AUTHOR’S NOTE

My intention is to inspire users of the book to learn about our legal system and proceed to fight their own legal wars. Although the book is a first step toward understanding our legal system and how to work within it, I advise readers to use the book as a study guide and collaterally research such valuable materials as the local state and federal rules guides. I have often been asked, “would you be mad if we used your material?” My answer – “I’ll be mad if you don’t!” I do, however, caution that before anyone submits any pleading in any proceeding it is not merely wise but MANDATORY that the local rules are checked.  For example, some jurisdictions require a notice before filing pleadings and all jurisdictions that I am aware of require that a copy of your pleading be certified to the other side.

          - Richard Luke Cornforth


Table of Contents

SECTION ONE: Secrets of the legal industry 

                                                 

          We have a two-tiered court system                                       

          We have a common law court system

          The real law is found in the annotated statutes                                      

          There are two types of jurisdiction relating to people

          Attorneys can’t testify.

              Statements of counsel in brief or in oral argument

              are not facts before the court   

 

SECTION TWO: The law of voids  

                                                             

          Everything you always wanted to know about void judgments but

          were afraid to ask                                                                          

          Reasons why subject matter jurisdiction CAN be lost                           

          Summary of the principles of the doctrine or law of voids                      

          Sample petitions to vacate                                                             

 

SECTION THREE: The Fair Debt Collections Practices Act: Overview of the Act 

                                                                        

          Note and contract law                                                                             

          Phone scripts                                                                               

          Early letter to collector                                                                  

          Late letter to collector                                                                            

          Sample of suit for damages under the Act  

                                                    

SECTION FOUR: Civil litigation  

                                                                

          Is your lawsuit really frivolous?                                                        

          Sample case                                                                                

          Have you really failed to state a claim upon which relief can be granted?          

          Sample case                                                                                

 

SECTION FIVE: Appeals  

                                                                         

          Sample state appeal                                                                      

          Sample federal appeal                                                                              

 

SECTION SIX: Dealing with administrative authority 

                                      

          Sample suit for judicial review of administrative action                         

          Priddy vs City of Tulsa                                                            

                  

SECTION SEVEN: Civil rights actions  

                                                       

          Malicious prosecution                                                                   

          Denial of remedy                                                                         

          False imprisonment / imprisonment for “contempt.”                                      

 

 

SECTION EIGHT: Attacking the internal revenue service

                               

          Remedies                                                                                     

          Would you believe that a RACS 006 is not an assessment?                  

          Sample of suit for violation of collection practices guidelines               

          Sample suit for relief of conviction for evasion and / or willful failure     

          Sample suit for removal of trespass by the IRS                                 

 

SECTION NINE: RICO – the ultimate weapon 

                                             

          Overview of civil rico                                                                       

          Sample civil RICO SUIT                                                                 

 

SECTION TEN: Strategies 

                                                                     

          Supremacy and equal protection of the laws                                              

          Affidavits                                                                                   

          Objections                                                                                 

          Notice of lis pendens                                                                   

          Preliminary injunction                                                          

          Writ of mandamus                                                                       

          Writ of prohibition                                                                       

          Deposing them                                                                            

          Being deposed                                                                                      

          Interrogatories                                                                                     

          Admissions                                                                                 

          Bankruptcy, using the law of voids under 11 USC 9014                       

          Defending against a motion for summary judgment                             

          Defending against a motion to dismiss                                             

          Quo Warranto                                                                             

          Complaint against a federal judge                                                   

          Using a declaration                                                                      

         

SECTION ELEVEN: Resources                                                                  

 

SECTION TWELVE: The Political Solution                                                   

 

APPENDIX

 

          Application for a taxpayer’s assistance order

                                          


SECTION ONE Secrets of the legal industry 

We have a two tiered court system

    We have a two-tiered court system. In our system, we have supreme courts and courts of inferior jurisdiction. When we were children and learning in school, we were instructed that there are three branches of government, the legislative, the administrative, and the judicial. What were not told was that courts of inferior jurisdiction, regardless of their claimed origin such as The United States Constitution Article Three, Section one, can not be presumed to act judicially. Most courts of inferior or limited jurisdiction have no inherent jurisdictional authority, no inherent judicial power whatsoever. Courts of limited jurisdiction are empowered by one source: SUFFICIENCY OF PLEADINGS – meaning one of the parties appearing before the inferior court must literally give the court its judicial power by completing jurisdiction. Federal courts are courts of limited jurisdiction, and may only exercise jurisdiction when specifically authorized to do so. A party seeking to invoke a federal court's jurisdiction bears the burden of establishing that such jurisdiction exists.

See Scott v. Sandford, 60 U.S. 393 (U.S. 01/02/1856), SECURITY TRUST COMPANY v. BLACK RIVER NATIONAL BANK (12/01/02) 187 U.S. 211, 47 L. Ed. 147, 23 S. Ct. 52, McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936), HAGUE v. COMMITTEE FOR INDUSTRIAL ORGANIZATION ET AL. (06/05/39) 307 U.S. 496, 59 S. Ct. 954, 83 L. Ed. 1423, UNITED STATES v. NEW YORK TELEPHONE CO. (12/07/77) 434 U.S. 159, 98 S. Ct. 364, 54 L. Ed. 2d 376, CHAPMAN v. HOUSTON WELFARE RIGHTS ORGANIZATION ET AL. (05/14/79) 441 U.S. 600, 99 S. Ct. 1905, 60 L. Ed. 2d 508, CANNON v. UNIVERSITY CHICAGO ET AL. (05/14/79) 441 U.S. 677, 99 S. Ct. 1946, 60 L. Ed. 2d 560, PATSY v. BOARD REGENTS STATE FLORIDA (06/21/82) 457 U.S. 496, 102 S. Ct. 2557, 73 L. Ed. 2d 172, MERRILL LYNCH v. CURRAN ET AL. (05/03/82) 456 U.S. 353, 102 S. Ct. 1825, 72 L. Ed. 2d 182, 50 U.S.L.W. 4457,  INSURANCE CORPORATION IRELAND v. COMPAGNIE DES BAUXITES DE GUINEE (06/01/82) 456 U.S. 694, 102 S. Ct. 2099, 72 L. Ed. 2d 492, 50 U.S.L.W. 4553,  MATT T. KOKKONEN v. GUARDIAN LIFE INSURANCE COMPANY AMERICA (05/16/94) 128 L. Ed. 2d 391, 62 U.S.L.W. 4313.

OKLAHOMA MAY SAY IT BEST! = We recognize the district court, in our unified court system, is a court of general jurisdiction and is constitutionally endowed with "unlimited original jurisdiction of all justiciable matters, except as otherwise provided in this Article,". Article 7, Section 7, Oklahoma Constitution. However, this "unlimited original jurisdiction of all justiciable matters" can only be exercised by the district court through the filing of pleadings which are sufficient to invoke the power of the court to act.  The requirement for verified information to confer subject matter jurisdiction on the court and empower the court to act has been applied to both courts of record and not of record.  We determine that the mandatory language of 22 O.S. 1981 § 303 [22-303], requiring endorsement by the district attorney or assistant district attorney and verification of the information is more than merely a "guaranty of good faith" of the prosecution. It, in fact, is required to vest the district court with subject matter jurisdiction, which in turn empowers the court to act. Only by the filing of an information which complies with this mandatory statutory requirement can the district court obtain subject matter jurisdiction in the first instance which then empowers the court to adjudicate the matters presented to it.

We therefore hold that the judgments and sentences in the District Court of Tulsa County must be REVERSED AND REMANDED without a bar to further action in the district court in that the unverified information failed to confer subject matter jurisdiction on the district court in the first instance,

Chandler v. State, 96 Okl.Cr. 344, 255 P.2d 299, 301-2 (1953), Smith v. State, 152 P.2d 279, 281 (Okl.Cr. 1944); City of Tulsa, 554 P.2d at 103; Nickell v. State, 562 P.2d 151 (Okl.Cr. 1977); Short v. State, 634 P.2d 755, 757 (Okl.Cr. 1981); Byrne v. State, 620 P.2d 1328 (Okl.Cr. 1980); Laughton v. State, 558 P.2d 1171 (Okl.Cr. 1977)., and  Buis v. State, 792 P.2d 427, 1990 OK CR 28 (Okla.Crim.App. 05/14/1990).

To invoke the jurisdiction of the court under the declaratory judgments act there must be an actual, existing justiciable controversy between parties having opposing interests, which interests must be direct and substantial, and involve an actual, as distinguished from a possible, potential or contingent dispute. Gordon v. Followell, 1964 OK 74, 391 P.2d 242. To be "justiciable," the claim must be suitable for judicial inquiry, which requires determining whether the controversy (a) is definite and concrete, (b) concerns legal relations among parties with adverse interests and (c) is real and substantial so as to be capable of a decision granting or denying specific relief of a conclusive nature." Dank v. Benson, 2000 OK 40, 5 P.3d 1088, 1091. See also, 12 O.S. §1651. See also, Easterwood v. Choctaw County District Attorney, 45 P.3d 436, 2002 OK CIV APP 41 (Okla. App. 01/11/2002)).

Another well spoken authority: On the date specified in the notice of hearing, all parties may appear and be heard on all matters properly before the court which must be determined prior to the entry of the order of taking, including the jurisdiction of the court, the sufficiency of pleadings, whether the petitioner is properly exercising its delegated authority, and the amount to be deposited for the property sought to be appropriated. See CITY LAKELAND v. WILLIAM O. BUNCH ET AL. (04/03/74) 293 So. 2d 66.

     I hope by now, everyone understands that a court DOES NOT GET ITS JURISDICTIONAL AUTHORITY FROM THE FLAG THAT IS POSTED!!!!    Court’s of inferior or limited jurisdiction get their authority from ONE SOURCE AND ONLY ONE SOURCE = pleadings sufficient to empower the court to act meaning one of the parties must give the court its power to act by way of written and oral argument (the parties NOT THEIR ATTORNEYS MUST DO THIS!).

Back to Top

We have a common law court system 

We have a common law court system. There are two basic forms of law in the world – code law and common law. Code law means that the law as written is the law. Unfortunately, code has to be continually expanded by legislative authority. The so called Internal Revenue Service Code is an attempt to impose code law over common law – the results are disasters! Common law means that you can’t read any statute, rule, or law for that matter any constitutional article and tell what it means on its face. A common law system means that what any statute, rule, law, or constitutional law means is determined by the highest court of competent jurisdiction in their most recent ruling. In America, only Louisiana uses a code law system.

DEVELOPMENT OF THE COMMON-LAW COURT SYSTEM IN AMERICA

    The Supreme Court is a common-law court that operates in a system that has little “federal common law.” Yet its common-law nature is important to the Court’s functioning as a constitutional arbiter.  “Common law is a system of law made not by legislatures but by courts and judges. Although often called “unwritten law,” the phrase actually refers only to the source of law, which is presumed to be universal custom, reason, or “natural law.” In common law, the substance of the law is to be found in the published reports of court decisions. Two points are critical to the workings of a common-law system. First, law emerges only through litigation about actual controversies. Second, precedent guides courts: holdings in a case must follow previous rulings, if the facts are identical. This is the principle of stare decisis. But subsequent cases can also change the law. If the facts of a new case are distinguishable, a new rule can emerge. And sometimes, if the grounds of a precedent are seen to be wrong, the holding can be overruled by later courts.

