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Ohio Foreclosure Stopped by “Real Party in Interest” Objection

02 Apr

Here’s an A.D. 2008 Ohio case that offers an almost spectacular degree of insight into Federal Rule of Civil Procedure 17(a), the concept of standing, and why many of the mortgages in this country can’t be legally foreclosed. As usual, my comments are [bold, bracketed blue]. “You can follow the links to a pristine copy of the case.)


Wells Fargo Bank, N.A. v. Byrd (Ohio 2008)

Ohio Supreme Court, First District Court of Appeals (September 12, 2008)

Docket number: C-070889; C-070890
2008-Ohio-4603


Permanent Link: http://vlex.com/vid/wells-fargo-bank-n-v-byrd-42545339
Id. vLex: VLEX-42545339

Summary:

PROCEDURES/RULES: The trial court properly dismissed a foreclosure complaint that was not filed by the real party in interest: At the time the complaint was filed, the plaintiff did not own the mortgage that was the basis for the suit, and its acquisition of the mortgage by assignment after the suit had been was commenced did not, standing alone, cure the initial jurisdictional defect; but the dismissal should have been entered without prejudice. The trial court lacked the authority to sanction the plaintiff’s law firm by requiring it, in any future foreclosure action, to present additional documentation to demonstrate that it would, in fact, be representing a real party in interest

Text:

[Cite as Wells Fargo Bank, N.A. v. Byrd, 2008-Ohio-4603.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

WELLS FARGO BANK, NATIONAL :

APPEAL NOS. C-070889 ASSOCIATION, ON BEHALF OF THE

C-070890 CERTIFICATE HOLDERS OF :

TRIAL NO. A-0700643 MORGAN STANLEY ABS CAPITAL, IN

TRUST 2005-WMC5 MORTGAGE :

O P I N I O N.

PASS-THROUGH CERTIFICATES,

SERIES 2005 C/O COUNTRYWIDE :

HOME LOANS,

Plaintiff-Appellant,

and

THE LAW OFFICES OF JOHN D.

CLUNK CO., LPA, :

Appellant, :

vs. :

GLORIA BYRD :

and :

ELLSWORTH BYRD, :

Defendants-Appellees, :

and :

AUDITOR OF HAMILTON COUNTY :

and :

TREASURER OF HAMILTON :

COUNTY,

Defendants. :

Civil Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is: Affirmed in Part as Modified in Part and Reversed in Part

Date of Judgment Entry on Appeal: September 12, 2008

The Law Offices of John D. Clunk, Jason A. Whitacre, Michael L. Wiery, and Laura C. Landor, for Appellants, Legal Aid Society of Southwest Ohio, Noel M. Morgan, and Elizabeth Tull, for Appellees.

We have removed this case from the accelerated calendar.

DINKELACKER, Judge.

[DINKELACKER, DINKELACKER! SISS, BOOM, BAH!

DINKELACKER, DINKELACKER! RAH, RAH, RAH!

(Sorry—I just couldn’t resist.)]

Since plaintiff-appellant Wells Fargo was not a real party in interest at the time it filed suit in this foreclosure action, the trial court properly dismissed the case. But the dismissal should have been without prejudice. Further, the trial court lacked authority to sanction counsel by requiring counsel to adhere to additional pleading requirements in future cases.

Putting the Cart Before the House

On January 23, 2007, Wells Fargo filed a foreclosure action against defendants-appellees Gloria and Ellsworth Byrd. Wells Fargo claimed that it was “the holder and owner of a certain promissory note” and “the owner and holder of a certain mortgage deed, securing the payment of said note.” But both the note and the mortgage identified in the complaint named WMC Mortgage Corp. as the lender.

[First, notice that the mortgage is a security for the Note. This implies that the “real party in interest” might be required to “hold and own” both the Note and the Mortgage. After the case was filed, Wells Fargo claimed to have obtained both the Note and the Mortgage, but I’m doubtful whether this was ever proven. Apparently, a plaintiff might have to “acquire,” “hold” and “own” not only the Mortgage, but also the Note the Mortgage was intended to secure, before that plaintiff could truly claim to be the “real party in interest”.

In this case, Wells Fargo claimed to hold and own the note and mortgage, but the actual note and mortgage named WMC Mortgage as the true owner of the note and mortgage. This is the crux of the entire case. Wells Fargo tried to foreclose on the Byrd’s home based on a mortgage that does not have Wells Fargo’s name on it. Because Wells Fargo’s name is not on the mortgage and there was no other evidence that the mortgage had been assigned to Wells Fargo at the time when the foreclosure suit was filed, Wells Fargo was not a “real party in interest” in the property, had no “standing” to foreclose and the foreclosure was therefore dismissed.]

Wells Fargo filed a motion seeking summary judgment. Attached to the motion for summary judgment was an “Assignment of Note and Mortgage” that acknowledged that WMC had sold, assigned, transferred, and set over the mortgage deed and promissory note to Wells Fargo.

[The list “sold, assigned, transferred” and “set over” suggests that an assignment that did not do all four (and there could be more) of those acts might be legally incomplete.

That, in turn, suggests the possibility that the original owner/holder of the complete mortgage deed might have “sold” mortgage “derivatives” such as one “security” for the “sale” of the mortgage deed, another for the “assignment” of the mortgage deed, a third for the mortgage deed “transfer” and a fourth for a mortgage deed “set off”. Alternatively, the original owner/holder of the mortgage deed might’ve sold purported “mortgage deeds” that only “sold and assigned” or only “transferred and set over” the mortgage deeds.

If all four steps (sale, assignment, transfer and “set over”) are required to lawfully move a mortgage deed from the original party in interest to a new party in interest, then by dividing those four steps among two or more instruments, then two or more “partial” “mortgage deeds” might be created—and sold.

The central idea is that one “real party in interest” cannot create a second “real party in interest” without a legitimate assignment of ALL Right, Title and Interest in a particular property—and must probably achieve that assignment by a very exacting (common law?) procedure. If any element of right, title or interest is not conveyed, you might not have created a new “real” party in interest.

On the other hand, I don’t doubt that it’s legally possible to arbitrarily divide the rights, titles or interests to a particular property and assign some of those rights, title or interests and others to someone else and even retain a few for yourself. If that weren’t so, there’d be no legal foundations for trusts (which are based on dividing perfect title into a legal title for the trustee and an equitable title for the beneficiary).

Therefore, it’s undoubtedly lawful for one entity that “really” holds all or even some of the rights, titles and interests to a particular property to assign some of whatever he owns and/or holds to some second party. And when anyone comes to own even part of the rights, titles and interests to a particular property, I suppose that such person can be described as “a party in interest”. I.e., he has some interest in the particular property.

But I am increasingly suspicious that while there may be several “parties in interest” who own and/or hold several different “interests,” there can be only one “real party in interest”—the man who owns and holds ALL rights, titles and interests to the particular property.

If that suspicion could be proved valid, then NO ONE could probably initiate suit as the “real party in interest” unless the person held all “rights, titles and interests” in a particular property.

Alternatively, perhaps even “real party in interest” does not reflect perfect title to a property. Does “real party in interest” implicate owning all the rights and titles (as well as interests) in a particular property? Or does the “real party in interest” hold only the primary “interests” in the property? I suspect that the “real party in interest” may be nothing more than the beneficiary who owns and holds the pure equitable title to a property. It may be that the phrase “real party in interest” is synonymous with “beneficiary” in a trust relationship.

If so, the “real party in interest” may own/hold equitable title to the property, but who holds the LEGAL title? Gov-co? The Federal Reserve System?

This makes some sense since most courts appear to be acting in equity. Equity is invoked by beneficiaries. Equity exists where legal title does not. Where the legal title is invoked, the case should go to law.

If so, then an individual who truly held “all rights, titles and interests” to a particular property would not only have a superior claim to that of a mere “real party in interest,” but would have a claim that would have to be decided at law rather than in equity.

One other point: The words in the phrase “all right, title and interest” (in a particular property) are singular; the words in the phrase “all rights, titles and interests” are plural; the words in the phrse “all rights, title and interests” are mixed—some plural, some singular. Which phrase is correct? Which is mistaken?

The singular (“all right, title and interest”) implies a unification of each of the subsets (“rights,” “titles” and “interests”) under a single complete heading. That sounds pretty powerful, but I’m not sure that it’s true. For example, to claim “all title” to a particular property implicitly asserts ownership of the one perfect title to the property, but also implicitly denies that existence of the legal and equitable “sub-titles” to that property.

On the other hand, if you claimed “all rights, titles and interests” in a particular property, you would be recognizing several rights, several titles and several interests and alleging that you held them all as a kind of “royal straight flush”. That might be a stronger claim (if you could prove it) than merely claiming to hold “all right, title and interest” (singular).

The “plural” claim is a little ambiguous in that claiming to own/hold all “rights, titles, and interests” is not time-specific. Yes, you might hold all rights, titles and interests today—but you clearly didn’t hold all of those same rights, titles and interests as they existed 100 years ago. This “issue” (if it even deserves to be considered a legitimate “issue”) is largely semantic.

Still, I suspect that the strongest statement might be a claim to “own and hold all current rights, titles and interests”—that would pretty clearly asset one’s total ownership of a particular property. In theory, such claim would implicate a court of law, but where can we find one? More likely, if you are claiming ALL rights, titles and interests in a particular property, you are claiming them “in rem” and the place to so is IN ADMIRALTY. Schedule an admiralty hearing; send notice to any person known to claim any right/title/interest in a particular piece of property; place a public notice in the newspaper for several weeks/months prior to the hearing to invite all who claim any right, title or interest in a particular property to appear at that hearing to give evidence for their claims. Then have the hearing and if you did it exactly right, you might be able to compel the admiralty court to declare “in rem” (against the whole world) that you “own and hold all current rights, titles and interests” to the particular property.

Politically speaking, the Admiralty court would be very reluctant to declare that any of us held “all rights, titles and interests” to a particular property. Such would constitute a declaration of allodial title and probably earn the judge an opportunity to resign his job or be shot. Still, if you could dot all your “i’s” and cross all your “t’s,” you might be able to get an Admiralty court to concede you hold perfect title—largely because gov-co would be unlikely to appear on the record to claim they hold legal title.]

The assignment was dated March 2, 2007–over a month after the complaint had been filed.

[Timing is the first issue. If the assignment had taken place before the case was filed, Wells Fargo’s motion for summary judgment might have been granted.

But even then, if Wells Fargo could only produce such assignment dated, say, one month before the foreclosure case was filed, the property owner could then demand to know by what right Wells Fargo had been collecting mortgage payments for the several previous years. Realistically, the “assignment” or rights would have to preclude the current plaintiff’s collection of mortgage payments. Without such assignment, the collection of mortgage payments would’ve been FRAUDULENT and the current property holder/mortgagee could demand either tha all previous payment be returned to the mortgagee or that they be disgorged to the “real party in interest” who held rights to those payment until that right was assigned to the new plaintiff.

Thus, once the question of “assignment” comes up, the existing plaintiff can be caught between a rock and a hard place. If the assignment was not prior to filing the foreclosure case, the foreclosure case must be dismissed. If the assignment was not prior to collecting the first mortgage payment, all of those payments might be disgorged to the original “real party in interest” or the mortgagee. More, that collection process may have been based on fraud. If the collection process had started over a year earlier, it could be grounds for a RICO suit.

The lawyers who initiated the current foreclosure on behalf of the purported (but false) “real party in interest” might be charged with perpetrating a “fraud on the court” and/or barratry.

Once you begin to discover who is “really” the “real party in interest,” all sorts of interesting information and liabilities might appear.

Another important point: even though Wells Fargo received a post-filing “assignment” of rights to foreclose, that “assignment” was not equivalent to the Rule 17(a) “ratification of commencement of action”. These two instruments (“assignment” and “ratification”) are merely different, they may be mutually exclusive. The “assignment” conveys the right to not only foreclose but also collect the mortgage payments. The post-filing “ratification of commencement” presumes that the party ratifying is the real party in interest. Once the rights have been assigned, the party first deemed to be “real party in interest” forfeits that status and can no longer “ratify the commencement of an action” by some other “real party in interest”.

On the other hand, once the existing plaintiff receives a “ratification of commencement” from the original, ”real party in interest,” the current plaintiff implicitly concedes that the proceeds from the existing lawsuit (and probably all previously collected mortgage payments plus interest) are due to the “real party in interest”.

