contains no sub-section 3, and would, as discussed above, be

inapplicable in any event because Article 2 covers transactions

in goods, not real property.

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 31 of 34
3. Pa. Const. Article III, § 32

Plaintiff asserts that Defendant has violated Article III, 

§ 32 of the Constitution of the Commonwealth of Pennsylvania. 

This section is entitled “Certain Local and Special Laws” and

limits the ability of the state legislature to pass local or

special laws in certain circumstances. None of the listed

circumstances relate to Plaintiff’s claims, nor does Plaintiff

allege any wrongdoing on the part of any legislator. Thus,

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 32 of 34
Plaintiff cannot recover based on a theory that Defendant

violated Article III, § 32 of the state constitution.

IV. Conclusion

For the reasons articulated above, Defendant’s Motion for

Summary Judgment is granted in part and denied in part in

accordance with the attached order. Plaintiff’s Complaint is

dismissed except to the extent it seeks relief pursuant to § 362.

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 33 of 34
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOHN P. MATHEWS

v.

WASHINGTON MUTUAL BANK, FA

:

:

:

:

:

CIVIL ACTION

05-100

ORDER

AND NOW, this 14th day of August, 2006, upon consideration

of Defendant’s Motion for Summary Judgment (Doc. No. 32), and

Plaintiff’s response thereto (Doc. No. 35), it is hereby ORDERED

that Defendant’s motion is GRANTED in part and DENIED in part as

follows:

(a) Defendant’s motion is DENIED to the extent it seeks

dismissal of Plaintiff’s claim pursuant to 11 U.S.C. 

§ 362;

(b) Defendant’s motion is GRANTED as to all other claims;

and

(c) Plaintiff’s Complaint is DISMISSED except to the extent

it seeks recovery pursuant to 11 U.S.C. § 362.

BY THE COURT:

s/J. Curtis Joyner 

J. CURTIS JOYNER, J.

Case 2:05-cv-00100-JCJ Document 36 Filed 08/15/06 Page 34 of 34