    When the Constitution was drafted, American society was infused with common-law ideas. Common law originated in the medieval English royal courts. By 1776, it had been received in all the British colonies. The revolutionary experience heightened Americans’ adherence to common law, especially to the idea that the principle embodied in the common law controlled the government. While there is no express provision in the Constitution stating that the Supreme Court is a common-law court, Article III divides the jurisdiction of federal courts into law (meaning common law), equity, and admiralty.  The Philadelphia Convention of 1787 rejected language that would limit federal jurisdiction to matter controlled by congressional statute. Thus the Constitution implicity recognizes the Supreme Court as a common-law court, as does the Seventh Amendment in the Bill of Rights.

The Constitution left open the question whether there was a federal common law. The Supreme Court first held, in United State v. Hudson and Goodwin 1812), that there is no federal common law of crimes, and then, in Wheaton v. Peters (1834), that there is no federal civil common law. But in Swift v. Tyson (1842), the Court permitted lower federal courts to decide commercial law questions on the basis of “the general principles and doctrines of commercial jurisprudence” thus opening the door to later growth of a general federal common law. A century later, the Court put a stop to this development in Erie Railroad v. Thompkins (1938) by declaring Swift unconstitutional. (Yet, at the same time, it acknowledged the existence of bodies of specialized federal common law, such as, for example, it refuses to render advisory opinions, waiting instead for litigants to bring issues before it. Precedent shapes the Court’s power of judicial review; because of it, any ruling of the Court is a precedent for similar cases.  Thus if one state’s law is held unconstitutional, all similar statutes in other states are unconstitutional a point the Court was obliged to underscore forcibly in Cooper v. Aaron (1958) in the face of intransigent southern resistance to the Court’s holding in Brown v. Board of Education (1954).

The Fourteenth Amendment

    Under Article I, section 2 of the Constitution, a slave had been counted as three-fifths of a person for purposes of representation. Southern states expected a substantial increase in their representation in the House of Representatives after the Civil War. The Union, Having won the war, might lose the peace. Before the war, southern states suppressed fundamental rights, including free speech and press in order to protect the institution of slavery. Though the Supreme Court had ruled in 1833 in Baron v. Baltimore that guarantees of the Bill of Rights did not limit the states, many Republicans thought state officials were obligated to respect those guarantees. The Fourteenth Amendment prohibited states from abridging privileges and immunities of citizens of the United States and from depriving persons of due process of law or equal protection of the laws. Early interpretations of the Fourteenth Amendment drastically curtailed the protection afforded by the amendment. Decisions such as Twinin v. New Jersey in 1908 and Gitlow v. New York in 1925 expanded the Fourteenth Amendment to the Bill of Rights meaning that Federal protections applied to protect the individual from trespass on God-given rights by states. Supreme Court decisions have also brought offense to rights done under color of law by private persons within reach of Federal protection. Source – The Oxford Companion To The Supreme Court of The United States

The essence of the Fourteenth Amendment in a nut shell

    The Constitution of the United States was written to protect us from intrusion on our God Given Rights by the Federal Government. The Fourteenth Amendment was necessary to protect us from intrusion on our God Given Rights by state governments, political subunits, and individuals who act under color of law.

WORKBOOK ASSIGNMENT: Define “color of law.” ______________________________

What law is found at 5 USC 3331 and explain the significance of that law ____________________

   

    UNITED STATES CONSITUTIONAL AMENDMENT VII = In suits at common law, where the value in controversy shall exceed  twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the Untied States, than according to the rules of the common law.

 

    Federal courts, in adopting rules, are not free to extend the judicial power of the Untied States described in Article III of the Constitution. Willy v. Coastal Corp.,  503 U.S. 131, 135 (1992). Rule 28A(i) allows courts to ignore this limit. If we mark an opinion as unpublished, Rule 28A(i) provides that is not precedent. Though prior decisions may be well-considered and directly on point, Rule 28A(i) allows us to depart from the law set out in such prior decisions without any reason to differentiate the cases. This discretion is completely inconsistent with the doctrine of precedent; even in constitutional cases, courts “have always required a departure from precedent to be supported by some ‘special justification.’ “United States v. International Business Machines Corp.,  517 U.S. 843, 856 (1996), quoting Payne v. Tennessee, 501 U.S. 808, 842 (1991) (Souter, J., concurring). Rule 28A(i) expands the judicial power beyond the limits set by article III by allowing us complete discretion to determine which judicial decisions will bind us and which will not. Insofar as it limits the precedential effect of our prior decisions, the Rule is therefore unconstitutional.  Anastasoff v. United States of America 223 F.3d 898 (8th Cir. 2000).

 

 
Back to Top

The real law is found in the annotated statutes.  

Partial sample follows 

Current through P.L. 107-48, approved 10-12-01

Example of annotated law

UNITED STATES CODE ANNOTATED

TITLE 15. COMMERCE AND TRADE

CHAPTER 41--CONSUMER CREDIT PROTECTION

SUBCHAPTER V--DEBT COLLECTION PRACTICES

        Copr. ©  West Group 2001.  No claim to Orig. U.S. Govt. Works. 

            §  1692a. Definitions     

HISTORICAL AND STATUTORY NOTES

 

Revision Notes and Legislative Reports

 1968 Acts. House Report No. 1040 and Conference Report No. 1397, see 1968 U.S. Code Cong. and Adm. News, p. 1962.

 1977 Acts. Senate Report No. 95-382, see 1977 U.S. Code Cong. and Adm. News, p. 1695.

 1986 Acts. House Report No. 99-405, see 1986 U.S. Code Cong. and Adm. News, p. 1752.

Amendments

 1986 Amendments. Par. (6).  Pub.L. 99-361 in provision preceding subpar.  (A) substituted "clause (F)" for "clause (G)", in subpar. (E) inserted "and" after "creditor;", struck out subpar. (F), which excluded from the term "debt collector" any attorney-at-law collecting a debt as an attorney on behalf of and in the name of a client, and redesignated subpar. (G) as (F).

CROSS REFERENCES

Private counsel as debt collector, see 31 USCA §  3718.

AMERICAN LAW REPORTS

Validity, construction, and application of state statutes prohibiting abusive or coercive debt collection practices.  87 ALR3d 786. 

What constitutes "debt" for purposes of Fair Debt Collection Practices Act  (15 U.S.C.A. §  1692A(5))159 ALR Fed 121.

What constitutes "debt" and "debt collector" for purposes of Fair Debt Collection Practices Act (15 U.S.C.A. §  1692(a)(5), (6))62 ALR Fed 552.

 LIBRARY REFERENCES

Administrative Law

Fair Debt Collection Practices Act, scope and coverage, see West's Federal Administrative Practice §  3512.

Limitations on communications, see West's Federal Administrative Practice §  3514.

Encyclopedias

 17 Am. Jur. 2d, Consumer and Borrower Protection § §  194, 197-199,201, 202

Law Review and Journal Commentaries

Acceleration notices and demand letters.  Manuel H. Newburger, 47 Consumer Fin.L.Q.Rep. 338 (1993).

Fair Debt Collection Practices Act:  Attorneys beware; you too may be a debt collector.  Janet Flaccus, 1987 Ark.L.Notes 11.

Fair Debt Collection Practices Act:  Emerging source of liability for attorneys.  Christopher A. Golden, 69 N.Y.St.B.J. 14 (Feb. 1997).

Guidelines for consumer debt collection by attorneys under the 1986 Amendment to the Fair Debt Collection Practices Act.  Michael K. Sweig, 21 New Eng.L.Rev. 697 (1985-86).

Texts and Treatises

Business and Commercial Litigation in Federal Courts § §  41.3, 61.4, 61.7  (Robert L. Haig ed.) (West Group & ABA 1998).

 7 Fed. Proc. L Ed Consumer Credit Protection § §  15:67, 68, 76

NOTES OF DECISIONS

Agricultural loans 8

Attorneys 13

Bail bondsmen, debt collector 16a

Business transactions 4

Checks, debt 4a

Child support 5

Civil damages 11

Collection and servicing agencies 14

Communication 1

Consumer 2

Corporate entities 20

Creditors, debt collector 14a

Debt 3-11

           Debt - Generally 3

            Debt - Agricultural loans 8

            Debt - Banks and banking 10

            Debt - Business transactions 4

            Debt - Checks 4a

            Debt - Child support 5

            Debt - Civil damages 11

            Debt - Divorce actions 5a

            Debt - Friendly loans 6

            Debt - Housing assessments 7

            Debt - Tax levy 9

            Debt - Theft 11a

            Debt collector 12-23

            Debt collector - Generally 12

            Debt collector - Attorneys 13

            Debt collector - Bail bondsmen 16a

            Debt collector - Banks and banking 15

            Debt collector - Collection and servicing agencies 14

            Debt collector - Corporate entities 20

            Debt collector - Creditors 14a

            Debt collector - Employees 21  

            Debt collector - Financing companies 16

            Debt collector - Guaranty agencies 19

            Debt collector - Insurers 18

            Debt collector - Judicial entities 23

            Debt collector - Media 22

            Debt collector - Mortgagees 17

            Debt collector - Repossessors 23a

            Debt collector - Service providers 23b

            Divorce actions, debt 5a

            Employees 21

            Financing companies 16

            Friendly loans 6

            Guaranty agencies 19

            Housing assessments 7

            Insurers 18

            Judicial entities 23

            Media 22

            Mortgagees 17

            Official duties 24

            Repossessors, debt collector 23a

            ervice providers, debt collector 23b

          Tax levy 9

            Theft, debt 11a

            Transactions 25

 

 1. Communication

 

 

 Notice demanding payment of rent arrearage or surrender of rented premises to landlord was "communication" to collect debt, within meaning of Fair Debt Collection Practices Act (FDCPA).  Romea v. Heiberger & Associates, S.D.N.Y.1997, 988 F.Supp. 712, affirmed 163 F.3d 111.

 

 

 Collection bureau's notices to debtor qualified as "communications" in connection with the collection of a debt under this section.  In re Scrimpsher, Bkrtcy.N.D.N.Y.1982, 17 B.R. 999.

 

 

 2. Consumer

 

 

 Customers of long-distance telephone services provider were not “consumers," within meaning of disclosure requirement of Fair Debt Collection Practices Act (FDCPA) that provider allegedly violated when it failed to notify customers in their telephone bill that it was assisting in collection of debt owed by customers' daughter-in-law to provider's former subsidiary or affiliate, given that customers were not obligated to pay daughter-in-law's debt.  Conboy v. AT & T Corp., S.D.N.Y.2000, 84 F.Supp.2d 492.

 

 

 Debtor, as natural person who was obligated to pay debt to hospital for services provided in connection with her kidney infection, was "consumer" within meaning of the Fair Debt Collection Practices Act (FDCPA).  Creighton v. Emporia Credit Service, Inc., E.D.Va.1997, 981 F.Supp. 411.

 

 

 Patient who had received medical services on credit, and who was primarily responsible for payment of account at medical center, qualified as "consumer" under the Fair Debt Collection Practices Act (FDCPA).  Adams v. Law Offices of Stuckert & Yates, E.D.Pa.1996, 926 F.Supp. 521.