This places the existing plaintiff in a seemingly untenable position. Once the plaintiff gets the “ratification of commencement” from the “real party in interest,” the plaintiff would not only lose the right to the property being foreclosed upon, but also lose whatever previous mortgage payments had been collected. The only thing the existing plaintiff might retain is the right to pay the attorney fees for prosecuting a foreclosure on behalf of the “real party in interest”. Heh, heh, heh.

The foreclosure defendant might even spice things up a bit by making a motion to the court to 1) decide if previously collected mortgage payments should go to the real party in interest or back to the mortgagor; 2) declare that title the foreclosed property should revert back to the “real party in interest” rather than the current plaintiff, etc..

If this analysis is roughly correct, once you can show that the plaintiff in a foreclosure is not the “real party in interest,” that plaintiff is skuh-rooood—and big time. The plaintiff will not only lose his ass by forfeiting his claim to all previously-collected mortgage payments and right to the property if it is foreclosed, he and his attorneys might even be subject to criminal prosecution for fraud.]

“The case was referred to a magistrate who entered summary judgment for Wells Fargo. The trial court sustained the Byrds’ subsequent objections to that decision. The trial court then took two additional steps not requested by the Byrds: (1) it dismissed the case with prejudice, and (2) it ordered the law firm representing Wells Fargo, appellant Law Offices of John D. Clunk Co., LPA, to submit “proof that their client is, in fact, a real party in interest at the time of the filing” of any future foreclosure complaints that the firm might file.”

[I’ll bet that the appellate court overturns the dismissal with prejudice and/or demand that the law firm show evidence of “real party in interest” in future cases based on the fact that the mortgagee did “not request” such actions.]

“Wells Fargo requested findings of fact and conclusions of law. In response, the trial court issued an entry titled “Findings of Fact, Conclusions of Law, and Amended Judgment Entry” in which it said that the dismissal was “not a dismissal on the merits.” The trial court explained the Clunk firm’s future obligations to the court by stating that “at the time of the filing of a foreclosure action, [the Clunk firm must] file documentation showing that their client is the real party in interest as of the date of the filing of the lawsuit.”

[Apparently, the court does not wish to be further defrauded or implicated in fraud committed by the law firm.]

“Both Wells Fargo and the Clunk firm have appealed. Wells Fargo argues that (1) the trial court erred in dismissing the case with prejudice on jurisdictional grounds [no real party in interest = no subject matter jurisdiction]; (2) the trial court erred in dismissing the case without notice; (3) the trial court should have adopted the decision of the magistrate granting its motion for summary judgment; (4) the trial court misapplied Civ.R. 17; (5) the trial court lacked authority to convert its original dismissal with prejudice to a dismissal without prejudice; and (6) the trial court improperly used its subsequent entry to modify the substance of its prior decision. [Falsified the record/docket.] The Clunk firm argues, in two assignments of error, that the trial court improperly sanctioned it.

“The Dismissal Issue: To Dismiss or Not

“There is little case-law guidance on the issue whether Wells Fargo, which was clearly not a real party in interest when the suit was filed, could later have cured the defect by producing an after-acquired interest in the litigation. We hold that the defect could not have been cured in that way.

Civ.R. 17(A) says that “[e]very action shall be prosecuted in the name of the real party in interest. * * * No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest. Such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.”

“A party lacks standing to invoke the jurisdiction of a court unless he has, in an individual or a representative capacity, some real interest in the subject matter of the action.1

[OK—the plaintiff need not hold “all” real interest in a property, but the plaintiff must hold “some” real interest.

This raises the question of which “real interest(s) does the particular plaintiff hold—and which “interests” does it not hold. Once the plaintiff admits that it doesn’t hold all interests, it’s claim to foreclosure or cash becomes clouded. Who/what hold the other “real interests”? Should thel the proceeds of the suit be divided among all such other holders of “some real interests”? By what ratio should those proceeds be divided? Can the foreclosure suit proceed without the involvement of ALL “real parties in interest”?

What happens if it turns out that the defendant (as the person who created the credit that was originally loaned or as one of the people of The State of Texas or as a citizen of “this state”) also held “some interest” in the property? If the defendant were shown to be one of the persons holding “some real interest” in the property in question (that was based on something other than the mortgage or note), could the suit continue against one “real party in interest” by another “real party in interest”?

Once the issue of “real party in interest” is raised, the issue can become extremely complex in a very short period of time.]

“The Eleventh Appellate District has held that “Civ.R. 17 is not applicable when the plaintiff is not the proper party to bring the case and, thus, does not have standing to do so. A person lacking any right or interest to protect may not invoke the jurisdiction of a court.”2

[Without knowing the context, the previous sentence is extremely (even suspiciously) ambiguous. I presume that the court means the plaintiff must have at least one right or interest to give the plaintiff standing to invoke the court’s jurisdiction. I.e., if the plaintiff has absolutely not one right or interest whatsoever, his suit must be dismissed for lack of subject matter jurisdiction.

But the court’s language could equally be interpreted to mean that if the plaintiff lacks just one of the several rights or interests, he might not be entitled to file the suit. I.e., suppose I owned just one share (interest) in a corporation but didn’t own the other 2 million shares. Do I have a right to sue to the corporation if I don’t own all (or at least a majority?) of the “interests” (shares) in the corporation?

Likewise, if I hold only some interest(s) in a property, can I sue for foreclosure without the express acquiescence of the other parties who hold other rights, titles or interests in that same property?

The idea of “standing” is a fascinating and complex subject that might be an “Achilles heel” for many modern lawsuits. Insofar as most property is entangled in a trust relationship, can any beneficiary truly sue without permission or assistance of the actual trustee? Yes, an attorney may occupy the role of the beneficiary’s fiduciary in a particular case, but who is the real trustee who holds real legal title to the property in question? Can a suit proceed on the mere say-so of a beneficiary against a third-party, non-fiduciary without the “ratification” of the true fiduciary?

For example, suppose the Federal Reserve System and/or Government of the United States held legal title to virtually all the land within The United States of America. Could some bank that lent credit on a parcel of land sue the borrower-beneficiary who held that land without some sort of permission from the “United States” or Federal Reserve? Is that permission found in the various statutes of the United States which authorize individuals to sue on behalf of the United States??]

“The court also noted that “Civ.R. 17(A) was not applicable unless the plaintiff had standing to invoke the jurisdiction of the court in the first place, either in an individual or representative capacity, with some real interest in the subject matter. Civ.R. 17 only applies if the action is commenced by one who is sui juris or the proper party to bring the action.”3

[I gotta read that case. Even if the plaintiff has standing, if he lacks “capacity” the case must be dismissed. Conversely, even if the plaintiff has “capacity” (and I’ll bet he usually does), if he lacks “standing” the case must apparently also be dismissed.

Two BIG questions for your adversary:

Q. What is your standing (interest) to bring this case?

Q. What is your capacity—individual or representative—to bring this case?]

“The Twelfth Appellate District agrees. In 2007, the court held that “[t]he `real party in interest is generally considered to be the person who can discharge the claim on which the suit is brought * * * [or] is the party who, by substantive law, possesses the right to be enforced.’ “4

[Say whuut? “Generally considered” sounds discretionary; this is not an absolute truth.

More, I have no idea what the court means by “discharge the claim”. If only the “real party in interest” can “discharge the claim” and the plaintiff made the claim, then if the plaintiff can’t “discharge the claim” then the plaintiff is not the “real party in interest”.

I understand the word “discharge” to suggest an ability to deal with a debt by means other than payment with lawful money. Thus, I “discharge” my debts with legal tender (Federal Reserve Notes) but I do not pay my debts with lawful money (gold or silver coin).

So, if someone makes a claim against me, I presume that I alone can “discharge” that debt. If I don’t “discharge” the debt by handing over some FRNs, the plaintiff will sue me as a defendant. Thus, I would expect that only a defendant can “discharge a claim”.

But in the previously reported text, the court ruled that that only the “real party in interest” (the presumed plaintiff in a particular case) has the power to “discharge the claim”.

Makes me laugh. The 12th Appellate Court has made a declaration that’s so contrary to common understanding, that I am not merely confused, I am delighted. When I get my hands on that case, the court might teach me something profound. I love it.

If “the ‘real party in interest’ is generally considered to be the person who can discharge the claim on which the suit is brought” and that “person” is not the nominal defendant, who could it be? Is “ADASK” rather than “Adask” the person who can discharge the claim—or is it vice versa? Is the suit brought in “Adask’s” name against “ADASK”?? Makes no sense.

Or is the “person” who can “discharge” virtually all claims for legal tender the Federal Reserve System? Whoever the “person who can discharge the claim” may be, so long as he/it is other than the purported defendant, we have another mystery that “makes my heart soar like an eagle”. Whoever the “person who can discharge claims” may be, he/it sounds generic and all-pervasive. He/it is the “real party in interest”—perhaps as the public trust, maybe as the implied charitable trust of “this state,” maybe as the Federal Reserve System if the property in question was paid for with Federal Reserve Notes, etc..

Ohh, goody, hmm? Another mystery—what fun!

But bear in mind that the court described two persons who were, or were “generally considered” to be, the “real party in interest”:

A person able to “discharge the claim” was “generally considered to be a “real party in interest”; and,

2) “the party who, by substantive law, possesses the right to be enforced.”

Note that Item #1 describes a “person” while Item #2 describes a “party”. I believe that “party” indicates someone who is part of a particular, private relationship. If so, the “person” in Item #1 may be an “inherent” “real party in interest,” without regard to some private relationship. Again, this suggests some generic and omnipresent in the character of the “person” able to “discharge the claim”.

Item #2 sounds as if it could describe the beneficiary of a private trust relationship (express or implied) wherein the defendant was deemed to be a fiduciary. I’m not sure what “by substantive law” means, but “possesses the right” at least sounds like it might implicate an equitable right of possession.

For me, the two descriptions suggest that the “real party in interest” is either 1) “generally considered” to be an unseen “mystery person” who has great, almost universal powers to “discharge claims”; or 2) a private party who has some private (probably equitable right) to make claim against the defendant.

For me, the problem is this: I understand the defendant to be the entity that’s supposed to “discharge” the plaintiff’s claim—so how could the “real party in interest” also be a person who can “discharge” the claim? I know this makes sense, but I do not yet see what that “sense” may be.

How can both the defendant and at least a potential plaintiff both be able to “discharge” the same claim?

I’ve been guessing that the “mystery person” able to discharge the claim might be the Gov-co or the Federal Reserve or some entity other than the purported defendant. But what if the court describes the same individual in both Items #1 and #2? What if the defendant “party” in Item #2 were to counter-claim against the plaintiff? Under the counter-claim does the defendant-party in Item #2 become the plaintiff-person “real party in interest” in Item #1??

But, assuming I counter-claimed as a separate and independent “person” (rather than as a defendant “party” to the original claim), how is it that I could “discharge” the original claim in some manner other than the “discharge” that I might effect as the defendant-party? Are there more than one kind of “discharge”? What advantage might exist for me to “discharge” the plaintiff’s claim as an Item #1 “person” rather than as an Item #2 “party-defendant”?

Is it possible that the man “Adask” can discharge as a “person” under Item #1 while the entity “ADASK” must discharge as a party and with legal tender?

Maybe, by counter-claiming and changing my status from that of defendant-party-fiduciary to plaintiff-person-beneficiary, I could add other counter-plaintiffs to the suit. One of the alternatives under Rule 17(a) is for the plaintiff to “join” or “substitute” the “real party in interest” into the suit. What if I counter-claimed and joined (or even substituted) the Federal Reserve System as co- or sole plaintiff in my counter-claim. This is a fantastic notion, but if it could be achieved, it’s obvious that the Fed could “discharge” any claim that came to court.

There is a fascinating mystery here. I doubt that I’ll resolve until I at least read the cases quoted and cited by the 12th Appellate Court.

But it crosses my mind that maybe, maybe the answer is more simple. Maybe the plaintiff is the only party who can “discharge” the claim. Maybe there’s no mysterious “person” in the background (besides the plaintiff) who can also discharge the debt. Maybe the plaintiff alone has the right and power to demand that the debt be either paid (with lawful money) or merely discharged with legal tender (FRNs).