 

 

 Fair Debt Collection Practices Act, establishing liability of debt collector who fails to comply with the Act "with respect to any person," does not limit recovery to "consumers," and thus would not preclude recovery by person to whom debt collector sent letter seeking to collect debt of such person's deceased father even if such person were not a consumer;  but, in any event, such person was a "consumer" when collectors admittedly demanded payment of debt from him.  Dutton v. Wolhar, D.Del.1992, 809 F.Supp. 1130.

 

 

 3. Debt--Generally

 

 

 Unpaid administrative and other fees charged under rental agreement by automobile and truck rental company in event of accident constituted "debt" under Fair Debt Collection Practices Act.  Brown v. Budget Rent-A-Car Systems, Inc., C.A.11 (Fla.) 1997, 119 F.3d 922.

 

 

 First requisite element of debt under Fair Debt Collection Practices Act  (FDCPA) is existence of obligation.  Ernst v. Jesse L. Riddle, P.C., M.D.La.1997, 964 F.Supp. 213.

 

 

 "Debt," under the Fair Debt Collection Practices Act (FDCPA), is transaction in which consumer is offered or extended the right to acquire money, property, insurance or services which are primarily for household purposes and to defer payment.  Adams v. Law Offices of Stuckert & Yates, E.D.Pa.1996, 926 F.Supp. 521.

 

 

 Filing of proof of claim in bankruptcy, even for debt whose amount is disputed, does not trigger the federal Fair Debt Collection Practices Act (FDCPA).  In re Cooper, Bkrtcy.N.D.Fla.2000, 253 B.R. 286.

 

 

 Collection agency was not prohibited by this subchapter from recovering a percentage of the amount due for collection costs where such amounts were expressly authorized by agreements creating the debts.  Grant Road Lumber Co., Inc. v. Wystrach, Ariz.App.1984, 682 P.2d 1146, 140 Ariz. 479.

 

 

 4. ---- Business transactions

 

 

 Dishonored check written in payment for consumer goods created "debt" within purview of Fair Debt Collection Practices Act (FDCPA).  Snow v.Jesse L. Riddle, P.C., C.A.10 (Utah) 1998, 143 F.3d 1350.

 

 

 District court properly dismissed guarantor's state and federal consumer debt collection claims against owner of loan and guaranty, even though guarantor claimed that, because owner was not first owner of loan and guaranty, owner was engaging in collection of debt for another;  guarantor's obligation, which arose out of commercial transaction, did not constitute a "debt" under either Federal Fair Debt Collection Act or Texas Debt Collection Act.  First Gibraltar Bank, FSB v. Smith, C.A.5 (Tex.) 1995, 62 F.3d 133, rehearing denied.

 

 

 Purchase of credit card processing unit was not transaction primarily for personal, family, or household purposes and, thus, obligation arising from such purchase did not constitute "debt" within meaning of Fair Debt Collection Practices Act (FDCPA).  Holman v. West Valley Collection Services, Inc., D.Minn.1999, 60 F.Supp.2d 935.

 

 

 Debtor's obligation to pay automobile liability insurance premiums was  "debt" within meaning of the Fair Debt Collection Practices Act (FDCPA), even though debtor was compelled by state law to obtain such insurance and even though obligation benefited others in addition to debtor.  Kahn v. Rowley, M.D.La.1997, 968 F.Supp. 1095.

 

 

 Neither federal Fair Debt Collection Practices Act (FDCPA) nor Texas Debt Collection Practices Act (DCPA) applied to leases for security equipment obtained and installed by lessees in their family-owned and operated stores, inasmuch as Acts applied to debts arising out of consumer transactions for personal, family, or household purposes, and lessees used equipment for business purposes, even though equipment was intended to provide security to family members working at stores.  Garza v. Bancorp Group, Inc., S.D.Tex.1996, 955 F.Supp. 68.

 

 

 Notes used to pay for a portion of investor's partnership interest in tax- shelter limited partnership were not a "debt" within meaning of Fair Debt Collection Practices Act.  National Union Fire Ins. Co. of Pittsburgh, Pa. v. Hartel, S.D.N.Y.1990, 741 F.Supp. 1139.

 

 

 Collection of purely business-related debt was not governed by Fair Debt Collection Practices Act.  Bank of Boston Intern. of Miami v. Arguello Tefel, E.D.N.Y.1986, 644 F.Supp. 1423.

 

 

 Debt incurred purely for business reasons is not covered by Fair Debt Collection Practices Act.  Mendez v. Apple Bank for Sav., N.Y.City Civ.Ct.1989, 541 N.Y.S.2d 920, 143 Misc.2d 915.

 

 

 4A. ---- Checks

 

 

 Fair Debt Collection Practices Act's (FDCPA) broad definition of "debt" as any obligation to pay arising from consumer transaction applied to dishonored checks, given that check issuers' payment obligations arose from transactions for personal or household goods; thus, check issuers stated claims under FDCPA when they alleged that attorney and company attempting to collect payment on dishonored checks violated FDCPA.  Duffy v. Landberg, C.A.8 (Minn.) 1998, 133 F.3d 1120, rehearing denied, certiorari denied 119 S.Ct. 62, 525 U.S. 821, 142 L.Ed.2d 49.

 

 

 Check writer stated claim when she alleged that check collection agency, attorney, and law firm violated Fair Debt Collection Practices Act (FDCPA) in attempting to collect dishonored check, inasmuch as dishonored check was debt under FDCPA.  Charles v. Lundgren & Associates, P.C., C.A.9 (Ariz.) 1997, 119 F.3d 739, certiorari denied 118 S.Ct. 627, 522 U.S. 1028, 139 L.Ed.2d 607, on remand.

 

 

 5. ---- Child support

 

 

 Child support payments are not "debts" encompassed within scope of Fair Debt Collection Practices Act (FDCPA).  Mabe v. G.C. Services Ltd. Partnership, C.A.4 (Va.) 1994, 32 F.3d 86.

 

 

 Former husband's child support obligation was not debt arising out of transaction with subject primarily of "personal, family, or household purposes," within meaning of the Fair Debt Collection Act, and thus, former husband's child support payments were not "debts" protected by the Fair Debt Collection Practices Act; former husband could not point to any money, property, insurance, or services he received in connection with the child support obligations.  Brown v. Child Support Advocates, D.Utah 1994, 878 F.Supp. 1451.

 

 

 5A. ---- Divorce actions

 

 

 Fair Debt Collection Practices Act (FDCPA) was not applicable to law firm's efforts to enforce property settlement obligations imposed by divorce decree; obligations, though based on negotiated marital termination agreement, did not arise from consumer transaction, and thus were not "debts," within meaning of Act.  Hicken v. Arnold, Anderson & Dove, P.L.L.P., D.Minn.2001, 137 F.Supp.2d 1141.

 

 

 6. ---- Friendly loans

 

 

 Loan between friends made so that debtor could invest in software company was  "business loan," not "consumer debt," and, thus, Fair Debt Collection Practices Act did not apply;  debtor's intended use of funds could not be characterized as "primarily for personal, family or household purposes."  Bloom v. I.C. System, Inc., C.A.9 (Or.) 1992, 972 F.2d 1067.

 

 

 Personal loan between friends which was used by borrower as venture capital investment was not loan "primarily for personal, family, or household purposes" and was thus not subject to Fair Debt Collection Practices Act (FDCPA), regardless of intent of lender.  Bloom v. I.C. System, Inc., D.Or.1990, 753 F.Supp. 314, affirmed 972 F.2d 1067.

 

Back to Top

There are two types of jurisdiction relating to people

There are  a two types of jurisdiction relating  to people.  Personal jurisdiction is lawfully exercised over a defendant if the person lives in a jurisdiction, operates a business in a jurisdiction, owns property in a jurisdiction, or commits an injury in a jurisdiction and   has had notice and opportunity (is in receipt of service and has a copy of the petition, claim, or complaint). If these elements are complete, personal jurisdiction CANNOT BE DENIED. Even if these elements are lacking, personal jurisdiction can be waived by appearance excepting a person, not represented by counsel entering a special appearance for the purpose of challenging the court’s personal jurisdiction.  Subject matter jurisdiction is the court’s power to hear and determine cases of the general class or category to which proceedings in question belong; the power to deal with the general subject involved in the action. Subject matter jurisdiction can never be waived, cannot attach by mutual consent of the parties, or through lapse of time or course of events other than sufficient pleadings. Once established, subject matter jurisdiction CAN be lost. When subject matter jurisdiction is challenged, the party asserting that the court has subject matter jurisdiction has the burden of showing that it exists on the record. Once the court has knowledge that subject matter is lacking, the court (meaning the judge) has no discretion but to dismiss the action. Failure to dismiss means that the court is proceeding in clear absence of all jurisdiction and subjects the judge to suit. Contemplation of subject matter jurisdiction harkens to the memory of Vince Lombardi, who when ask if winning was everything replied, “winning is the only thing.” Personal jurisdiction is not usually an issue, but subject matter jurisdiction is always, always an issue! Subject matter jurisdiction is not everything, it’s the only thing! Incidentally, in rem is the power of a court over a thing so that its jurisdiction is valid against the rights of every person having an interest in the thing; quasi in rem gives the court jurisdiction over  a property interest but only to the limit of the interest in the property and not the property entirely.

                            

Back to Top

 

Attorneys can’t testify. Statements of counsel in brief or in oral argument are not facts before the court. 

 

          This finding of a continuing investigation, which forms the foundation of the majority opinion, comes from statements of counsel made during the appellate process. As we have said of other un-sworn statements which were not part of the record and therefore could not have been considered by the trial court: "Manifestly, [such statements] cannot be properly considered by us in the disposition of [a) case." UNITED STATES v. LOVASCO (06/09/77)  431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752, Under no possible view, however, of the findings we are considering can they be held to constitute a compliance with the statute, since they merely embody conflicting statements of counsel concerning the facts as they suppose them to be and their appreciation of the law which they deem applicable, there being, therefore, no attempt whatever to state the ultimate facts by a consideration of which we would be able to conclude whether or not the judgment was warranted. GONZALES v. BUIST. (04/01/12) 224 U.S. 126, 56 L. Ed. 693, 32 S. Ct. 463.  No instruction was asked, but, as we have said, the judge told the jury that they were to regard only the evidence admitted by him, not statements of counsel, HOLT v. UNITED STATES. (10/31/10) 218 U.S. 245, 54 L. Ed. 1021, 31 S. Ct. 2,  Care has been taken, however, in summoning witnesses to testify, to call no man whose character or whose word could be successfully impeached by any methods known to the law. And it is remarkable, we submit, that in a case of this magnitude, with every means and resource at their command, the complainants, after years of effort and search in near and in the most remote paths, and in every collateral by-way, now rest the charges of conspiracy and of gullibility against these witnesses, only upon the bare statements of counsel. The lives of all the witnesses are clean, their characters for truth and veracity un-assailed, and the evidence of any attempt to influence the memory or the impressions of any man called, cannot be successfully pointed out in this record. TELEPHONE CASES. DOLBEAR v. AMERICAN BELL TELEPHONE COMPANY. MOLECULAR TELEPHONE COMPANY V. AMERICAN BELL TELEPHONE COMPANY. AMERICAN BELL TELEPHONE COMPANY V. MOLECULAR TELEPHONE COMPANY. CLAY COMMERCIAL TELEPHONE COMPANY V. AMERICAN BELL TELEPHONE COMPANY. PEOPLE'S TELEPHONE COMPANY V. AMERICAN BELL TELEPHONE COMPANY. OVERLAND TELEPHONE COMPANY V. AMERICAN BELL TELEPHONE COMPANY. (PART TWO THREE) (03/19/88) 126 U.S. 1, 31 L. Ed. 863, 8 S. Ct. 778.  Statements of counsel in brief or in argument are not sufficient for motion to dismiss or for summary judgment, Trinsey v. Pagliaro, D. C. Pa. 1964, 229 F. Supp. 647. Factual statements or documents appearing only in briefs shall not be deemed to be a part of the record in the case, unless specifically permitted by the Court – Oklahoma Court Rules and Procedure, Federal local rule 7.1(h).