In other words, maybe, maybe the plaintiff has the option to choose to demand payment or accept a mere discharge of a particular claim. IF that were true then, in theory, we’d each have the right to choose in all of our transactions whether we would 1) demand only gold and silver as payment for the debts we were owed; or 2) allow a mere “discharge” of debts due by means of legal tender (paper dollars).

This suggests that a “claim” should be paid but could be discharged and the plaintiff had the right/power to decide if he would give the insolvent defendant a “break” and allow him to discharge (rather than pay) his debt.

That’s all speculation, of course. I wouldn’t necessarily bet that the plaintiff has a power to demand payment but allow discharge of a claim. But these kinds of possibilities deserve consideration to sharpen our perception of the seemingly mysterious power to “discharge claims”. ]

“Unless a party has some real interest in the subject matter of the action, that party will lack standing to invoke the [subject matter] jurisdiction of the court. The court concluded that, “[i]n a breach of contract claim, only a party to the contract or an intended third-party beneficiary of the contract may bring an action on a contract in Ohio.”5

[By referencing the “contract claim” the court might have implicitly contrasted “contract” to “tort”. Could that distinction apply to Items 1 & 2? Is Item #1 based on tort while Item #2 is based on “contract” (or trust) relations?]

“Such a rule would seem to be in the spirit of Civ.R. 17, which only allows a plaintiff to cure a real-party-in-interest problem by (1) showing that the real party in interest has ratified the commencement of the action, or (2) joining or substituting the real party in interest.6

“Since WMC was not joined or substituted in this case, the only argument Wells Fargo could have made was that WMC had ratified its actions.

“Ratification is a way that an agent can bind a principal.7 But ratification will not apply when the actor is not acting as the agent of the principal.8

[1. “Principal” = “real party in interest”.

2. Even if an attorney attempts to foreclose on behalf of Wells Fargo and later secured “ratification of commencement” from WMC (the real party in interest), that ratification won’t be valid unless the attorney was, in fact, first an AGENT of the “real party in interest”. No ratification for non-agents.

Thus, it appears that the attorney for Wells Fargo (already shown not to be the real party in interest) would have to first approach WMC (the real party in interest) for a “power of attorney” to represent WMC as its agent. Then—once it was established that the attorney was now agent for WMC—the attorney-cum-agent could ask that its new principal “ratify” the commencement of the suit previously begun by the attorney in the name of Wells Fargo—before the attorney became agent for WMC—but now in the name of WMC.

I don’t think so. Here’s the problem:

Can an attorney approach a particular principle with an invitation to hire him as his attorney and then sue someone else? Doesn’t the attorney have to wait until he’s approached by a client before he can ask for a power of attorney and right to represent the client? If an attorney is hired by and fills suit in the name of some entity (like WMC) that’s not a real party in interest isn’t that barratry or champerty or some such (stirring up lawsuits without cause)? Could it be fraud? If a non-agent attorney files a suit and then goes to the real party in interest to seek 1) status as agent; and 2) ratification of commencement—hasn’t that attorney engaged in barratry by filing the suit without subject matter jurisdiction?

This whole thing makes me grin, grin, grin.

I’m beginning to see that Rule 17(a) may have been devised as means to protect attorneys who routinely file suits without authority of the real party in interest. But even the Rule 17(a) device may be only a kind of bluff to bamboozle the unwitting defendant.

If the attorney must truly be an “agent” of the “real party in interest” before he files a lawsuit, but files on behalf of some entity that is not the “real party in interest,” then even a Rule 17(a) ratification won’t suffice to authorize the suit. At least not if the defendant understands the game.

Of course, how many defendants really understand the game? One in 10,000? One in a million?

But IF—as the court seems to declare—the attorney must actually be “agent” for the real party in interest “principal” before the attorney can even apply for a “ratification of commencement,” any attorney who initiates a case for a plaintiff that is not the “real party in interest” from the git-go is at least screwed and might even be subject to criminal liability for fraud, barratry, etc.

Remember The Dukes of Hazard? Remember Boss Hog and his “deppity”. I cain’t recall the “deppity’s” name, but I’m laughing just like him. I have a lot to learn and I could be making some big mistakes, but for the moment, this “real party in interest” stuff is almost too much fun.

And, for the sake of argument, let’s suppose that you’re a defendant and you not only know that the party suing you is not real party in interest, but you also know who the real party in interest is—or even might be. And what if, when a suit was initiated against by some phony “party in interest” you sent a notice to all the possible “real parties in interest” that you felt you were being defrauded by the existing plaintiff and his attorney? What if your notice advised all of those possible “real parties in interest” that if they entered into an agreement with the existing plaintiff and/or its attorney in this matter, their agreement might be construed as evidence of their conspiring with the existing attorney deprive you or your rights under color of law, commit fraud, or perhaps even engage in the sort of racketeering acts prohibited under the RICO laws?

You’d want to think this through before you sent any notices. You wouldn’t want to send a notice that might be construed as a threat or an attempt to obstruct justice.

But what would happen if such notice could be properly drafted and sent to all possible “real parties in interest” before the opposing attorney even tried to contact the “real party in interest” to secure 1) status as agent; and 2) a ratification of the commencement of the action? It’s possible that the real party in interest would cover its own butt and refuse to in any way assist the existing attorney. I.e., the attorney would be screwed.

However, to be safe and avoid any possible adverse ramifications from sending notice to the existing “real party in interest,” you might want to just sit back and watch to see if the “real party in interest” would conspire with the existing attorney to give him a ratification without a previous power of attorney. If they real party in interest conspires with the existing plaintiff’s attorney, the real party might wind up as a co-defendant in a Title 42 or RICO suit. If the real party in interest had “deep pockets,” that might not be a bad thing.]

“In this case, Wells Fargo admitted to the trial court that it was not the real party in interest when the suit was filed. Wells Fargo filed suit on its own behalf and acquired the mortgage from WMC later. It was not acting as WMC’s agent.”

[OK—I made a mistake. I previously assumed that the attorney for Wells Fargo must seek to be confirmed as the agent of the real party in interest/principal WMC. But noooo. I see now that the Wells Fargo corporation itself must be confirmed as the agent for WMC “principal” before the attorney for Wells Fargo can approach WMC for a “ratification of commencement”.

It just gets better and better. How th’ heck could Wells Fargo Inc. claim to be mere “agent” for WMC Inc. if Wells Fargo also claimed to have purchased the property from WMC? If Wells Fargo took possession of the property from WMC as mere agent for WMC, then it’s not only true that Wells Fargo never owned any right, title or interest to the property—it’s also true that we might ask if WMC had any clearer title to the property than Wells Fargo. I.e., before WMC allegedly “sold” the property to its “agent” Wells Fargo, WMC had to purchase the property from some earlier owner. How did the purported sale of property from this earlier owner to WMC differ from the purported sale of the same property from WMC to its “agent” Wells Fargo? If there were no substantial difference, then even WMC might be only “agent” for the earlier seller (real party in interest). So, who/what would be the real “real party in interest”?

And then, if WMC only appeared to sell the property to Wells Fargo—but in fact only transferred the property to Wells Fargo as agent—how close is that to fraud? Such transfer would be certainly confusing and arguably deceptive.

The lesson, so far, is unmistakable: If a defendant can properly raise the issue of “real party in interest,” the plaintiff is screwed, screwed, screwed.

And pay close attention to Texas Rule of Civil Procedure #13 (“Effect of Signing of Pleadings, Motions & Other Papers; Sanctions”) or the equivalent rule in your state. It defines the penalties imposed on anyone (including lawyers) who knowingly signs a fictitious or otherwise groundless pleading.

Again, this is almost tooooo good.]

“There was no evidence that WMC had “ratified” the commencement of the action—only that it had sold the mortgage to Wells Fargo. None of the documents indicated that WMC even knew about this case.”

[The real party in interest (WMC) might sell of assign the property to Wells Fargo after Wells Fargo filed the foreclosure suit against the Byrds. But selling or assigning the property to Wells Fargo, WMC might help create a new standing for Wells Fargo as the “real party in interest”. Base on that new standing, Wells Fargo could file a second lawsuit.

However, if Wells Fargo was not the “agent” of WMC at the time the foreclosure was filed, no amount of razzle-dazzle would allow WMC could to “retroactively” ratify the commencement of the suit by Wells Fargo. The real party in interest/principal (WMC) cannot retroactively ratify the acts of a non-agent (Wells Fargo).

If Wells Fargo was not either the “real party in interest” or at least agent/representative for the “real party in interest” when the suit was filed, then Wells Fargo filed that suit without any authority whatsoever. (That’s probably barratry.) If the defendant objects to Wells Fargo as not being the real party in interest, the court has no apparent choice other than to dismiss the suit—unless Wells Fargo can prove that it was agent for the real party in interest when the suit was filed. Wells Fargo cannot go back, after the fact, to cut some sort of deal with WMC to create the “appearance” of ratification.

A defendant might want to preempt any interference by the real party in interest (in this case, WMC) by sending a notice to the “real party in interest” of the possibly fraudulent attempt by the purported plaintiff (Wells Fargo) to extort funds or property under the color of law even though the plaintiff was not the “real party in interest”. This notice might be sent to the “real party in interest” before such notice was sent to the purported plaintiff or objection raised in the court. The object of such notice might be to create evidence that the “real party in interest” knew about the purported plaintiff’s possible fraud before the purported plaintiff contacted the “real party” for a ratification or assignment of the property.

Once that knowledge was in the real party in interest’s hands, that “real party” might be extremely reluctant to cooperate in any way with the purported plaintiff since such cooperation might be construed as evidence of a conspiracy to defraud the defendant.

Result? The purported plaintiff might not be able to secure any assistance from the real party in interest. Without ratification or assignment, the entire claim to be entitled to foreclose might be stripped from the purported plaintiff with little or no hope of recovery—ever.]

“For ratification to occur, the ratifying party must know what actions it is ratifying.9 While Wells Fargo repeatedly argued that ratification had occurred, it seemed to be confused as to which party had to ratify.

“Below, it argued that “Plaintiff, being a real party in interest, did ratify the commencement of this action * * * .” But Civ.R. 17 makes clear that it was WMC, not Wells Fargo, that had to ratify the commencement of the action.

“Wells Fargo has found one decision that holds to the contrary. In Bank of New York v. Stuart,10 the Ninth Appellate District held that a bank that had filed a foreclosure action could cure a real-party-in-interest problem by subsequently obtaining the mortgage.11 But the only authority for this holding was two federal cases from 1966 and 1979. And the two cases are distinguishable. In the first case, the plaintiff was the one who had done all the work that was the subject of the litigation, and the “real party in interest” was “a mere straw man throughout.”12 In the second case, the plaintiff was already a party in his own right and was assigned the claims of another plaintiff.13

“We find instructive a more recent federal case addressing the application of the rule (but in the context of a statute of limitations).14 In that case, the party suing did not have a claim at the time suit was filed, but received an assignment of the claim after it had commenced the litigation. The court held that “Rule 17(a) does not apply to a situation where a party with no cause of action files a lawsuit to toll the statute of limitations and later obtains a cause of action through assignment.”15 In that case, the court concluded that “B & K’s assignment to the Wulffs of its claim against CMA cannot ratify the Wulffs’ commencement of suit on a claim which theretofore did not exist.”16

[In other words, there is NO CLAIM unless the person making the claim is, or represents, the “real party in interest”.]

“In light of the foregoing authority, we must respectfully disagree with the Ninth Appellate District. We hold that, in a foreclosure action, a bank that was not the mortgagee when suit was filed cannot cure its lack of standing by subsequently obtaining an interest in the mortgage. Wells Fargo’s third, fourth, and sixth assignments of error are overruled.

“The Dismissal Issue: Sua Sponte Dismissal

“Having determined that the trial court could have properly dismissed the case for lack of standing when the suit was filed, we must next determine if dismissal was proper when, as here, it was not requested by the Byrds.

[First, the trial court could have dismissed/discharged the original case/claim if requested by the defendants. But if the trial court can also dismiss “sua sponte” (on its own motion), then the trial court would seemingly have an inherent power to discharge claims. That would be consistent with previous speculation that the courts, themselves, may be among the Item #1 persons able to discharge claims.]

“Sua sponte dismissals ordinarily prejudice appellants, as they deny any opportunity to respond to the alleged insufficiencies.17 [“Opportunity to respond” probably equates the procedural due process element of “opportunity to be heard”. To deny the opportunity to be heard violates procedural due process and probably strips the court of jurisdiction.] But here, both parties argued the real-party-in- interest issue, and the facts were clear in the record. [Note that a mere “argument” (not necessarily the introduction of evidence) was sufficient to qualify as “opportunity to be heard”.] Wells Fargo did not have standing at the time the complaint was filed. The record unequivocally indicates that WMC did not assign its rights under the mortgage to Wells Fargo until March 2, 2007. Under these circumstances, there was nothing left for the trial court to address. We overrule Wells Fargo’s second assignment of error.”

[The term “assign” deserves study. Is “assign” synonymous with “sell”? Or does “assign” signal something less? To what extent is someone who has been “assigned” also the “real party in interest”?

(If I recall correctly, there may be at least one of the Christ’s “hearings” where his accusers alleged that he had claimed to be the Messiah. When asked if this was true, the Christ replied “so you say.” The Christ was subsequently declared to be innocent. By replying “so you say,” the Christ did not enter into an argument. Could it be that the fundamentals of modern procedural due process can be traced all the way into biblical times? It seems unlikely, but could it be that by not “arguing,” the Christ was not “heard” and thereby deprived the administrator of his authority to proceed with the case?) ]

“The Dismissal Issue: With or Without Prejudice

“A dismissal of a claim other than on the merits should be a dismissal without prejudice.18 We agree with Wells Fargo that a dismissal that is premised on jurisdiction “operates as a failure otherwise than on the merits” and should be a dismissal without prejudice.19 The dismissal of an action because one of the parties is not a real party in interest or does not have standing is not a dismissal on the merits.20

“But the trial court dismissed this case with prejudice. While it attempted to correct this with a subsequent entry, a trial court is without jurisdiction to modify an order dismissing a cause with prejudice to one without prejudice, unless the requirements of Civ.R. 60 are met.21

“In this case, the requirements of Civ.R. 60 were not met, and, therefore, the trial court could not have changed its final decision from a dismissal with prejudice to one without prejudice. We sustain Wells Fargo’s first and fifth assignments of error. But since the case should have been dismissed without prejudice, we modify the decision of the trial court from a dismissal with prejudice to a dismissal without prejudice. Wells Fargo, now a proper party to initiate a foreclosure action against the Byrds, is free to do so.”

[When WMC finally assigned the mortgage to Wells Fargo, Wells Fargo became “free” to file a new action. The first foreclosure suit was dismissed. A second could be filed. The total delay could be 90 days to a year. Thus, it might seem that the Rule 17(a) challenge to Wells Fargo’s standing as a “real party in interest” didn’t accomplish much other than a temporary delay in the foreclosure action.

However, I wonder if Wells Fargo did, in fact, file a second foreclosure suit. After all, by admitting that it wasn’t the real party in interest in the first case, Wells Fargo may have compromised its ability or inclination to sue again. (It’s arguable that filing suit as anything other than the real party in interest might even expose the filer to a title 42 suit for conspiracy to deprive the mortgagee of his rights.) Once Wells Fargo admitted that it wasn’t the real party in interest until relative recently, they compromised their claim to have been previously entitled to collect mortgage payments from the mortgagee. If Wells Fargo had not right to foreclose until after the assignment of the mortgage deed, what right did Wells Fargo have to collect mortgage payments before the assignment? If it were true that Wells Fargo did not have legal right to collect mortgage payments before to the actual assignment of mortgage deed, then it is at least arguable that Wells Fargo might be compelled to disgorge those pre-assignment funds.

Perhaps the original mortgagee went no further than to challenge Wells Fargo’s standing under Rule 17(a) as a real party in interest. If so, after Wells Fargo was assigned the mortgage deed, Wells Fargo may have successfully foreclosed on a second foreclosure action.

But I suspect that if the original mortgagee fully appreciated the implications of Wells Fargo admission that it was only recently assigned the interest in the mortgage deed, that admission may have created a liability for Wells Fargo that the mortgagee might’ve exploited to great advantage. If I were such mortgagee, I’d challenge Wells Fargo’s right to collect mortgage payments before Wells Fargo was assigned the mortgage deed.

If Wells Fargo had no right (prior to the assignment) to collect the mortgage payments, Wells Fargo might have to disgorge those pre-assignment payments back to me—the mortgagee. I might threaten to sue Wells Fargo for fraud or civil rights violations for taking funds from me when it knew or should’ve known that it had no right to such funds. I’d make it my business to locate other mortgagees who were similarly exploited by Wells Fargo so I had evidence of a “pattern” of racketeering activity by Wells Fargo to support a RICO suit. And I’d charge the lawyers in the foreclosure mill with barratry, fraud, breach of their “code of ethics,” vexatious litigation, etc..

By the time I was done, Wells Fargo might be reluctant to try to foreclose on me a second time.]

“The Sanction Issue

“The Clunk firm, in two related assignments of error, claims that the trial court improperly ordered it to “file documentation showing that their client is the real party in interest as of the date of the filing of the lawsuit” in all future foreclosure actions filed by the firm. We agree.

“There is no authority for what the trial court did. The Byrds did not seek sanctions [Interesting. The Byrds (defendants) could provide authority to the judge to seek sanctions by requesting he do so.], there was no notice of the possibility that this firm would be sanctioned, and there was no hearing on sanctions.”

[Without 1) notice and 2) opportunity to be heard, the attorney firm was denied procedural due process as a prerequisite for being sanctioned. Without procedural due process, the court presumably had no authority to sanction the lawfirm.]

“The trial court did not limit the sanction to this case, but sanctioned the firm for all of its future conduct. In essence, the trial court crafted an additional pleading requirement that would apply only to one law firm. Apart from the vexatious-litigator statute, there is no authority that would allow a trial court to impose additional pleading requirements on an individual—let alone a law firm—in future litigation. The Byrds have cited no such authority and, in fact, have not addressed these assignments of error in their brief.”

[There’s another possible authority to use as ground to attack those who file suits without the authority of the “real party in interest”—charge them as vexatious litigants. Then, go looking for other cases where they’ve done the same thing to other defendants. Because mortgage deeds have been resold by banks and bundled into “tranches” that are sold all over the earth, you can bet that 30 to 60% of all foreclosures filed by plaintiffs who don’t have the real mortgage deed to prove they are the real party in interest. Therefore, those law firms that function as “foreclosure mills” routinely file foreclosure actions without the authority of the “real party in interest”. That suggests that if you had ten cases filed by those attorneys, at least three of them would be without the authority of the real party in interest.

If the cases were already resolved, the foreclosure actions would probably have been successful in that defendants probably didn’t understand Rule 17(a) and unwittingly “assented” to lose their homes. I wouldn’t bet that such past cases could be used as evidence of “vexatious litigants” since the attorney’s won (if unfairly) those lawsuits.

But if a defendant in one current foreclosure action could find several other foreclosure actions that were filed by the same attorney or law firm but not yet resolved, and if some of those other current actions were also filed without a “real party in interest,” then there’d be evidence of a recurring pattern of lawless conduct by the law firm. Such pattern might be grounds for “vexatious litigant” charges, recurring barratry charges or even a RICO suit.

I don’t know what current barratry laws are but 15 years ago, under Texas law, the 1st proven barratry charge was a misdemeanor, the 2nd was a misdemeanor, and the 3rd barratry charge (that’s proved) constituted a felony. A felony is evidence of “moral turpitude” and grounds for terminating an attorney’s license to steal. Thus, 15 years ago, if you could prove 3 instances of barratry you could cause a lawyer to be disbarred. And that was 3 instances in the attorney’s entire career. Three barratry strikes and they’re out. Being convicted of a single instance of barratry would scare the crap out of any licensed attorney. Being threatened by three would give them screaming diarrhea.

Whether current barratry laws remain as dangerous to attorneys as they were 15 years ago is unknown to me. But I’ll bet at least some states still carry similar barratry laws and penalties.

If the 3-strikes-you’re-out pattern of barratry isn’t enough to scare opposing attorneys, I’d bet that any such pattern of improper behavior of repeatedly filing suits without proper authority and thereby defrauding mortgagees out of their homes and property will constitute sufficient evidence to file RICO suits against those attorneys and/or their law firm (“criminal enterprise”). The nice things about RICO are 1) you don’t need to be a licensed attorney to file a civil RICO suit; 2) subsequent criminal prosecution is possible; 3) conviction of a felony should result in disbarment; and 4) RICO is all about a “pattern” of criminal activity.

Let’s suppose that a particular law firm is a “foreclosure mill” that routinely kicks people out of their homes. Let’s suppose that a lot of people are currently losing their homes to foreclosure due less to their own irresponsibility than to a dramatic change in our national economy. Let’s suppose that a jury consists of 12 people—some of whom have lost their homes to foreclosure, or have friends or relatives that lost their homes to foreclosure, or are simply caught in tough economic circumstances wherein they are afraid that they might be foreclosed on at some time in the future. How much sympathy do you suppose a modern jury would have for a lawyer or law firm that had been routinely foreclosing on people without lawful authority to do so?

What the heck was Boss Hog’s “depitty’s” name? Cletus? Was that it? I’m laughin’ like Cletus.

Y’see, the foreclosure lawyers get away with this crap because:

1) The people being foreclosed upon are too broke to hire even incompetent attorneys, so they are totally defenseless; and,

2) Even if a mortgagee could afford a decent attorney, that attorney would not accuse his fellow attorneys of barratry, RICO or even vexatious litigation. Within the lawyer community, there’s a code of silence (and of ignorance, laziness and incompetence) that protects most lawyers from liability for their criminal, improper and even unethical acts.

As a result, lawyers are so used to getting away with “murder,” that they’ve become not merely arrogant but careless. Therefore, lawyers are vulnerable to attack by non-lawyers who 1) knowledgeable; and 2) not inhibited by codes of silence, ignorance, laziness or incompetence. So, if you happened to be a defendant who understood a little about the law but weren’t a licensed attorney, you might be willing and able to attack the attorneys who were attacking you by threatening their most precious asset—no, not their sex organs, silly—their licenses to steal. If you could learn how to cause lawyers to be disbarred, I guarantee you’ll see a lot less lawyers aimed in your direction.

In law, the best defense is always a good offense.]

“We sustain the law firm’s two assignments of error.

“Conclusion

“The trial court properly dismissed the foreclosure complaint filed by Wells Fargo in this case because, at the time the complaint was filed, it did not own the mortgage that was the basis for the suit. Acquiring the mortgage by assignment after the suit was commenced could not have cured the jurisdictional defect arising from the fact that, at the time the lawsuit was filed, Wells Fargo had no claims to make against the Byrds. But while the dismissal was proper, it should have been, and is now ordered to be, without prejudice.

“The trial court lacked authority to order the Clunk firm, upon the filing of future foreclosure complaints, to present additional documentation demonstrating that its clients are the real parties in interest.

“The judgment of the trial court is affirmed in part as modified with respect to dismissal of the action, and reversed in part with respect to the imposition of sanctions.

“Judgment accordingly.

“HILDEBRANDT, P.J., and CUNNINGHAM, J., concur.

“Please Note:

“The court has recorded its own entry on the date of the release of this opinion.”

1 State ex rel. Dallman v. Court of Common Pleas (1973), 35 Ohio St.2d 176, 298 N.E.2d 515, syllabus.

2 Northland Ins. Co. v. Illuminating Co., 11th Dist. Nos. 2002-A-0058 and 2002-A-0066, 2004- Ohio-1529, at ¶17 (internal quotations and citations omitted).

3 Travelers Indemn. Co. v. R. L. Smith Co. (Apr. 13, 2001), 11th Dist. No. 2000-L-014.

4 Discover Bank v. Brockmeier, 12th Dist. No. CA2006-07-078, 2007-Ohio-1552, at ¶7, citing In re Highland Holiday Subdivision (1971), 27 Ohio App.2d 237, 240, 273 N.E.2d 903.

5 Id., citing Grant Thornton v. Windsor House, Inc. (1991), 57 Ohio St.3d 158, 161, 566 N.E.2d 1220.

6 Civ.R. 17(A).

7 See Morr v. Crouch (1969), 19 Ohio St.2d 24, 249 N.E.2d 780 8 See Alban Equipment Co. v. MPH Crane, Inc. (June 2, 1989), 4th Dist. No. 424 (“Ratification does not result from the affirmance of a transaction with a third person unless the one acting purported to be acting for the ratifier.“), quoting 1 Restatement of the Law 2d, Agency (1958), 217, Section 85; see, also, Williams v. Stearns (1898), 59 Ohio St. 28.