Back to Top

EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT VOID JUDGMENTS BUT WERE AFRAID TO ASK!

Void judgments are those rendered by a court which lacked jurisdiction, either of the subject matter or the parties, Wahl v. Round Valley Bank 38 Ariz. 411, 300 P. 955 (1931); Tube City Mining & Milling Co. v. Otterson, 16 Ariz. 305, 146 P. 203 (1914); and Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 2d 278 (1940). A void judgment which includes judgment entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent power to enter the particular judgment, or an order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court, Long v. Shorebank Development Corp., 182 F.3d 548 ( C.A. 7 Ill. 1999).  A void judgment is one which, from its inception, was a complete nullity and without legal effect, Lubben v. Selevtive Service System Local Bd. No. 27,  453 F.2d 645, 14 A.L.R. Fed. 298 (C.A. 1 Mass. 1972).  A void judgment is one which from the beginning was complete nullity and without any legal effect, Hobbs v. U.S. Office of Personnel Management,  485 F.Supp. 456 (M.D. Fla. 1980). Void judgment is one that, from its inception, is complete nullity and without legal effect, Holstein v. City of Chicago, 803 F.Supp. 205, reconsideration denied 149 F.R.D. 147, affirmed 29 F.3d 1145 (N.D. Ill 1992). Void judgment is one where court lacked personal or subject matter jurisdiction or entry of order violated due process,  U.S.C.A. Const. Amend. 5 – Triad Energy Corp. v. McNell  110 F.R.D. 382 (S.D.N.Y. 1986). Judgment is a void judgment if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process, Fed. Rules Civ. Proc., Rule 60(b)(4), 28 U.S.C.A.; U.S.C.A. Const. Amend. 5 – Klugh v. U.S., 620 F.Supp. 892 (D.S.C. 1985). A void judgment is one which, from its inception, was, was a complete nullity and without legal effect, Rubin v. Johns, 109 F.R.D. 174 (D. Virgin Islands 1985). A void judgment is one which, from its inception, is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind the parties or to support a right, of no legal force and effect whatever, and incapable of enforcement in any manner or to any degreeLoyd v. Director, Dept. of Public Safety, 480 So. 2d 577 (Ala. Civ. App. 1985). A judgment shown by evidence to be invalid for want of jurisdiction is a void judgment or at all events has all attributes of a void judgment, City of Los Angeles v. Morgan,  234 P.2d 319 (Cal.App. 2 Dist. 1951). Void judgment which is subject to collateral attack, is simulated judgment devoid of any potency because of jurisdictional defects,  Ward v. Terriere,  386 P.2d 352 (Colo. 1963). A void judgment is a simulated judgment devoid of any potency because of jurisdictional defects only, in the court rendering it and defect of jurisdiction may relate to a party or parties, the subject matter, the cause of action, the question to be determined, or relief to be granted, Davidson Chevrolet, Inc. v. City and County of Denver, 330 P.2d 1116, certiorari denied 79 S.Ct. 609, 359 U.S. 926, 3 L.Ed. 2d 629 (Colo. 1958). Void judgment is one entered by court without jurisdiction of parties or subject matter or that lacks inherent power to make or enter particular order involved and such a judgment may be attacked at any time, either directly or collaterally,  People v. Wade,  506 N.W.2d 954 (Ill. 1987). Void judgment may be defined as one in which rendering court lacked subject matter jurisdiction, lacked personal jurisdiction or acted in manner inconsistent with due process of law Eckel v. MacNeal,  628 N.E. 2d 741 (Ill. App. Dist. 1993). Void judgment is one entered by court without jurisdiction of parties or subject matter or that lacks inherent power to make or enter particular order involved; such judgment may be attacked at any time, either directly or collaterally People v. Sales, 551 N.E.2d 1359 (Ill.App. 2 Dist. 1990). Res judicata consequences will not be applied to a void judgment which is one which, from its inception, is a complete nullity and without legal effect, Allcock v. Allcock 437 N.E. 2d 392 (Ill. App. 3 Dist. 1982). Void judgment is one which, from its inception is complete nullity and without legal effect In re Marriage of Parks,  630 N.E. 2d 509 (Ill.App. 5 Dist. 1994). Void judgment is one entered by court that lacks the inherent power to make or enter the particular order involved, and it may be attacked at any time, either directly or collaterally; such a judgment would be a nullity People v. Rolland 581 N.E.2d 907, (Ill.App. 4 Dist. 1991). Void judgment under federal law is one in which rendering court lacked subject matter jurisdiction over dispute or jurisdiction over parties, or acted in manner inconsistent with due process of law or otherwise acted unconstitutionally in entering judgment, U.S.C.A. Const. Amed. 5, Hays v. Louisiana Dock Co.,  452 n.e.2D 1383 (Ill. App. 5 Dist. 1983). A void judgment has no effect whatsoever and is incapable of confirmation or ratification, Lucas v. Estate of Stavos,  609 N. E. 2d 1114, rehearing denied, and transfer denied (Ind. App. 1 dist. 1993). Void judgment is one that from its inception is a complete nullity and without legal effect Stidham V. Whelchel,  698 N.E.2d 1152 (Ind. 1998). Relief form void judgment is available when trial court lacked either personal or subject matter jurisdiction,  Dusenberry v. Dusenberry,  625 N.E. 2d 458 (Ind.App. 1 Dist. 1993). Void judgment is one rendered by court which lacked personal or subject matter jurisdiction or acted in manner inconsistent with due process, U.S.C.A. Const. Amends. 5, 14 Matter of Marriage of Hampshire,  869 P.2d 58 ( Kan. 1997). Judgment is void if court that rendered it lacked personal or subject matter jurisdiction; void judgment is nullity and may be vacated at any time, Matter of Marriage of Welliver, 869 P.2d 653 (Kan. 1994). A void judgment is one rendered by a court which lacked personal or subject matter jurisdiction or acted in a manner inconsistent with due process In re Estate of Wells, 983 P.2d 279, (Kan. App. 1999). Void judgment is one rendered in absence of jurisdiction over subject matter or parties 310 N.W. 2d 502, (Minn. 1981). A void judgment is one rendered in absence of jurisdiction over subject matter or parties, Lange v. Johnson, 204 N.W.2d 205 (Minn. 1973).  A void judgment is one which has merely semblance, without some essential element, as when court purporting to render is has no jurisdiction, Mills v. Richardson, 81 S.E. 2d 409, (N.C. 1954). A void judgment is one which has a mere semblance, but is lacking in some of the essential elements which would authorize the court to proceed to judgment,  Henderson v. Henderson, 59 S.E. 2d 227, (N.C. 1950).  Void judgment is one entered by court without jurisdiction to enter such judgment,  State v. Blankenship  675 N.E. 2d 1303, (Ohio App. 9 Dist. 1996). Void judgment, such as may be vacated at any time is one whose invalidity appears on face of judgment roll, Graff v. Kelly, 814 P.2d 489 (Okl. 1991). A void judgment is one that is void on face of judgment roll, Capital Federal Savings Bank v. Bewley, 795 P.2d 1051 (Okl. 1990). Where condition of bail bond was that defendant would appear at present term of court, judgment forfeiting bond for defendant’s bail to appear at subsequent term was a void judgment within rule that laches does not run against a void judgment  Com. V. Miller,  150 A.2d 585 (Pa. Super. 1959). A void judgment is one in which the judgment is facially invalid because the court lacked jurisdiction or authority to render the judgment, State v. Richie,  20 S.W.3d 624 (Tenn. 2000). Void judgment is one which shows upon face of record want of jurisdiction in court assuming to render judgment, and want of jurisdiction may be either of person, subject matter generally, particular question to be decided or relief assumed to be given,  State ex rel. Dawson v. Bomar,  354 S.W. 2d 763, certiorari denied, (Tenn. 1962). A void judgment is one which shows upon face of record a want of jurisdiction in court assuming to render the judgment,  Underwood v. Brown,  244 S.W. 2d 168 (Tenn. 1951). A void judgment is one which shows on face of record the want of jurisdiction in court assuming to render judgment, which want of jurisdiction may be either of the person, or of the subject matter generally, or of the particular question attempted to decided or relief assumed to be given,  Richardson v. Mitchell, 237 S.W. 2d 577, (Tenn.Ct. App. 1950). Void judgment is one which has no legal force or effect whatever, it is an absolute nullity, its invalidity may be asserted by any person whose rights are affected at any time and at any place and it need not be attacked directly but may be attacked collaterally whenever and wherever it is interposed,  City of Lufkin v. McVicker,  510 S.W. 2d 141 (Tex. Civ. App. – Beaumont 1973).  A void judgment, insofar as it purports to be pronouncement of  court, is an absolute nullity, Thompson v. Thompson,  238 S.W.2d 218 (Tex.Civ.App. – Waco 1951). A void judgment is one that has been procured by extrinsic or collateral fraud, or entered by court that did to have jurisdiction over subject matter or the parties, Rook v. Rook, 353 S.E. 2d 756, (Va. 1987). A void judgment is a judgment, decree, or order entered by a court which lacks jurisdiction  of the parties or of the subject matter, or which lacks the inherent power to make or enter the particular order involved,  State ex rel. Turner v. Briggs, 971 P.2d 581 (Wash. App. Div. 1999). A void judgment or order is one that is entered by a court lacking jurisdiction over the parties or the subject matter, or lacking the inherent power to enter the particular order or judgment, or where the order was procured by fraud, In re Adoption of E.L.,  733 N.E.2d 846, (Ill.App. 1 Dist. 2000). Void judgments are those rendered by court which lacked jurisdiction, either of subject matter or parties,  Cockerham v. Zikratch,  619 P.2d 739 (Ariz. 1980). Void judgments generally fall into two classifications, that is, judgments where there is want of jurisdiction of person or subject matter, and judgments procured through fraud, and such judgments may be attacked directly or collaterally,  Irving v. Rodriquez,  169 N.E.2d 145, (Ill.app. 2 Dist. 1960). Invalidity need to appear on face of judgment alone that judgment or order may be said to be intrinsically void or void on its face, if lack of jurisdiction appears from the record,  Crockett Oil Co. v. Effie,  374 S.W.2d 154 ( Mo.App. 1964). Decision is void on the face of the judgment roll when from four corners of that roll, it may be determined that at least one of three elements of jurisdiction was absent: (1) jurisdiction over parties, (2) jurisdiction over subject matter, or (3) jurisdictional power to pronounce particular judgment hat was rendered, B & C Investments, Inc. v. F & M Nat. Bank & Trust, 903 P.2d 339 (Okla. App. Div. 3, 1995). Void order may be attacked, either directly or collaterally, at any time,  In re Estate of Steinfield, 630 N.E.2d 801, certiorari denied, See also Steinfeld v. Hoddick, 513 U.S. 809, (Ill. 1994). Void order which is one entered by court which lacks jurisdiction over parties or subject matter, or lacks inherent power to enter judgment, or order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that party is properly before court,  People ex rel. Brzica v. Village of Lake Barrington, 644 N.E.2d 66 (Ill.App. 2 Dist. 1994). While voidable orders are readily appealable and must be attacked directly, void order may be circumvented by collateral attack or remedied by mandamus,  Sanchez v. Hester,  911 S.W.2d 173, (Tex.App. – Corpus Christi 1995). Arizona courts give great weight to federal courts’ interpretations of Federal Rule of Civil Procedure governing motion for relief from judgment in interpreting identical text of Arizona Rule of Civil Procedure,  Estate of Page v. Litzenburg, 852 P.2d 128, review denied (Ariz.App. Div. 1, 1998).  When rule providing for relief from void judgments is applicable, relief is not discretionary matter, but is mandatory, Orner v. Shalala,  30 F.3d 1307, (Colo. 1994). Judgments entered where court lacked either subject matter or personal jurisdiction, or that were otherwise entered in violation of due process of law, must be set aside,  Jaffe and Asher v. Van Brunt, S.D.N.Y.1994. 158 F.R.D. 278. A "void" judgment, as we all know, grounds no rights, forms no defense to actions taken thereunder, and is vulnerable to any manner of collateral attack (thus here, by ). No statute of limitations or repose runs on its holdings, the matters thought to be settled thereby are not res judicata, and years later, when the memories may have grown dim and rights long been regarded as vested, any disgruntled litigant may reopen the old wound and once more probe its depths. And it is then as though trial and adjudication had never been. 10/13/58 FRITTS v. KRUGH. SUPREME COURT OF MICHIGAN, 92 N.W.2d 604, 354 Mich. 97.On certiorari this Court may not review questions of fact. Brown v. Blanchard, 39 Mich 790. It is not at liberty to determine disputed facts (Hyde v. Nelson, 11 Mich 353), nor to review the weight of the evidence. Linn v. Roberts, 15 Mich 443; Lynch v. People, 16 Mich 472. Certiorari is an appropriate remedy to get rid of a void judgment, one which there is no evidence to sustain. Lake Shore & Michigan Southern Railway Co. v. Hunt, 39 Mich 469.

 

 

Back to Top

Subject matter jurisdiction

 

The really big deal, the real issue in void judgments is, tah, dum, de dum, SUBJECT MATTER JURISDICTION!!!! Remember, subject matter can never be presumed, never be waived, and cannot be constructed even by mutual consent of the parties. Subject matter jurisdiction is two part: the statutory or common law authority for the court to hear the case and the appearance and testimony of a competent fact witness, in other words, sufficiency of pleadings.

Subject matter jurisdictional failings:

(1) no Petition in the record of the case, Brown v. VanKeuren, 340 Ill. 118,  122 1930),

(2) defective Petition filed, Brown v. VanKeuren, 340 Ill. 118, 122 1930),

(3) fraud committed in the procurement of jurisdiction, Fredman Brothers Furniture v Dept. of Revenue, 109 Ill.2d 202, 486 N.E. 2d 893 (1985),

(4) fraud upon the court, In re Village of Willowbrook, 37 Ill.App.3d 393 (1962)

(5) a judge does not follow statutory procedure, Armstrong v Obucino, 300 Ill 140, 143 (1921),

(6) unlawful activity of a judge, Code of Judicial Conduct,

(7) violation of due process, Johnson v Zerbst, 304 U.S. 458, 58 S.Ct. 1019  (1938); Pure Oil Co. v City of Northlake, 10 Ill.2d 241, 245, 140 N.E.2d 289 (1956); Hallberg v Goldblatt Bros., 363 Ill 25 (1936),

(8) if the court exceeded its statutory authority, Rosenstiel v Rosenstiel, 278 F.Supp. 794 (S.D.N.Y. 1967),

(9) any acts in violation of 11 U.S.C. 362(a), In re Garcia, 109 B.R. 335   (N.D. Illinois, 1989),

(10) where no justiciable issue is presented to the court through proper  pleadings, Ligon v Williams, 264 Ill.App.3d 701, 637 N.E.2d 633 (1st Dist. 1994),

(11) where a complaint states no cognizable cause of action against that  party, Charles v Gore, 248 Ill.App.3d 441, 618 N.E. 2d 554 (1st Dist 1993),

(12) where any litigant was represented before a court by a person/law firm that is prohibited by law to practice law in that jurisdiction,

(13) when the judge is involved in a scheme of bribery (the Alemann cases, Bracey v Warden, U.S. Supreme Court No. 96-6133 (June 9, 1997),

(14) where a summons was not properly issued,

(15) where service of process was not made pursuant to statute and Supreme  Court Rules, Janove v Bacon, 6 Ill.2d 245, 249, 218 N.E.2d 706, 708 (1955),

(16) when the Rules of the Circuit Court are not complied with,

(17) when the Local Rules of the special court are not complied with,

(18) where the judge does not act impartially, Bracey v Warden, U.S. Supremr Court No. 96-6133 (June 9, 1997),

(19) where the statute is vague, People v Williams, 638 N.E.2d 207 (1st  Dist. 1994),

(20) when proper notice is not given to all parties by the movant, Wilson v.   Moore, 13 Ill.App.3d 632, 301 N.E.2d 39 (1st Dist. 1973),

(21) where an order/judgment is based on a void order/judgment, Austin v. Smith, 312 F.2d 337, 343 (1962); English v English, 72 Ill.App.3d 736,  393 N.E.2d 18 (1st Dist. 1979), or

(22) where the public policy of the State of Illinois is violated,  Martin-Tregona v Roderick, 29 Ill.App.3d 553, 331 N.E.2d 100 (1st Dist. 1975).

Back to Top

SUMMARY OF THE LAW OF VOIDS

 

          Before a court (judge) can proceed judicially, jurisdiction must be complete consisting of two opposing parties (not their attorneys – although attorneys can enter an appearance on behalf of a party, only the parties can testify and until the plaintiff testifies the court has no basis upon which to rule judicially), and the two halves of subject matter jurisdiction = the statutory or common law authority the action is brought under (the theory of indemnity) and the testimony of a competent fact witness regarding the injury (the cause of action). If there is a jurisdictional failing appearing on the face of the record, the matter is void, subject to vacation with damages, and can never be time barred.  There are an estimated fifty-million ($50,000,000) void judgments on the books in America’s courthouses. IF EVERY VOID JUDGMENT WAS VACATED WITH DAMAGES, IT WOULD REPRESENT THE GREATEST SHIFT IN MATERIAL WEALTH IN THE HISTORY OF THE WORLD!

 

 Sample cases to vacate void judgments

So how do we vacate void judgments?

We petition to vacate them – we sue them!

 

This is known as a collateral attack. Sometimes a direct attack is appropriate but not usually. A direct attack goes back into the same court where judgment obtained and likely to the same judge. Obviously, it is usually most beneficial to do a collateral attack – SUE THEM! SUE THE PARTY WHO GOT THE JUDGMENT AGAINST YOU OR YOUR FRIEND.  Also, after we get the judgment vacated, it’s almost always moot and cannot be reasserted, especially if beyond the statute of limitations. And please remember, statutes of limitation DO NOT APPLY TO VACATING VOID JUDGMENTS!

 

Following are three sample cases to vacate void judgments. The court (meaning the judge) cannot consider any information not shown to be of record in the original case AS THERE IS NO PRE-TRIAL IN VACATING VOID JUDGMENTS!!!!

 

IN THE DISTRICT COURT OF TULSA COUNTY 

STATE OF OKLAHOMA



Robert S. Smart                           )       
                                                )
          Plaintiff                             )
                                                )
v.                                             )        CIVIL NO._____________
                                                )
W. Claire Badgirl                           )
                                                )
          Defendant.                        )
                                                )



VERIFIED PETITION IN THE NATURE OF A PETITION TO VACATE A VOID JUDGMENT AND COLLATERAL ATTACK UNDER AUTHORITY

 OKLAHOMA STAUTE TITLE 12, SECTION 1038


          1. Robert S. Smart, an aggrieved party, petitions this court under authority of O.S. 12, § 1038 for vacation of a void judgment and void garnishment summons, copies of which are attached.

          2. The record made in CJ 2002 0000 verifies that the court wanted subject matter jurisdiction to rule and determine that Robert S. Smart was a judgment debtor to W. Claire Badgirl. Default judgment must be proved by evidence entered on the record through a competent witness. See American Red Cross v. Community Blood Center of the Ozarks, 257 F.3d 859 (8th Cir. 07/25/2001). Statements of counsel in brief or in argument ARE NOT FACTS BEFORE THE COURT AND ARE THEREFORE INSUFFICIENT FOR THE COURT’S SUMMARY CONCLUSION,  Trinsey v. Pagliaro,  D.C. Pa. 1964, 229 F. Supp. 647. Unsupported contentions of material fact are not sufficient on motion for summary judgment, but rather, material facts must be supported by affidavits and other testimony and documents that would be admissible in evidence at trial,  Cinco Enterprises, Ins. V. Benso, Okla., 890 P2d 866 (1994). Where there were no depositions, admissions, answers to interrogatories, or affidavits, plaintiffs motion for summary judgment could not be considered under district court rule (O.S. title 12, Chapter 12, Rule 13) providing for judgment where facts are not controverted, inasmuch as there was a complete absence of any of requisite basis for a proper determination that no substantial controversy existed. Oklahoma Statutes Annotated, Supp. pg. 113. Any ruling on motion for summary adjudication must be made on record parties have actually made and not upon one that is theoretically possible, State ex rel. Macy v. Thirty Thousand Seven Hundred Eighty One Dollars & No / 100,  Okla. App. Div. 1, 865  P.2d 1262 (1993).

          3. William C. Poxx’s May 23, 2002 garnishment affidavit is void on it’s face. Mr. Poxx is a debt collector. Mr. Poxx failed to inform Robert S. Smart of his due process rights under the Fair Debt Collections Practices Act depriving the Tulsa County court clerk of authority to grant the garnishment.

CONCLUSION

          4. The rule of law requires vacation of the judgment and garnishment in case number CJ 2002 0000, returning all that has been taken from Robert S. Smart in respect of the void judgment CJ 2002 0000, compensating Robert S. Smart for the costs in bringing this action, and compelling William C. Poxx to compensate Robert S. Smart for attempting to defraud Robert S. Smart as a jury should decide necessary to amend the bad behavior of William C. Poxx.

JURY TRIAL DEMANDED

I, Robert S. Smart, verify the factual averments of the above and foregoing under penalty of perjury.