9 See Lithograph Bldg. Co. v. Watt (1917), 96 Ohio St. 74, 85, 117 N.E. 25 (before the principal can be held to ratify the unauthorized acts of his agent, it must appear that he had knowledge of all material facts).

[Another beauty. All material facts”? All? There’s no end to the questions that requirement might pose.

Q. Are you the “real party in interest” in this matter?

Q. Do you have knowledge of all material facts in this matter?

Q. Can you list all the material facts in this matter?]

10 9th Dist. No. 06CA008953, 2007-Ohio-1483.

11 Id. at ¶12.

12 Campus Sweater and Sportswear Co. v. M. B. Kahn Constr. Co. (D.S.C.1979), 515 F.Supp. 64, 84-85 13 Dubuque Stone Prods. Co. v. Fred L. Gray Co. (C.A.8, 1966), 356 F.2d 718, 723-724.

14 United States v. CMA, Inc. (C.A.9, 1989), 890 F.2d 1070, 1074.

15 Id.

16 Id. See, also, Feist v. Consolidated Freightways Corp. (E.D.Pa.1999), 100 F.Supp.2d 273, 274 (plaintiff’s filing of suit in his own name after his Chapter 7 case was closed, and after having failed to list injury claim as estate asset, was not result of honest mistake and thus warranted dismissal rather than substitution of bankruptcy trustee as real party in interest); Automated Information Processing, Inc. v. Genesys Solutions Group, Inc. (D.N.Y.1995), 164 F.R.D. 1, 3 (The rule permitting substitution of real party in interest when necessary to avoid injustice did not permit substitution of newly formed corporation as plaintiff after it was discovered that corporation that originally brought action had been dissolved.).

[Hmph. Is the Item #1 “person” able to “discharge claims” a “bankruptcy trustee”? Is the whole mess presumed to take place in the context of a national bankruptcy? As a presumed “bankrupt” am I presumed to sue other “bankrupts” who are Item #2 “parties” to some private contract/trust agreements that take place within the larger context of a “national bankruptcy”? If so, while the individual bankrupt defendant might discharge the plaintiff’s claim by transferring some FRNs, the “great bankruptcy trustee in the Washington (or state capitol) sky” is always in the background and potentially available to discharge any claim?

Why does anyone “discharge” rather than pay a claim?

A: Because they are insolvent or bankrupt and unable to pay.

Insofar as both the Item #1 “person” and the Item #2 “party” both discharge (rather than pay) claims, could it be that both are presumed to act as bankrupts or at least in the context of bankruptcy?

Do modern “claims” themselves (especially if denominated in legal tender) exist only in bankruptcy?

Hard to say, but the “discharge”/bankruptcy link makes a little sense.

Is that what’s happening??

If this conjecture were roughly correct, it would suggest that anytime I was sued, it might be possible for me to somehow petition the “great bankruptcy trustee” to discharge the claim purportedly against me. Why might this work? Maybe because, if the whole system is presumed to be in bankruptcy, then the plaintiff itself might also be presumed to be a bankrupt and therefore without standing (or perhaps capacity) to sue.

Therefore, if I alleged the plaintiff were bankrupt and the plaintiff couldn’t prove it was solvent, then I might have sufficient evidence to ask the “great bankruptcy trustee” to “discharge” the claim against me.

But who might be the “great and terrible bankruptcy trustee”? The President? Secretary of State? Secretary of the Treasury? Attorney General? Director of the “Fund”?

If some one man was deemed to be the “great bankruptcy trustee” able to discharge all claims in bankruptcy, he’d have to have agents or representatives. Who might they be? Is it possible that the judge sitting on virtually any bench is actually a bankruptcy trustee for the “national bankruptcy”? Truth is, the judge can “discharge” virtually any claim in his court by dismissing it. . . .

Is that what a 12(b)(6) motion is all about? Alleging that the plaintiff is bankrupt and therefore “failed to state a claim [in bankruptcy] for which relief can be granted”? The plaintiff would’ve proved his condition as a bankrupt by discharging the filing fee with legal tender rather than money. Being bankrupt, the plaintiff could not bond the case.

But attorneys—whose creed declares “my word is my bond” would be recognized as able to “bond” a case without lawful money. This suggests that “this state” is a state of bankruptcy and licensed attorneys therein are all trustees for the national bankruptcy. This might explain why pro se suits are routinely dismissed by the courts under 12(b)(6) motions while suits filed by attorneys/bankruptcy-trustees are always heard.

Implication: If the “pro se” (actually “in propria persona”) plaintiff could establish that he’s not bankrupt, he might not be subject to 12(b)(6) (failure to state a claim) dismissals.

If a defendant can allege that the plaintiff is bankrupt, the trial court judge (or even magistrate) might be empowered to dismiss/discharge on that basis. It’s even possible that the magistrate’s primary purpose is to discover if the defendant and plaintiff are bankrupts. If the defendant tells the magistrate that the plaintiff is bankrupt, the case might be dismissed/discharged. Likewise, if the defendant could prove that he is NOT bankrupt, the plaintiff’s case might be dismissed/discharged.

How would a defendant prove he was not bankrupt? Claim to be a creditor rather than a debtor in the matter at hand?

How ‘bout counter-claim? What if I were sued, counter-claimed as a plaintiff and paid my filing fee with lawful money and expressly denied that I was bankrupt and declared myself to be solvent? Would that be sufficient to cause the “bankrupt” plaintiff’s case to be dismissed against a solvent counter-claiming plaintiff?

All of this speculation strikes me as a serious stretch, but there is enough support to consider the possibilities.]

17 MBNA Am. Bank, N.A. v. Canfora, 9th Dist. No. 23588, 2007-Ohio-4137, at ¶ 14.

18 See Chadwick v. Barba Lou, Inc. (1982), 69 Ohio St.2d 222, 226, 431 N.E.2d 660.

19 See Civ.R. 41(B)(4).

20 See State ex rel. Coles v. Granville, 116 Ohio St.3d 231, 2007-Ohio-6057, 877 N.E.2d 968, at ¶51.

21 Young v. Ohio Adult Parole Auth. (Apr. 27, 2001), 2nd Dist. No. 2001 CA 3.

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46 responses to “Ohio Foreclosure Stopped by “Real Party in Interest” Objection

  1. jim

    April 3, 2009 at 8:51 PM

    Adask,

    I am currently preparing a case against a large bank and planned to use some of the language that you are discussing here. My research has lead me down many paths, however, I always end up with the fundamental… rule 17(a) and its’ strength. Also, I have some very strong accounting issues that bring into play the very backbone of large scale fraud by most mortgage/banking business. In fact, the folks at Enron were summarily fired and subsequently indicted due to the nature of what they knew about these accounting anomalies. If you look at FASB reg’s. and study FAS 95, 133, 140, as well as 1099 OID’s filed by the banks on your behalf, RC-S and RC-B call schedules, S-3/A registration, etc… you’ll find that the banks do “off sheet balance” bookeeping to remove these notes from their books for a reason…. you are the original issuer of credit and therefore, are the true “real party in interest” of record. You should have gotten a cash receipt for your note, but it’s reported as “abandoned property” by the banks and they get to charge you for a brand new ” principal”. If you don’t register your claim of funds, they are perfectly within their commercial rights to do so. You did want it that way… didn’t you?? I have demanded these documents from my “bank” and have had their attorneys blatantly refuse to disclose these, even though they are disclosable under Title 5 and 12 USC 1813 (L)(1). We are filing in Dist. Court in a few weeks and I’ll be surprised to see anything other than running and backpeddling…but we’ll see. I’m going back to the original filing of a default notice filed by the loan servicer and asking their authority to file such a doc. as a dis-interested third party. We’re asking for a TRO and an injunction against the servicer fr any further action pending the hearing, where I will be asking for my accounting doc’s. in discovery and for the banks standing and capacity to attempt to take my property without due process. I’m in California, so this gets a little more complex… non-judicial proceedings in the form of “trustee sale” without the court even having to be involved. I’ll let you know…Jim

     
    • adask

      April 3, 2009 at 11:11 PM

      Hi Jim,

      I am delighted by your candor. It sounds like you know a bunch more than I do on this subject. There’s an enormous amount of information in your comment for me and others to investigate. I look forward to hearing how things ultimately work out in your case. Thanks very much.

      Al

       
    • Jose

      April 28, 2009 at 12:15 PM

      I believe I am in similar situation. So far the bank has refused to answer all my official written request to disclose any critical information as per RESPA and TILA laws. Furthermore, they claimed they lost or misplaced the “Original Promissory Note.” However, the property located in Florida was foreclosed on 4.6.09 and is scheduled for sale on 5.7.09. Any advice will be highly appreciated!
      Thanks

       
      • adask

        April 29, 2009 at 3:36 PM

        There’s not much advice I can offer. Advice is usually helpful when your adversary or the courts are playing by the rules. When your adversary is lying or intentionally breaking the law, you have to look for ways to charge them criminally. As you probably know, if they’ve refused to disclose information that you’re entitled to have, they may liable for your resulting losses. If the claim that they’ve lost or misplaced the “Original Promissory Note” was sent to you by mail, and if that claim can be shown to be false, they may be guilty of mail fraud. If I were in your situation, I’d try to make my adversary understand that he might assume some civil or criminal liability if he proceeds. They won’t do the “right thing” because it’s “right”. They might do the right thing if they see some likelihood of being held liable if they proceed to do the wrong thing. If I were in your position, I’d send registered mail to my adversary explaining their possible breaches of the law and possible liability. Then, if they proceeded, there’d be evidence that the proceeded knowingly. Evidence of such knowledge could make it easier to charge them civilly or criminally at a later date.

         
      • jim

        April 29, 2009 at 9:26 PM

        This is for Jose, I think if you were to immediately get a Lis Pendens filed at the Superior Court of jurisdiction, then make an ex parte application to the judge using the language “irreparable harm” in your declaration, you might get the Court to issue a temporary restraining order and a preliminary injunction until the production of doc’s. can prove your possessory rights and your beneficial title position with respect to the original promissory note. The term “irreparable harm” is paramount because it identifies your property as “unique”. This language has been successful because if the sale is allowed to proceed without due process, you will have been denied access to due process and you cannot legally re-gain your property back…. compensatory damages are not sufficient. Remember, if a real party in interest is not identified with a REGISTERED CLAIM… there is no cause for any agent to foreclose or sell your interest in the subject property. If they try to pull the trustee card, make them show you the ratification of commencement which specifically identifies BOTH PARTIES in the document…. they won’t have one. Get to Court fast and make the ex parte application for injunctive relief and TRO.

        Good luck…Jim

         
  2. jim

    April 8, 2009 at 11:54 PM

    Al,

    Just a quick up-date on lawsuit. I am filing my complaint in Superior court tomorrow…making sure to invoke the “Court of Record” in the intro of the pleading. Also, after my name, I always include ” suo jure” ( in my own right) and as a ” real party in interest” to clarify my standing and capacity. This means that, under equal protection of the law, the other party must also, ultimately, have the same standing. I have also demanded to the Court that the real party in interest (the beneficiary of the note, or actual holder of original) be brought before the Court or be estopped from any claim he/she may have against me, and to produce the registered claim. If they do show up (not bloody likely) they will evidence to the Court a note that was sold or transferred and therefore, an illegally transferred security. The accounting will prove this fact. They will never show up… ever. D-E-F-A-U-L-T! Declaratory and summary judgment…period. I’ll let you know once the injunctive relief is granted, if the Judge executes that, it’s over.

     
  3. Katheryn Bull

    April 14, 2009 at 4:02 PM

    Wow, Hey thanks so much. I been on the web for days and you gave me so much info when I go to court tomorrow I bet I will scare the lawyer. This is for a default judgement. They have yet to prove that they are the party of interest and on what date they took over loan. I love playing lawyer!!! I have several in my family. Too embarassed to ask them though. I will get a lawyer for next time as they most likely file another foreclosure suit but I just need a little time to get my stuff back together. I will keep you informed. Again thanks so much, its almost perfect. You are a God-send for me.

     
  4. Jose

    April 30, 2009 at 10:20 AM

    Thanks Jim
    I am more than willing to do do what it takes to bring this matter to the proper jurisdiction but I must admit I lack the “how to” in regards to the preceddings and the documentation needed to present to the proper court. Can we talk? My email is pastorjalopez@gmail.com.
    Once again any assistance would be highly aprreciated!

     
  5. Dannie

    August 24, 2009 at 7:41 AM

    Al,

    My previous mortgages have always included the right of the mortgage company to sell my mortgage to another company. I guess they sold them to investment companies and remained the servicer of the loans. So, I don’t see how getting a copy of my original promissory note would change anything since I gave them the right to assign, transfer, and sell my note.

     
    • adask

      August 24, 2009 at 2:12 PM

      Yes, the bank probably had the righ to sell the mortgage. But did they have the right to sell the mortage and keep all the proceeds for themselves? Is that what you INTENDED when you signed the mortgage agreement? Did they have the right to sell your mortgage (perhaps at the full face value of the mortgage) and continue to bill you for the full repayment of the mortgage plus interest? In the end, the bank is trying to be paid twice for the mortgage. One way or another, that’s almost certainly fraud–especially if the bank that no longer owns the mortgage tries to foreclose as if they still do own the mortgage.

       
  6. Zolee

    September 18, 2009 at 4:03 AM

    Adask, I want to confirm with your advise whether IndyMac or MTC Financial dba Trustee Corp (a.k.a debt collector) must provide me a written copy of the fact that foreclosure has stopped and that title has returned to me.

    On 9/10/09 IndyMac received signed papers from me and the 1st of six monthly partial payments that we have agreed to. In their papers they stated this agreement would stop foreclosure actions. On 9/17/09 IndyMac received the full reinstatement amount (as quoted by IndyMac) from me. Meanwhile on the same day (9/17) I received six copies of Trustee Corps intent to sell my property at auction on 10/7/09. Included with the papers was a Substitution of Trustee where by they transfering the title from me to Trustee Corp.

    I’ll be calling IndyMac today to discuss everything that has transpired since 9/10.

     
    • adask

      September 19, 2009 at 7:22 PM

      Hi Zolee,
      I have no knowledge of what IndyMac’s or MTC’s procedures or obligations may be. Therefore, I can’t say whether they are obligated to provide you with a written copy of anything. However, if they told you 1) that the foreclosure process was stopped; and 2) they proceeded with the foreclosure; then you’ve got an issue of mistake, fraud, something.
      As to “transferring the title from [you] to the Trustee Corp., I’m a little confused. I presume they mean that they are transferring your equitable title to the home to Trustee Corp. However, you say this transfer was achieved with a “Substitution of Trustee” form or process. Do you imply that you were the original trustee and that a new trustee is being substituted in your place? I’d be very much surprised if you were the original trustee. But insofar as this process involves both “trustees” and a transfer of title, that title should be the legal title to the property rather than what I presume is your equitable title.
      It is a puzzlement, hmm?
      The fundamental question is Who holds the actual mortgage, note and legal title? I’d bet that they are attempting to make these transfers based on copies of the original documents rather than the originals themselves. If they don’t have the originals, they may have no standing to proceed.

       
  7. Hon. PSG

    October 29, 2009 at 7:45 PM

    Great Job Judge!!!

     
  8. Roger Tanner

    December 7, 2009 at 7:38 PM

    If you want to stop all this, look at title 18 U.S.C.474 Securities are MONEY OF ACCOUNT. Thank You and have a nice day. Ask a court clerk how they spell “counterfeit”

     
    • adask

      December 8, 2009 at 11:54 AM

      I think you may have found an interesting section that may be useful in charging lenders who engage in mortgage fraud with felonies. However, I can’t find the words “account” or “money” or the term “money of account” in Section 474 nor in the attached “Notes” on Findlaw.com.

       
  9. bankruptcy copies

    March 6, 2010 at 12:26 PM

    Easily, this article is actually the freshest on this laudable topic. I agree with your conclusions and anxiously look forward to your next updates. Saying thanks will not be adequate, for the great lucidity in your writing. I’ll immediately grab your feed to stay abreast of any updates. Solid work and much success in your business efforts!

     
  10. N.B. Holmes

    August 12, 2010 at 8:08 PM

    I have tried ever so-called “Silver Bullet” out there and failed every time. Finally I figured out a sure-fire method that works for me each and every time. Just as the judges are corrupt and the attorneys lie, so do I.

    I have four close friends and they simply show up as my witnesses in traffic court and testify that I did not run the stop sign, or what ever the charge is. Now it becomes four words against the officer’s word. The judge hates it, and the officer gets really pissed off, but what can they do? If they ruled against me, with four witnesses, the courtroom would accuse the judge of running a kangaroo court! Works every time (so far, three times out of three times).

     
    • adask

      August 12, 2010 at 11:22 PM

      I hate to think that you might be right. The problem is, I don’t want to become a liar, nor do I want to recruit others to lie for me.
      Nevertheless, for a system that’s based on lies, I have to admit that a defendant’s lies would probably carry more weight than the defendant’s truth.
      We live in interesting times.

       
  11. Aurora Real Estate

    August 19, 2010 at 9:39 PM

    Beneficial information and excellent design you got here! I would like to thank you for sharing your thoughts and time into the stuff you post!! Thumbs up!

     
  12. Dan Glasho

    September 22, 2010 at 6:27 PM

    Responding to the post “lie in court”, I must admit I agree. The entire court system is corrupt. I have a court date in eight days, and I must say I am a bit scared, but I have two friends who agreed to lie for me if I go to trial. I am hoping to get at least two more, to really stack the deck on those crooks!

     
    • adask

      September 22, 2010 at 7:19 PM

      I don’t feel comfortable with the any lying. Even in a corrupt court. So I don’t recommend it.
      But if you’re going to lie–especially in a court–I absolutely recommend that you don’t publicize the fact on the internet (as you have in your previous comment).
      The reason lies can work in court is that the court can’t prove you lied. If you and two friends lie in concert, it will be very difficult for the court to overcome your testimony and prove that you and your two friends were lying. Result? You’ll probably win your case.
      But if the court found evidence on the internet–or perhaps testimony from some of your other friends or acquaintances–that, prior to going to court, you’ve expressed an intention to not only lie under oath in court, but conspire with two others who are also willing to knowingly perjure themselves in support of your lie–then the court might make a very serious “example” of the three of you. All three of you could be charged with perjury and conspiracy to defraud the court. All three of you might be sentenced to prison for some considerable time.
      Again, I understand how corrupt courts compel litigants to also become corrupt so as to win. I understand why some people my be driven to lie in court. I don’t support such lying. And I don’t support stupidity, either. Expressing your intent to lie in court in a public forum is about as smart as drinking a couple of six-packs of beer before you go to the hearing.
      I am not optimistic about your chances in court. If you are foolish enough to publicize your intention to lie in court, I doubt that you’re bright enough to win in court on your own. If your friends (the one’s willing to perjure themselves) are no brighter than you, it wouldn’t be surprising if a shrewd prosecutor and/or plaintiff’s attorney was clever enough to get one of you three guys to “crack” on the witness stand and confess to the conspiracy.
      If you’re going to commit a crime to defend against a criminal court system, you should at least have enough sense to keep your mouth shut.

       
  13. Bobby Goodwin

    September 26, 2010 at 12:37 PM

    HERE IS ONE TO CONSIDER. Pursuant to CFR, Title 27, Section 72.11, all crimes (Federal or State, felonys, misdemeaners, victimless crimes, even traffic crimes), in America and the Federal territories have been converted to “Commercial crime”. As some know, commercial crimes are dealt with by Commercial Law, e.g. Uniform Commercial Code. (See Black’s Law Dictionary of the term Commercial Law, and also Uniform Commercial Code)

    Most attorney (and lower court judges) do not know that the UCC is in effect via 72.11. The remedy under UCC is found at 1-308 of the Code (Reservation of Rights). Once a reservation is made, Remedy is possible via 1-103 wherein the Statute must be in harmony with the Common Law, which remains in force.

    In case you want to know how all crimes are justified as being “Commercial crimes”, read the U.S. Constitution (Article 1, Section 8, Clause 3) and notice that Congress has exclusive power to “regulate commerece” throughout the several States. Therefore, Congress simply converted all crimes into commercial crimes, thereby claiming power to regulate crimes throughout the several states. Sneeky, but legal and/or Constitutional.

    Any comments?

     
    • adask

      September 26, 2010 at 10:33 PM

      I can’t prove it, but I’d be willing the bet that the fundamental presumption at the base of every “commercial crime” is that the defendant is a DEBTOR. I wouldn’t be surprised if all commercial crimes” are prosecuted in the context of the presumption of some national or personal bankruptcy.

       
  14. Bobby Goodwin

    September 27, 2010 at 8:38 AM

    Yes, more likely the national bankruptcy (1933). I have yet to learn the date that Title 27, 72.11 was enacted, but I would bet it was very close to the year 1938. Four (4) major things happened in 1938. That was the year the procedures of Law and Equity (and Admiralty) were blended together, and the same year Congress created the “Chandler Act” (New Bankruptcy Act of America), and also the same year Erie Railroad v. Thompkins overturned the 1841 case of Swift v. Tyson. In that 1938 Supreme court case Erie RR established that there was no longer Common Law at the Federal level. Also in 1938, yellow fringe was placed around three corners of the American Flag and the four-colored flags were placed in every State court in America. Old Glory (red, white, and blue) was replaced by the flag of the federal corporation now known as the “United States”. For proof that the United States is a “Federal corporation”, see USC, Title 28, Part VI, Chapter 176, Subchapter A § 3002.

    Now, with all crimes being treated as “Commercial crimes”, there is no longer a “Criminal action”. As stated in the Federal Rules Of Civil Procedures (Scope of Rules, One Form of Action: Rule 2, which says “… there shall be one form of action, the “civil action.” This Rule is also in the States laws. For example, the Arkansas Judiciary 1. Scope of rules – Rule 2 says “There shall be one form of action to be known as “civil action.”  
    History. Amended May 24, 2001, effective July 1, 2001.

    Comments please.
    ________________________________________

     
    • adask

      September 27, 2010 at 1:47 PM

      You’ve obviously done considerable research into details of a concept that I’m only aware of on a superficial level. I might spend three months following and commenting on the leads you’ve provided. You don’t need my “comments”. You should, instead, be providing us with more of your own information and understanding. Have you written any articles?

       
  15. Bobby G

    September 29, 2010 at 4:27 PM

    Al. Here is something to support your theory that “this State” indicates the Federal State. U.S.C.S. > Title 4 > Chapter 4 > 104-113, Section 110(e) and (d) states the following:
    (d) The term “State” includes any Territory or possession of the United States
    (e) The term “Federal area” means any lands or premises held or acquired by or for the use of the United States or any department, establishment, or agency, of the United States; and any Federal area, or any part thereof, which is located within the exterior boundaries of any State, shall be deemed to be a Federal area located within such State.

    In addition; As I pointed out to you previously, according to Title 27 72.11 all crimes are “Commercial crimes”. According to the Federal Rules Of Civil Procedures (and state Rules) “there shall be one form of action known as “civil action”. With this now established, consider the following:
    The U.S. Constitution as well as the Texas (and other state constitutions) guarantees a Jury Trial in all criminal prosecutions. Correct? However, according to Green v. W.E. Grace Mfg. Co., 422 S.W.2d 723, 725 (Tex. 1968).”The right to a jury trial in civil cases is not absolute; rather, it is regulated by rules specifying its availability.” Has our RIGHT to a Jury Trial now been superseeded by a “Rule” specifying its availability? 
    Bobby G

     
    • adask

      September 29, 2010 at 11:10 PM

      Has our “right” to a”Jury Trial” now been superceded by a “Rule”? That depends on where you are. If you’re within The State of Texas, your right to a “trial by jury” composed of your “peers” is absolute. If you’re “in this state,” your “right” to a “Jury Trial” is conditional on whatever is best for gov-co at any given moment. If the “this state”/”The State” dichotomy is real, then our “rights” will be determined by the place and/or venue in which we conduct our affairs. Within the venue of The State, the rights you’re talking about will be virtually absolute. In the venue of “this state,” your supposed “rights” are mere “expectations” that carry no more weight than a child’s expectation that he’ll get a pony for Christmas.
      Know your place, Bobby. Before you can be free, you gotta know your place.