                                                          ___________________________

                                                                             Robert S. Smart

STATE OF OKLAHOMA                               INDIVIDUAL ACKNOWLEDGMENT  

COUNTY OF TULSA                                   Oklahoma Form

          Before me, the undersigned, a Notary Public in and for said County and State on this ____ day of ________, 2002, personally appeared __________________________ to me known to be the identical person who executed the within and foregoing instrument and acknowledged to me that he executed the same as his free and voluntary act.

          Given under my hand and seal the day and year last above written.

My commission expires __________

                                                ________________ Notary Public

 

IN THE DISTRICT COURT OF OKLAHOMA COUNTY 

STATE OF OKLAHOMA



Sharon C. Right                           )       
                 and                                    )

Jim R. Right                                 )

                                                )
          Plaintiffs                           )
                                                )
v.                                             )        CIVIL NO._____________
                                                )
MIDFIRST BANK, N.A.          )
                                                )
          Defendant.                        )
                                                )



PETITION IN THE NATURE OF A PETITION TO VACATE
A VOID JUDGMENT AND COLLATERAL ATTACK OKLAHOMA STAUTE TITLE 12, SECTIONS 1031, 1038


1. Sharon C. Right and Jim R. Right, aggrieved parties, petition this court under authority of O.S. 12,  §§ 1031, 1038 for vacation of a void judgment attached.
2. Fraud was practiced in obtaining judgment warranting vacation of “judgment” CS-2001-1234: (1) William L. Nixon, Jr. committed felony fraud by advancing writings which William L. Nixon, Jr. knew were false with the intent that Sharon C. Right and Jim R. Right  and the court would rely on to deprive Sharon C. Right and Jim R. Right of money, property and rights. William L. Nixon, Jr.  knew that the sum demanded of Sharon C. Right and Jim R. Right was different from and greater than a sum Sharon C. Right and Jim R. Right could owe under any lawful theory.

3. The putative judgment in CS-2001-1234 is insufficient on it’s face. The putative judgment in CS-2001-1234 is not ratified by the signature of a judge. This suggests that William L. Nixon, Jr. and David M. Harbour are involved in the holder in due course fraud racket. See O.S. Title 21, Chapter 19, § 554, “Attorney Buying Evidence of Debt-Misleading Court. Every attorney who either directly or indirectly buys or is interested in buying any evidence of debt or thing in action with intent to bring suit thereon is guilty of a misdemeanor. Any attorney who in any proceeding before any court of a justice of the peace or police judge or other inferior court in which he appears as attorney, willfully misstates any proposition or seeks to mislead the court in any matter of law is guilty of a misdemeanor and on any trial therefore the state shall only be held to prove to the court that the cause was pending, that the defendant appeared as an attorney in the action, and showing what the legal statement was, wherein it is not the law. If the defense be that the act was not willful the burden shall be on the defendant to prove that he did not know that there was error in his statement of law.” Any person guilty of falsely preparing any book, paper,  [({ record, })], instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced as genuine upon any [({ trial, proceeding or inquiry whatever, })] authorized by law, SHALL BE GUILTY OF A FELONY. See Oklahoma Statutes Title 21. Crimes and Punishments, Chapter 13, Section 453. Reasonably and logically, the rubber stamp mark of David M. Harbour either appears on the attached putative judgment without knowledge of David M. Harbour or David M. Harbour chose to stamp the judgment rather than sign it to be able to later deny knowledge of the fraud clearly articulated at O.S. Title 21, Chapter 19, § 554. It is also true that an unsigned order is not an order. See SECOND NAT. BANK OF PAINTSVILLE v. BLAIR, 186 S.W.2d 796.

4. A default judgment (even if properly signed) does not enjoy the presumption of res judicata.  William L. Nixon, Jr., placed no evidence on record to prove his case: For want of a competent fact witness appearing and testifying on record, the court wanted subject matter jurisdiction to consider the unverified, undocumented claims of William L. Nixon, Jr.

5. A jury’s determination that the putative judgment in CS-2001-1234 contained a claim which was greater than and different from lawfully owed and or that the putative judgment was not signed and or that jurisdiction is lacking on the face  of the record for want of any evidence whatsoever, warrants vacation of the “judgment” in CS-2001-1234. Determination that William L. Nixon, Jr. has violated O.S. Title 21, Chapter 19, § 554 and or O.S. Title 21, Chapter 13, § 453, and or O.S. Title 21, Chapter 11, § 421 requires a warrant for the arrest of William L. Nixon, Jr.   A jury’s determination that William L. Nixon, Jr. willfully acted to defraud Sharon C. Right and Jim R. Right  justly requires that William L. Nixon, Jr. be compelled to compensate Sharon C. Right and Jim R. Right a sum of not less twenty-five thousand dollars ($25,000.00), the standard damages for fraud.

JURY TRIAL DEMANDED

Prepared and submitted by: ____________________________________________
                                         Sharon C. Right               Jim R. Right
         

 

 

IN THE DISTRICT COURT OF OKLAHOMA COUNTY

 

STATE OF OKLAHOMA

 

Billie E. Brighter                                     )

          and                                           )

Bernarda Brighter                                   )

          a married couple                          )

                                                          )

          Plaintiffs                                     )

                                                          )

v.                                                                              )      No. 1234567890

)

GOETZ AND COMPANY, INC.,          )

                                                          )

          Defendant.                                 )

                                                          )

 

PETITION IN THE NATURE OF A QUIET TITLE ACTION

 AND CLAIM / JUDICIAL NOTICE

 

          1. Billie E. Brighter and Bernarda Brighter, hereinafter the “Brighters,” peition this court under authority of   12 Okl. St. § 93 (4),12 Okl. St. §§ 131, 1141 and 21 Okl. St. § 1533.

          JUDICIAL NOTICE

          2. All officers of the court for Oklahoma County, Oklahoma are hereby placed on notice under authority of the supremacy and equal protection clauses of the United States Constitution  and the common law authorities of Haines v Kerner, 404 U.S. 519-421, Platsky v. C.I.A. 953 F.2d. 25, and Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000) relying on  Willy v. Coastal Corp.,  503 U.S. 131, 135 (1992), “United States v. International Business Machines Corp.,  517 U.S. 843, 856 (1996), quoting Payne v. Tennessee, 501 U.S. 808, 842 (1991) (Souter, J., concurring). Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647, American Red Cross v. Community Blood Center of the Ozarks, 257 F.3d 859 (8th Cir. 07/25/2001), and Local Rules of the United States District Court for the Western District of Oklahoma, Rule 7.1(h), In re Haines: pro se litigants (the Brighters are pro se litigants) are held to less stringent pleading standards than bar licensed attorneys. Regardless of the deficiencies in their pleadings, pro se litigants are entitled to the opportunity to submit evidence in support of their claims. In re Platsky: court errs if court dismisses the pro se litigant   (the Brighters are pro se litigants) without instruction of how pleadings are deficient and how to repair pleadings. In re Anastasoff: litigants’ constitutional rights are violated when courts depart from precedent where parties are similarly situated.  All litigants have a constitutional right to have their claims adjudicated according the rule of precedent. See Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000). Statements of counsel, in their briefs or their arguments are not sufficient for a motion to dismiss or for summary judgment, Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647. See also,  Local Rules of the United States District Court for the Western District of Oklahoma, Rule 7.1(h). This court is also noticed on the following point of law: Prevailing party on default judgment of liability must still prove damages, American Red Cross v. Community Blood Center of the Ozarks, 257 F.3d 859 (8th Cir. 07/25/2001). This court is further  noticed on  U.S.C.A. Const. Amend. 5 – Triad Energy Corp. v. McNell  110 F.R.D. 382 (S.D.N.Y. 1986),  Fed. Rules Civ. Proc., Rule 60(b)(4), 28 U.S.C.A.,U.S.C.A. Klugh v. U.S., 620 F.Supp. 892 (D.S.C. 1985),  State v. Blankenship  675 N.E. 2d 1303, (Ohio App. 9 Dist. 1996), Graff v. Kelly, 814 P.2d 489 (Okl. 1991), Capital Federal Savings Bank v. Bewley, 795 P.2d 1051 (Okl. 1990), Com. V. Miller,  150 A.2d 585 (Pa. Super. 1959). and Reider v. Sonotone Corp. 422 US 330, (1979), all discussed and relied upon infra.

          3. Notwithstanding the fact that the record made in the underlying case construes in harmony with 12 Okl. St. § 93 (4), defense of laches cannot be raised where the judgment is facially void. Void judgment is one entered by court without jurisdiction to enter such judgment,  State v. Blankenship  675 N.E. 2d 1303, (Ohio App. 9 Dist. 1996). Void judgment, such as may be vacated at any time is one whose invalidity appears on face of judgment roll, Graff v. Kelly, 814 P.2d 489 (Okl. 1991). A void judgment is one that is void on face of judgment roll, Capital Federal Savings Bank v. Bewley, 795 P.2d 1051 (Okl. 1990). Where condition of bail bond was that defendant would appear at present term of court, judgment forfeiting bond for defendant’s bail to appear at subsequent term was a void judgment within rule that laches does not run against a void judgment  Com. V. Miller,  150 A.2d 585 (Pa. Super. 1959).

          4. CAUSE OF ACTION: GOETZ AND COMPANY INC. is trespassing on property to which the Brighters hold right, titile, and interest to described as “Lots THIRTEEN (13) and FOURTEEN (14) in Block FIFTY FOUR (54) in SHIELD’S SOUTH OKLAHOMA CITY ADDITION to Oklahoma City, Oklahoma County, Oklahoma as shown by the recorded plat thereof.” A copy of the Brighters’ deeds is attached. The putative judgment of FIRST ENTERPRISE BANK giving rise to the chain of title ending with GOETZ AND COMPANY, INC.,  occulting the Brighters’ property, is void on its face: (1) Even in a default judgment, plaintiff must prove case by submission of evidence through a competent witness. The record made in CJ-0000 reveals no evidence construing in harmony with Local Rule 7.1(h) of the United States District Court for the  Western District of Oklahoma, Oklahoma Title 12, Chapter 12, Rule 13, or the common law authority of American Red Cross v. Community Blood Center of the Ozarks, 257 F.3d 859 (8th Cir. 07/25/2001). (2) The court in the underlying action wanted subject matter jurisdiction to rule favorably for debt collector in the action Delmer W. Porter. Mr. Porter failed or refused to inform the Brighters of their due process rights under the Fair Debt Collections Practices Act. See Reider v. Sonotone Corp. 422 US 330, (1979). When the Brighters were deprived of due process rights, the court was deprived of subject matter jurisdiction. For examples see: “Void judgment is one where court lacked personal or subject matter jurisdiction or entry of order violated due process,” U.S.C.A. Const. Amend. 5 – Triad Energy Corp. v. McNell  110 F.R.D. 382 (S.D.N.Y. 1986) and  “Judgment is a void judgment if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process,” Fed. Rules Civ. Proc., Rule 60(b)(4), 28 U.S.C.A.; U.S.C.A. Const. Amend. 5 – Klugh v. U.S., 620 F.Supp. 892 (D.S.C. 1985).

          5. The amount in controversy exceeds ten-thousand dollars ($10,000.00).

REMEDY SOUGHT

          6. A jury’s determination that GOETZ AND COMPANY INCORPORATED’s claim of title to the Brighter property is void justly requires ending trespass to the Brighters’ property described supra, removing all instruments occulting the Brighters’ title, compensating the Brighters for the fair market value of rents for the time of trespass, compensating the Brighters for damages to the property other than normal wear and tear, and compensating the Brighters for the costs in bringing this action.

 

JURY TRIAL DEMANDED

Back to Top

OVERVIEW OF THE FAIR DEBT COLLECTIONS PRACTICES ACT

Note and contract law

The Act does not apply to the original makers of a loan. The Act applies to third party debt collectors. Third party debt collectors includes lawyers and law firms who are attempting to collect any alleged debt including mortgage foreclosures. When a third party debt collector contacts an alleged debtor, the collector must in the first communication or within five (5) days thereafter furnish the alleged debtor with a “dunning letter.” The dunning letter must inform the alleged debtor that the collector is attempting to collect a debt and inform the alleged debtor that they have thirty (30) days to dispute the debt. The alleged debtor has thirty (30) days to dispute the debt requiring the collectors to furnish validation of the debt. Validation of the debt can either be a signed judgment order or a statement made under penalty of perjury by an officer of the original maker of the debt. Failure to notice the alleged  debtor of their due process rights subjects the collector to suit for violation of the Act and any action to collect without informing the alleged debtor of their due process rights or failure to cease collection activity until timely validation subjects the collector to suit for damages under the Act and voids any legal proceedings including mortgage foreclosures.  The Act also allows damages when the collector makes false statements regarding the character or amount of the alleged debt. An aggrieved party has one year from the violation of the Act to sue or one year from the taking of property by the collector. An aggrieved party under the Act is entitled to one thousand dollars ($1,000.00) in statutory damages plus unlimited damages for intentional infliction of emotional anguish. In addition, without time limitation, judgments including judgments which have been collected and mortgage foreclosures are void by reason of deprivation of due process rights deprives the court of subject matter jurisdiction. It is possible to recover full damages under both strategies or double recovery.

Workbook Assignment: Research the Fair Debt Collections Practices act in the annotated.

Commentary: Some Patriots have been lured into the argument: “They never loaned me anything!” in examination of mortgages. This argument is based on the incomplete observation that a promissory note is “given” to the bank or mortgage company, then the mortgage company allegedly creates money and therefore has gotten something for nothing. OH YEAH?  What happens when a check written on the allegedly created money account is presented to the bank for payment? The bank must reduce its inventory of FRNS by enough to redeem the check – so the bank didn’t get something for nothing after all. Proponents of this false theory maintain that the banks are still stealing because they get to buy money from the Federal Reserve System at the cost of printing the money. OH YEAH? Your investigation will show that member banks borrow FRNS from the Federal Reserve System at the “discount rate.”  There is a problem with our banking system but the argument that the bank or mortgage company never loaned you anything, stole your property, and fat cats like some Rockefellers are getting’ richer is erroneous! My theory: to some extent, and perhaps to a great extent, banks are operating ultra vires, and whether a result of poor management or greed, are forwarding the originally notes to the Federal Reserve to collateralize loans. While only a theory, this reasoning provides opportunity for what we are really after – REMEDY!

TO COMPLETE FORECLOSURE, IS THE ORIGINAL NOTE REQUIRED?

YOU BE THE JUDGE

          Where the complaining party can not prove the existence of the note, then there is no note. To recover on a promissory note, the plaintiff must prove: (1) the existence of the note in question; (2) that the party sued signed the note; (3) that the plaintiff is the owner or holder of the note; and (4) that a certain balance is due and owing on the note.  See In Re: SMS Financial LLc. v. Abco Homes, Inc. No.98-50117 February 18, 1999 (5th Circuit Court of Appeals.) Volume 29 of the New Jersey Practice Series, Chapter 10 Section 123, page 566, emphatically states, “...; and no part payments should be made on the bond or note unless the person to whom payment is made is able to produce the bond or note and the part payments are endorsed thereon. It would seem that the mortgagor would normally have a Common law right to demand production or surrender of the bond or note and mortgage, as the case may be. See Restatement, Contracts S 170(3), (4) (1932); C.J.S. Mortgages S 469  in Carnegie Bank v Shalleck 256 N.J. Super 23 (App. Div  1992), the Appellate Division held, “When the underlying mortgage is evidenced by an instrument meeting the criteria for negotiability set forth in N.J.S. 12A:3-104, the holder of the instrument shall be afforded all the rights and protections provided a holder in due course pursuant to N.J.S. 12A:3-302" Since no one is able to produce the “instrument” there is no competent evidence before the Court that any party is the holder of the alleged note or the true holder in due course. New Jersey common law dictates that the plaintiff prove the existence of the alleged note in question, prove that the party sued signed the alleged note, prove that the plaintiff is the owner and holder of the alleged note, and prove that certain balance is due and owing on any alleged note.  Federal Circuit Courts have ruled that the only way to prove the perfection of any security is by actual possession of the security. See Matter of Staff Mortg. & Inv. Corp., 550 F.2d 1228 (9th Cir 1977),  “Under the Uniform Commercial Code, the only notice sufficient to inform all interested parties that a security interest in instruments has been perfected is actual possession by the secured party, his agent or bailee. Bankruptcy Courts have followed the Uniform Commercial Code.In Re Investors & Lenders, Ltd. 165 B.R. 389 (Bkrtcy.D.N.J.1994), “Under the New Jersey Uniform Commercial Code (NJUCC), promissory note is “instrument,” security interest in which must be perfected by possession ...” Unequivocally the Court’s rule is that in order to prove the “instrument”, possession is mandatory.

ARE ALL CONTRACTS ASSIGNABLE? WHAT ABOUT CONTRACTS THAT “DIE WITH THE INDIVIDUAL” OR GO TO A QUESTION OF THE CREDIT OF THE PARTIES? YOU BE THE JUDGE.

“As a general rule, all contracts are assignable . . . . An exception to this rule is that a contract that relies on the personal trust, confidence, skill, character or {credit} of the parties, may not be assigned without the consent of the parties.” See Crim Truck & Tractor Co. v. Navistar Int’l 823 S.W.2d 591, 596 (Tex. 1992). See also Southern Community Gas Co. v. Houston Natural Gas Corp., 197 S.W. 2d 488, 489-90 (Tex.Civ.App. – San Antonio 1946, writ ref’d n.r.e.), and Moore v. Mohon, 514 S.W. 2d 508, 513 (TexCiv. App. – Waco 1974, no writ). Most rights under contracts are assignable. 2 R.C.L. 598. The exception is where rights are coupled with liabilities, with contracts for personal services or with contracts involving personal confidence. Fire insurance contracts are within the class last mentioned, and are held not to be assignable because of the confidence reposed by the insurer in the owner of the property. Thus, the owner may not sell the property and transfer the policy to the purchaser along with the title; for the insurer has not agreed to insure the property in the hands of the purchaser nor to assume the hazard involved in his ownership and possession. On the other hand, an assignment, not of the policy itself with its obligations, but of the owner's rights thereunder by way of pledge or otherwise as security for a debt, is held valid, in the absence of express restriction to the contrary; and the reason for this distinction is that such pledge or assignment does not affect the personal relationship, i.e., the ownership of the property by the insured, upon the faith of which the policy has been issued. Cooley's Briefs on Insurance (2d Ed.) vol. 2, pp. 1768, 1769; Ellis v. Kreutzinger, 27 Mo. 311, 72 Am.Dec. 270; True v. Manhattan Fire Ins. Co. (C.C.) 26 F. 83; Stokes v. Liverpool & London & Globe Ins. Co., 130 S.C. 521, 126 S.E. 649. Such rights could only have arisen in Deutsche from a direct guaranty made by the Mauricios to Deutsche, or by assignment from someone to whom a guaranty had been made that was legally assignable. There is no claim of a direct guaranty to Deutsche, so any rights it had could only have arisen from a legally valid assignment by Centron or Security Marine of the Mauricios' guaranties to them. The district court concluded that such rights had been validly assigned. We disagree. Under Maryland law, neither of the assignments made by Centron to Deutsche in respect of Chesapeake's indebtednesses was effective to assign any guaranty rights against the Mauricios respecting the note secured by the fifty-foot yacht. Whether a particular assignment is effective to assign a guaranty respecting a particular debt depends on two things: (1) whether the assignment in terms covers the guaranty, and (2) whether the guaranty is a legally assignable one. Deutsche relies on two assignments as the source of its right to recover from the Mauricios as guarantors of the note securing the fifty-foot yacht: (1) Centron's July 31, 1990 assignment to Deutsche and (2) Centron's October 1, 1990 assignment to Deutsche simultaneously with Security Marine's assignment to Centron, of their respective "rights, titles, and interests" in Chesapeake's indebtednesses. Looking first to Centron's July 31, 1990 assignment, we conclude that, even if it could be interpreted as intended to include the Mauricio guaranty to Centron, the guaranty was not legally assignable. While, as indicated in Part II.A., an assignment of debt carries with it an assignment of any guaranty of that debt, this does not mean that a guaranty may be assigned independently of any underlying debt. The general rule is, in fact, to the contrary where the guaranty is "special," i.e., made only to particular potential lender or lenders. As expressed in black-letter form: If a guaranty covers future credit which is to be extended by a specific individual, it may not be transferred to another person so as to enable him to become the creditor who is secured by the guaranty. 38 Am. Jur. 2d Guaranty § 35. The Centron guaranty is such an instrument. It specifies that it is made "to induce . . . Centron Financial Services, Inc. to make loans and in consideration of loans heretofore and hereafter made by [Centron] to Chesapeake." JA 36. Further, it promises "prompt and punctual payment . . . of any and all present and future indebtedness . . . of [Chesapeake] to you," i.e. Centron. Id. (emphasis added). The guaranty does contemplate that once Centron extended credit to Chesapeake, Centron might assign the debt, for the guaranty was for payment to Centron, "its successors and assigns." Id. The guaranty nowhere includes, however, a promise to pay debts arising between Chesapeake and anyone other than Centron. Under the general rule, therefore, the Centron guaranty, covering only credit extended by Centron, could not be assigned by Centron so as to enable Deutsche to become a creditor secured by the guaranty. We are satisfied that Maryland courts would so hold, though on a basis more explanatory of the actual reason for non-assignability of guaranties independently of consummated debt. Maryland law properly treats guaranties of future debt as simply a species of "continuing" or "standing" offers to make a series of individual, unilateral contracts. See Weil v. Free State Oil Co., 200 Md. 62, 87 A.2d 826, 830 (Md. 1956). Under general contract law principles, such offers are accepted by the extension of credit by the offeree. See id. ("to be accepted from time to time by [credit extension]"). See generally Restatement (Second) of Contracts § 31, cmt. b (1981) ("continuing guaranty" constitutes a "standard example of a divisible offer to make a series of contracts"). And, until such a continuing offer is accepted, it remains only an offer of contract which, as with contract offers in general, is not assignable. See Routzahn v. Cromer, 220 Md. 65, 150 A.2d 912, 915 (Md. 1959) ("an offer made to one person cannot be accepted by another"); Restatement (Second) of Contracts § 52 ("an offer can be accepted only by a person whom it invites to furnish consideration"); 38 Am. Jur. 2d Guaranty § 35 ("offer of guaranty is, in and of itself, not assignable").