       
  16. Bobby G

    October 7, 2010 at 7:45 PM

    Hi Alfred. Here is something that might even stump you.

    First let me state that I am “without the United States”, to which I have officially sworn to. Here is the situation.

    If I file taxes, I am required to swear under penalty of perjury that my statements are true. As you and I both know, making a false statement under oath is a very serious crime according to the IRS Code (i.e. Title 26, Subtitle F, Chapter 75, Subchapter A, §7204, Fraudulent statement or failure to make statement to employees). It states…

    §7204
    “In lieu of any other penalty provided by law (except the penalty provided by section 6674) any person required under the provisions of section 6051 to furnish a statement who willfully furnishes a false or fraudulent statement or who willfully fails to furnish a statement in the manner, at the time, and showing the information required under section 6051, or regulations prescribed thereunder, shall, for each such offense, upon conviction thereof, be fined not more than $1,000, or imprisoned not more than 1 year, or both.”

    In addition, purjury is a more severe penalty imposed by §1621 of the United States Code, Title 18, Part I , Chapter 79.

    §1621
    “Whoever—
    (1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or

    (2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true; is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.” (Emphasis added)

    Alfred… please take notice of the two underlined terms “Without” and “Within the United States” (above). Those terms denotes two distinct and separate jurisdictions relating to the “United States”. Notice should also be taken that the term “United States”, pursuant to § 3121 (e)(2) of Title 26, Subtitle C, Chapter 21, Subchapter C, includes federal areas, which are possessions of the District of Columbia.

    § 3121 DEFINITIONS.
    “(e) State, United States, and citizen
    For purposes of this chapter—
    (1) State
    The term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa.
    (2) United States
    The term “United States” when used in a geographical sense includes the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa. An individual who is a citizen of the Commonwealth of Puerto Rico (but not
    otherwise a citizen of the United States) shall be considered, for purposes of this section, as a citizen of the United States.

    Alfred… the term “United States” also means “a Federal corporation”, as defined in § 3002 (15) (A) of Title 28, Judiciary and Judicial Procedure, Part VI -Chapter 176, Subchapter A.

    § 3002. Definitions
    As used in this chapter:
    (1) “Counsel for the United States” means—
    (A) a United States attorney, an assistant United States attorney designated to act on behalf of the United States attorney, or an attorney with the United States Department of Justice or with a Federal agency who has litigation authority; and…
    (15) “United States” means—
    (A) a Federal corporation;

    Alfred… according to the United States Code, Title 28, § 1746, there are only two (2) forms in which to verify an oath. Form “(1)” is for those individuals “without” the United States, and form “(2)” is for persons “within” the United States.

    §1746.
    “Unsworn declarations under penalty of perjury. Wherever, under any law of the United States or under any rule, regulation, order, or requirement made pursuant to law, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may, with like force and effect, be supported, evidenced, established, or proved by the unsworn declaration, certificate, verification, or statement, in writing of such person which is subscribed by him, as true under penalty of perjury, and dated, in substantially the following form:
    (1) If executed without the United States: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).
    (2) If executed within the United States, its territories, possessions, or commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).”

    Alfred… now, here is where the problem begins:

    Internal Revenue tax forms only offer form “(2)”, which is specifically for oaths executed “within the United States”. I have previously made a declaration executed via form “(1)” If I were to now file a tax return signing form “(2)”, that would automatically trigger a perjury violation.

    QUESTION: How can I lawfully (or even legally) file a tax return without violating the law? Can the IRS force me to break one law, in order to comply to their law? That appears to violate the 5th Amendment, as well as other gauranteed Liberties. Can you justify me breaking one law (Title 28) in order to comply to another (Title 26)?

     
  17. Bobby

    November 14, 2010 at 9:24 AM

    Howdy Albert. Here is something you and other readers might find at least interesting if not useful.

    Here in Arkansas the unauthorized practice of law is prohibited by ARKANSAS JUDICIARY, Rule 5.5. However (unknown to the average citizen), that law only pertains to LAWYERS!

    In each and every section and clause of Rule 5.5 the only person(s) subject therein are licensed LAWYERS! Below are the first two paragraphs as example:

    “(a)  A LAWYER shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. ”
    (b)  A LAWYER who is not admitted to practice in this jurisdiction shall not: . . .” 
     
    In each of the following 10 paragraphs of Rule 5.5 ((a) through (d)), only a “lawyer” is mentioned as the subject of the Rule (not a non-lawyer.)

    So, what does the term “Practice law” even mean? Well, actually… there is no legal definition given in BLACK’s law dictionary. In a 1959 Supreme Court case involving the Arkansas Bar Association, the Supreme Court shed light on this issue as follows:

    “Research of authorities by able counsel and by this court has failed to turn up any clear, comprehensible definition of what really constitutes the practice of law. Courts are not in agreement. We believe it is impossible to frame any comprehensive definition of what constitutes the practice of law. Each case must be decided upon its own particular facts.–The practice of law is difficult to define. Perhaps it does not admit of exact definition.” (Arkansas Bar Association v. Block, 323 S.W.2d 912 (1959).

    So, can non-lawyers assist other people in court? According to three (still) standing cases determined by the U.S. Supreme Court, YES. Read the decision as follows:

    “Members of groups who are competent non-lawyers can assist other members of the group achieve the goals of the group in court without being charged with “Unauthorized practice of law.” (NAACP v. Button, 371 U.S. 415; and United Mineworkers of America v. Gibbs (383 U.S. 715); and Johnson v. Avery 89 S. Ct. 747 (1969).

    Albert – check your own State statute pertaining to Unauthorized practice of law and see if they also only apply to licensed “lawyers”.
    Bobby G

     
    • adask

      November 14, 2010 at 9:08 PM

      Hi Robby D,
      I much appreciate all of your comment–except your reference to “Albert”. I presume you were directing the comment to me, and my name is “Alfred”.

      Did you get that, “Robby”?

      No biggee.

      Alfred Adask

       
      • Bobby

        November 15, 2010 at 1:11 PM

        Yes I did get that, Alfred, and please accept my appology. I have no excuse. I know how important names are.

        I have been doing some research on my State’s law concerning contempt of court laws. Municipal court judges here in Arkansas are real good at threatening non-lawyers with contempt of court charges, and the intimination works! However, seldon (if ever) does the judge actually charge a defendant with such. I wondered why. After some research I believe I have found a nugget. This may only apply to the Arkansas law, but here is my findings. Courts of no record are powerless to criminally punish anyone for contempt of court. Here is the State statute:

        § 16-10-108. Contempt.
        (a) EVERY COURT OF RECORD shall have power to punish, as for criminal contempt, persons guilty of the following acts and no others:
        (1) Disorderly, contemptuous, or insolent behavior committed during the court’s
        sitting, in its immediate view and presence, and directly tending to interrupt its
        proceedings or to impair the respect due to its authority;
        (2) Any breach of the peace, noise, or disturbance directly tending to interrupt its
        proceedings;
        (3) Willful disobedience of any process or order lawfully issued or made by it;
        (4) Resistance, willfully offered, by any person to the lawful order or process of
        the court; and
        (5) The contumacious and unlawful refusal of any person to be sworn as a
        witness and when so sworn a similar refusal to answer any legal and proper interrogatory.
        (b) (1) Punishment for contempt is a Class C misdemeanor.
        (2) A court shall always have power to imprison until its adjournment.
        (3) When any person is committed to prison for the nonpayment of any such fine,
        he or she shall be discharged at the expiration of thirty (30) days.
        (c) Contempts committed in the immediate view and presence of the court may be
        punished summarily. In other cases, the party charged shall be notified of the accusation
        and shall have a reasonable time to make his or her defense.
        (d) (1) Whenever any person is committed for a contempt under the provisions of this
        section, the substance of his or her offense shall be set forth in the order or warrant of
        commitment.
        (2) Nothing in subdivision (d)(1) of this section shall be construed to extend to
        any proceedings against parties or officers, as for contempt, for the purpose of enforcing
        any civil right or remedy.
        (e) A person punished for contempt under subsections (a)-(d) of this section shall,
        notwithstanding, be liable to an indictment for the contempt if the contempt is an
        indictable offense, but the court before which a conviction may be had on such an
        indictment shall, in forming its sentence, take into consideration the punishment
        previously inflicted.
        History. Rev. Stat., ch. 43, §§ 37-42; C. & M. Dig., §§ 1484-1489; Pope’s Dig., §§ 1784-
        1789; A.S.A. 1947, §§ 34-901 — 34-906; Acts 2005, No. 1994, § 410. Amendments. The 2005 amendment rewrote (b)(1); inserted “or she” in (b)(3); and inserted “or her” in (c) and (d)(1).

        CONCLUSION: As per the Code, a non-court of record (Municipal/City Court) has no power to punish for contempt of court.

        You and others might wish to check your own laws/rules concerning such.

        Later/Bobby

         
  18. Bobby

    December 2, 2010 at 4:45 PM

    Most Of Us Never Had Any Constitutional Rights!

    Al,
    I have read the The U.S. Constitution numerous times, some portions more than others. Recently I read the first paragraph again, and something hit me like a ton of bricks. The Constitution that does NOT apply to most Americans living today! Read the first paragraph carefully.

    “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to OURSELVES and our POSTERITY, do ordain and establish this Constitution for the United States of America.”

    The two key words to focus on are “OURSELVES”, and “POSTERITY”. The word “ourselves” specifically indicates the founding fathers, and the people living in the several States during that time period (September 17, 1787).
    The word “Posterity” is defined by BLACK’s law dictionary as meaning: “All the descendants of a person in a direct line to the remotest generation.”.

    My ancestors migrated to America from England. Unfortunately, none of them arrived here until the mid 1800′s.

    CONCLUSION: If you and I had no kinfolks living in the several States during the writing and adoption of the Constitution, then we are not a party to the Constitution and therefore have no claim to any Constitutionally guaranteed rights.

     
  19. adask

    December 2, 2010 at 6:59 PM

    First, it originally presumed that when your parents, or your parent’s parents, or your great-grandparents, etc. emigrated to this country, they were lawfully naturalized as citizens and/or “adopted” as kin to the actual, blood-line posterity.
    But it’s not clear that that presumption still applies today.
    For example, it’s apparent that illegal aliens cannot be citizens of the United States and/or naturalized/ “adopted” members of the “posterity”. However, thanks to the 14th Amendment, if those illegals give birth to children in the “United States,” those children are presumed and declared to be “citizens of the United States”.
    The whole issue is complicated by the fact that the term “citizen of the United States” as found in the body of the Constitution (ratified A.D. 1789) meant citizen of one of the several States of the Union. The term citizen of the United States as found in the 14th Amendment (A.D. 1868) refers to citizens of a singular/national “United States”.
    So far as I can see, you don’t want to be a 14th Amendment “citizen of the [singular] United States,” but you do want to be a “citizen of the [several] United States” (member-States of the Union).
    But the issue becomes not only more complicated but potentially more interesting when you understand that “The Organic Law of The United States of America” was declared in the Revised Statutes of A.D. 1873 and A.D. 1875 to include 1) “The Declaration of Independence” (A.D. 1776); 2) The Articles of Confederation (A.D. 1781); 3) the Northwest Ordinance (A.D. 1787) and The Constitution of the United States (A.D. 1789). The congressional declaration of “The Organic Law of The United States of America” gave no indication that the Constitution repealed or replaced any of the preceding three documents. Thus, the Declaration, Articles and NW Ordinance are every bit as much the law today as the Constitution.
    This conclusion is supported by the Preamble to the Constitution which declared the fundamental purpose of the Constitution (A.D. 1789) to “form a more perfect Union”. That Union was created by the Articles of Confederation in A.D. 1781. The fact that the Constitution did not create a “new and improved” Union, but instead merely made the existing Union that much more “perfect” is evidence that the Founders recognized the Constitution as one of a series of organic law documents–not the “one and only” as is usually supposed today.
    I strongly suspect that the Constitution has become dangerous to the American people in that the federal government (or what passes for such) no longer presumes us to be the People of the States of the Union, but rather inhabitants of TERRITORIES under Article 4 Section 3 Clause 2 of the Constitution and thus subject to the absolute and unlimited authority of Congress.
    So–assuming the theory that the gov-co now operates on the presumption that we live on territories rather than within State of the Union–what if you (like any common illegal alien) were not a “citizen of the United States” as found in the 14th Amendment or even in the body of the earlier (A.D. 1789) Constitution? What if you were NOT one of the “posterity” referenced in the Preamble and/or a naturalized “citizen of the United States”? Would you nevertheless be entitled to some or all of the rights, privileges and immunities declared in one or more of the three previous “organic” documents (which are STILL part of the Organic Law)?
    I don’t know. But I can easily imagine that argument being advanced.
    And given the disabilities that currently attach to US “territorial” citizenship under the current Constitution, I can imagine that not being a member of the “posterity” might be an advantage. I.e., not being a member of the “posterity” might cause you to be exempt from whatever obligations and disabilities might be imposed by the Constitution while still leaving you with a legal claim under 1) the Declaration, 2) the Articles, and 3) the NW Ordinance–and perhaps your State’s constitution.
    Curiouser and curiouser, hmm?