          A note void in the hands of the payee, because obtained by him of the maker by fraud, is collectible in the hands of a subsequent bona fide holder who has taken it before maturity for value; but if such holder has paid on such transfer a less sum than the amount of the note, he can only recover the amount which he, or some prior holder through whom he derives title, has paid for it. HOLCOMB v. WYCKOFF. 1870 WL 5231 (N.J. Sup.).

PHONE  SCRIPTS  TO  USE  WITH  THIRD  PARTY  COLLECTORS

Commentary on the morality of debt: We believe that if we owe, we should repay. The fallacy is that we rarely owe when a collector calls. The following phone scripts are not mean spirited when we realize that the caller is trying to get us to pay money that we don’t owe!

In spite of caller ID or other screening, if a collector calls you,

Thank you for calling. May I have your full name please? Thank you. Please spell your full name for me. Now, (their name) what is your social security number? (after listening to their protest say) I just need to have your identity so I will be suing the correct person if you violate my rights under the fair debt collections practices act.

          - or -

Thank you for calling. Do I have a contract with your company? (They’ll tell you they’re call regarding your xyz bill). That’s not my question. Do I have a contract with your company? Don’t ever call me again.

          - or -

Thank you for calling. I was not expecting your call and I’ll need a while to look up some helpful information. Would you please hold? (Don’t wait for their answer. put the phone down and walk away).

 Early letter to collector

Your Name                                                     (print certified mail number here)

Your address

City, state, zip code

 

 

 

the name of the person who sent you the collection letter

their address

city, state, zip

 

 

 

Sir or Madam:

 

You are in receipt of notice under the authority of The Fair Debt Collections Practices Act.  Contacting me again regarding your file #XXXXXXXXXXX #OOOOOOO 000000 RMS008 after the verifiable receipt of this notice establishes that you, (their name), have used interstate communications in a scheme of fraud by using threat, intimidation, deception, and enticement to coerce a person to commit some act creating a legal disability where none exists.

 

Disputing the “debt”

 

 

 

 

 

Your name

 

 

 

month day year

 

 

Copies to:

          Consumer Response Center

          Federal Trade Commission

          Washington, D.C. 20580

 

 

Jim R. Fair      Sharon C. Fair

7605 N. W. 25th Terrace

Anytowne, Oklahoma 73000

405-789-0000

 Late letter to collector

MIDFIRST BANK, N.A.

ATTN: Dewey, Cheatum,  & Howe

6613 N. Meridian

Ash Shoals, Oklahoma 73123

(405) 720-0000

March 12, 2002

Re      MIDFIRST BANK, N.A. ; Account NoOODISC22398

Hello (signature is unintelligible),

This is a request for validation.  Please be advised that I am not refusing to pay, but I need the information requested in this correspondence before I can make any offer to settle this account.  I would like to settle it as soon as possible and I may have a counter claim to set-off the disputed balance, this is why I am sending you these questions.  Please answer the following questions relating to the disputed account and return them to me within thirty (30) days.  If you need more time, or if you need any question restated, please make your request to me  in writing.

1.  Please state your name, occupation and mailing address.

2.  Identify the source of the funds in the account that is the subject matter of this “judgment.”

3.  Produce all records, reports, memoranda relating to the source of funds relating this disputed account and list all other sources of information such as computer file names and names of databases or locations at which related information is located or accessible.

4.  What was the account number of the account in which the funds were held prior to the opening of the account that is the subject matter of this lawsuit?

5.  Who was the owner of each account or, list those individuals having signature rights to each account?

6.  Identify the account that was debited when the disputed account was created.

7.  Who was the owner of each account or, list those individuals having signature rights to each account?

8.  Identify the source of the funds that created the disputed account.

9.  Did the funds for the disputed account originate from another account or lending institution?

10.  List the names and addresses of all lending institutions from which any funds were purportedly originated.

11.  Please identify the account number from which the funds originated in order to create the disputed account.

12.  Admit that no other account was debited when the disputed account was created.

13.  If you denied that no other account was debited when the disputed account was opened or created, please identify the account that was debited by account number and the name or names of the debited account's signer, holder and/or owner, and explain how the funds for this account were originated.

14.  If you denied that no other account was debited when the disputed account was opened or created, state the total balance of this debited account at the time the debit was made and, list the names of the signers on the account and the date that the account was opened along with the opening balance.

15.  Admit that the defendant was the depositor for the account that is the subject matter of this lawsuit.

16.  Please produce all documents and information, related in any way, to your implication or allegation that a loan was given to the defendant.

17.  Which employee of the bank authorized the transaction?

18.  If any loan origination system, software or other procedures were used in the opening of the disputed account, please identify the system by name and describe how it works.

19.  According to the alleged loan agreement, was the purported lender or financial institution involved in the alleged loan to use their money as adequate consideration to purchase the promissory note from the alleged borrower?  YES or NO.

20.  According to the bookkeeping entries, did the purported lender or financial institution involved in the alleged loan use their money as adequate consideration to purchase the promissory note from the alleged borrower?  YES or NO.

21.  According to the alleged loan agreement, was the purported lender or financial institution involved in the alleged loan to accept anything of value from the alleged borrower that would be used to fund a check or similar instrument in approximately the amount of the alleged loan?  YES or NO.

22.  According to the bookkeeping entries, did the purported lender or financial institution involved in the alleged loan accept anything of value from the alleged borrower that would be used to fund a check or similar instrument in approximately the amount of the alleged loan?  YES or NO.

23.  Was the intent of the purported loan agreement that the party that funded the loan should be repaid the money lent?  YES or NO.

24.  Did the purported lender involved in the alleged loan follow Generally Accepted Accounting Principles, GAAP?  YES or NO.

25.  Were all material facts disclosed in the written agreement?  YES or NO.

26.  What is the name and address of any bank auditor or certified public accountant involved with or having any relation to the accounting function regarding the disputed account?

27.     Identify the name of the records or system of accounting records or ledgers reflecting the transaction for the disputed account.

28.  Were any loan numbers assigned to the disputed account?

29.  If you answered yes to the above question, please list those account numbers.

30.  Explain how each account was created or originated.

31.  Explain how the funds for each account were deposited and where they originated.

32.  Was an account created with the purported loan amount then debited to fund the disputed account?

33.  Please explain your answer to the above question.

34.  Please produce all records and tangible evidence relating to the questions herein and send them along with your response.

Best regards,

Sharon C. Fair Jim R. Fair

 

Sample of suit for damages under the Act

IN THE UNITED STATES DISTRICT COURT

                      FOR THE NORTHERN DISTRICT OF OKLAHOMA 


Robert S. Wise                            )

                                                )

          Plaintiff,                            )

                                                )

          v.                                    )        Number ________________

                                                )

William C. Killjoy                           )

                                                )

          Defendant.                        )

 


VERIFIED PETITION IN THE NATURE OF A PETITION FOR REDRESS OF INJURIES UNDER AUTHORITY OF THE FAIR DEBT COLLECTIONS PRACTICES ACT, FOR VIOLATIONS UNDER 15 U.S.C. 1601 ET SEQ.


          1. Robert S. Wise an aggrieved party, petitions this Court under authority of 15 USC 1601 et seq. hereinafter “the act.”

          2. FIRST CAUSE OF ACTION: William S. Killjoy engaged in collection activity about May 23, 2002 without prior advising Robert S. Wise of Mr. Wise’ due process rights expressly reserved at 15 USC 1692(g).

          3. SECOND CAUSE OF ACTION: Beginning about May 23, 2002, William C. Killjoy began a pattern of  violating 15 USC 1692(e) my making false and misleading representations in connection with the collection of an alleged debt.

          4. THIRD CAUSE OF ACTION: Beginning about May 23, 2002, William C. Killjoy violated 15 USC 1692(f) by threatening to interfere with the business interests of Robert S. Wise where no present right to possession of the property existed as collateral through an enforceable security interest.

          5. William C. Killjoy is a debt collector. See 15 USC 1692a(6).  See also George w. Heintz, et al, v Darlene Jenkins, 514 u.s. 291, 115 S.Ct. 1489 (1995).

                   6. Robert S. Wise is lawfully entitled to statutory damages against William C. Killjoy up to a maximum of one thousand dollars ($1,000.00). See 15 USC 1692(a)(k).  In addition to statutory damages, Robert S. Wise is lawfully entitled to unlimited damages for emotional distress, embarrassment, and humiliation caused by William C. Killjoy as a jury should decide. See 15 USC 1692k(a)(1).

REMEDY SOUGHT

          7. Determination by this court, that Oklahoma state law, consistent with the act, affords Robert S. Wise greater protection and relief than the act justly requires the court’s instruction so to the jury. 

          8. A jury’s determination that  William C. Killjoy has violated consumer law justly requires this court’s order to William C. Killjoy to compensate Robert S. Wise for statutory damages not exceeding $1,000.00 plus the costs of bringing this action.  A jury’s determination that William C. Killjoy subjected Robert S. Wise to life threatening emotional stress with a false claim that Robert S. Wise could be compelled to pay $523,452.00 justly requires a jury’s decision as to whether William C. Killjoy should be compelled to pay Robert S. Wise $523,452.00 as a means to amend William C. Killjoy’s bad behavior..

JURY TRIAL DEMANDED

I, Robert S. wise, verify under penalty of perjury that the factual averments in the above and forgoing are true to the best of my knowledge.

___________________________

                                                                             Robert S. Wise

STATE OF OKLAHOMA                               INDIVIDUAL ACKNOWLEDGMENT  

COUNTY OF TULSA                                   Oklahoma Form

          Before me, the undersigned, a Notary Public in and for said County and State on this ____ day of ________, 2002, personally appeared __________________________ to me known to be the identical person who executed the within and foregoing instrument and acknowledged to me that he executed the same as his free and voluntary act.

          Given under my hand and seal the day and year last above written.

My commission expires __________

                                                ________________ Notary Public

Robert S. Wise

P.O. Box 12345

Tulsa, Oklahoma 74000

 

 

Back to Top

Is your lawsuit really frivolous?

 

When we have an injury, do we really need to patronize the bar association? If we file our own suit, what are the circumstances where we can be ruled to have filed frivolously? What is frivolous anyway? Frivolous – A pleading is “frivolous” when it is clearly insufficient on its face, and does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or to embarrass the opponent. A claim or defense is frivolous if a proponent can present no rational argument based upon the evidence or law in support of that claim or defense. Liebowitz v. Aimexco Inc., 701 P.2d 140 (Colo.App. 03/28/1985). A claim or defense is frivolous if the proponent can present no rational argument based on the evidence or law in support of that claim or defense Western United Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo. 1984); Mission Denver Co. v. Pierson, 674 P.2d 363 (Colo. 1984); International Technical Instruments, Inc. v. Engineering Measurements Co., 678 P.2d 558 (Colo. App. 1983). A complaint signed under penalty of perjury is not frivolous, McCormick v. Peterson  CV93-2157, USDC, EDNY 1993.

 

| http://mortgage-home-loan-bank-fraud.com | Articles | Foreclosure Help | Legal Disclaimer |

| Case Law | Legal Resources| Resources | Privacy Policy |

| Site Map | About Us | Contact Us |