     
  20. Bobby G

    December 5, 2010 at 12:34 PM

    Al,
    I just watched / listened to an enteresting (unlisted) video on YouTube titled “Standing in Court for my first time”. The accused kicked the judges butt, and the case was dismissed. I am not exactly sure why, but the accused refused to accept the strawman NAME, and repeatedly asked for Remedy. I feel sure that with your training and understanding of law and fiducairy, that if you digested the audio portion of the video you will discover why the judge couldn’t gain subject matter jurisdiction and therefore had to tell the accused “Have a good day, sir.” The accused was not very smooth, and scared, but he stood firm and didn’t let the judge bluff him. That video can only be accessed via the following link > http://www.youtube.com/watch?v=CwyfSBKs78Q

    I am looking forward to your respected observations & comments.
    Sincerely, Bobby G

     
    • Adask

      December 6, 2010 at 10:37 AM

      I’ve listened to the video. I absolutely applaud the subjects resistance to the court and governmental power.
      But–as with all such resistance–you have to take these kinds of anecdotes with some salt. They are EVIDENCE that it’s possible to resist governmental authority. They are EVIDENCE that, in this particular case, the subject was able to defeat the court’s claim of jurisdiction.
      But this anecdote is not PROOF that another man or woman using the same strategy in another court will achieve the same result.
      Every confrontation in the courts is a crap shoot because there are unpredictable “human elements”. If the judge is too ignorant to understand what the defendant is doing/arguing, the defendant will lose. If the judge is too vicious to give a damn that the defendant’s defense is valid, the defendant will lose.
      On the other hand, if the judge is in a hurry to get off the bench and go have a “quickie” with the court clerk, the judge may allow a defendant to “win” just to get rid of him.
      In the video in question, I believe the defendant did a very good job. I believe his arguments are fundamentally sound. But his primary advantage was his courage and willingness to fight. No matter how solid your understanding of the law, the court room battle is more like an alley fight than a debate. It takes at least as much courage to win as it takes knowledge.
      If you have courage without knowledge, you’ll lose. If you have knowledge without courage, you’ll lose.
      The video shows a man who had both sufficient knowledge AND sufficient courage.
      He won this fight. That’s great. If others can summon up a similar degree of knowledge and a similar degree of courage, they can also increase the PROBABILITY that they may also win. But there’s always a chance, no matter how smart or bold you may be, that you can lose.
      The courts are not debating societies. They are arenas for people engaged in combat. To win, you need 1) knowledge; 2) courage; and 3) the ability to think on your feet.
      Perhaps the most dangerous disability facing may litigants is the presumption that the “fight” will go in a particular sequence. First, I’ll hit with two, quick left jabs–then, I’ll knock him out with a right uppercut. Nice theory. But if he (the judge) throws the first (unexpected) punch, or blocks your first left jab, he can put you off-balance and your whole “plan” may fold like an accordion. Then what?
      Then, you’ve got to be able to stay cool, react appropriately, and improvise.
      The man in the video did a great job. He had knowledge, courage, and could think on his feet. By itself, knowledge is only a fundamental beginning–not a total solution.
      It’s encouraging, even inspiring to see what the man in the video achieved. It will undoubtedly inspire others to try to do the same. But his performance cannot be presumed to be a “final solution”. It was merely a good fight.

       
  21. Bobby G

    December 14, 2010 at 3:39 PM

    Al,
    One of the biggest court issues throughout America involves traffic tickets. Arkansas is no exception.

    Article VII of the Arkansas Constitution guarantee a jury trial in “all cases”. However, when someone appears in traffic court and pleads “not guilty”, they are not given a jury trial. They are told that a speeding offense is merely an “infraction” (a misdemeanor where only a fine is imposed by the court), and then told that if they lose their case at the non-jury trial, they can then appeal the conviction and get a jury trial.

    Judges and prosecutors are also bound by rules, including Rule 31.3 of the Arkansas Rules Of Criminal Procedure, which describes an infraction with respect to a jury trial as follows (in part):

    “In misdemeanor cases, where only a fine is imposed by the court, a jury trial may be waived by the defendant’s attorney…”

    Let us use a little simple logic. If a jury trial “may be waived” in cases involving infractions, that means a jury trial IS available for infractions. In addition… if a jury trial may be waived, then it may also NOT BE WAIVED!

    I’m not a Perry Mason or Sherlock Holmes, but it sure appears that if a citizen has a Constitutional Right to a jury trial in all cases (Article 7), and if the court must follow its own rules of criminal procedures (31.3), then a citizen can demand (not request) a jury trial. If denied, one should suspect that the so-called “court” is what is legally termed a “kangaroo court”.

    Al. The trick is, of course, compelling the corrupt judges and/or prosecutors to obey and follow their own laws.

    Bobby G

     
  22. adask

    December 14, 2010 at 7:35 PM

    Your right to a jury trial attaches to a JUDICIAL trial. I strongly suspect that traffic tickets are decided in ADMINISTRATIVE hearings. If so, that may be why access to juries is diminished.

    On Texas, if you go through the municipal “court’s” “administrative hearing,” you’ll be found guilty about 98% of the time–regardless of whatever facts or arguments you care to advance. The municipal court’s job is to try to collect the money for their corporate employer and they do just that almost always.

    Then, if you don’t like the result of the ADMINISTRATIVE hearing in the muni-court, you can “appeal” to the COUNTY court. The COUNTY court is probably the first “real” (judicial) court to hear your case.

    This “appeal” process may be diabolically brilliant from this perspective: the municipality that issued the ticket probably doesn’t have any constitutional jurisdiction over the defendant; the municipality probably can’t lawfully initiate a case against the defendant in a true court of law–therefore the municipality appears to initiate the case in the municipal/kangaroo court you’ve mentioned.

    Then, if you don’t consent to the phony-baloney result at the municipal court, YOU must “appeal” to the COUNTY court in a “trial de novo” (brand new trial). I strongly suspect that this isn’t really an “appeal” or even a “brand new trial” in the sense of being a second trial, but rather the first real trial that you will have had in a real court.

    If I’m right, the diabolical brilliance of this scheme is seen in asking How did the COUNTY court get jurisdiction to hear the case for the first (“real”) time? YOU gave jurisdiction to the COUNTY court by initiating what you believe to be an “appeal” that was, quite probably, the first REAL trial in a JUDICIAL court.

    Get it?

    This is a brilliant trick in that the “system” appears to trick YOU into initiating the case at the COUNTY court level. Without your cooperation, the municipality that issued the ticket might never have had standing and sufficient “jurisdiction” to initiate a “real” trial in a judicial court.

    In any case, I’ve observed that once you appeal from the muni/administrative hearing to the country court, you will (again) usually be found guilty.

    However, if you have all your i’s dotted and t’s crossed, if you appeal AGAIN to a true appellate court, that court will tend to dismiss the conviction against you.

    How many people take their traffic tickets to municipal court? 1 in 500? How many of those “appeal” to the county court? 1 in 100? And how many of those appeal again to a real appellate court? 1 in 100? You can see that the “system” is running a pretty tight net. Not many escape liability for paying “fines” to the municipalities that issue traffic tickets. Including the handful who are found not guilty at the administrative- and county-court levels, I’d bet that no more than 1 in 500–maybe 1 in 1,000–successfully fights a traffic ticket.

    The “trick” in all of this is to control the traffic ticket/notice from the git-go. If you can control the venue on the traffic ticket, you may be able to preempt the whole process.

     
  23. Bobby G

    January 11, 2011 at 1:29 PM

    Al,
    Names written with all caps is not proper. Capitalization is the difference between helping your Uncle Jack off a horse, and helping your uncle jack off a horse.

     
  24. Bobby G

    February 8, 2011 at 5:59 PM

    Hi Al,
    Better check your family tree and see if you are related to James Madison or any of the other 54 signers of the Constitution, because if you are NOT… then you have no guaranteed Constitution rights. For proof, read the Preamble as follows:

    “We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

    The “People” were the 55 delegates. Who did they ordained and established the Constitution for? They wrote “to ourselves and our Posterity” (i.e. relatives). In simple words, it was not established for neither present or future private citizens! Here is the judicial nail in the proverbial coffin.

    In the case of Padelford, Fay & Co. vs. The Mayor and Aldermen of the City of Savannah. 14 Georgia 438, 520, the U.S. Supreme Court made the following decision:

    “But, indeed, no private person has a right to complain, by suit in court, on the ground of a breach of the Constitution, the Constitution, it is true, is a compact but he is not a party to it.”

    No private person (unless they are related to one of the 55 signers) is a party to the Constitution, and therefore have no guaranteed Constitutional rights! Sorry.

     
  25. Adask

    February 8, 2011 at 9:23 PM

    First, the signers of the Constitution essentially signed the document as part of the “Resolution Transmitting the Constitution to Congress” of Monday, September 17th, A.D. 1787. The 55 signers did not “validate,” “authorize” or ratify the Constitution. The 55 signers merely agreed to its first draft and proposed that that draft be ratified by the people of the States of the Union (“The United States of America”).
    That first draft was then sent to the Congress for the purpose of being subsequently submitted “to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification; . . . .”
    The Constitution was ratified by the Conventions of 9 States of the Union by A.D. 1789 and become operative.
    The first point is that the Constitution had no legal authority until it was ratified by the “Conventions of nine States” (see Article VII of the Constitution). Note that these “Conventions” were not even State legislatures–they were not “conventions” of 55 signers–they were “Conventions” of the People.
    The People ratified the Constitution–not the 55 signers. Therefore any notion that my claim of rights under the Constitution is invalid unless I’m a direct descendant of one of the 55 Signers is false.
    Second, however, Article VII of the Constitution does declared that once the first nine States of the Union ratify the Constitution, that Constitution will be “Establish[ed] . . . between the States so ratifying the Same”. Thus, The Constitution was not “established” between the People, per se, but between the STATES of the Union. The STATES are the apparent “parties” to the Constitution.
    This may explain why the court ruled that “no private person” is party to the Constitution. The States of the Union are the parties to the Constitution. The “private persons” are not. Whether the “people” (acting in a political capacity are parties (while the “persons” are not) is not known to me.
    But the People are absolutely parties (as individual men and women) to the constitutions of the States of the Union.
    Our God-given, unalienable Rights (declared in the “Declaration of Independence”) are absolutely guaranteed by 1) each of the Constitutions of the States of the the Union; and 2) the 9th Amendment to the Constitution of the United States.
    Sorry.

     
  26. Bobby G

    February 11, 2011 at 4:44 PM

    Thanks Al, as always you have a way of making things clear and logical. Here is one for you to consider.

    Is Sarah Palin lawfully qualified to be President? According to the Constitution, NO.

    Back in 1786, a group consisting of 56 men wrote the U.S. Constitution. One year later it was signed and ratified.

    As the years passed by, some women realized that the Constitution was NOT ordained and established for their gender. Only specific persons were allowed to serve in the United States Congress, or be President, or Vice President. Articles 1 and 2 refers to the sex of those qualified persons by the terms “he”, and “him”, and “his”. The terms “she”, or “her” is not written in the Constitution, but women are indicated by the use of the word “sex”in the 19th Amendment.

    In 1866, 121 years after the Constitution was ratified, the 14th Amendment was passed, It gave all citizens born or naturalized in the United States equal protection of the laws, privileges and immunities. Did that Amendment give women the right to serve in Congress or to become President? You be the judge.

    In 1917, Jeanette Rankin became the first woman to be elected to the United States Congress. Women may have been given the privilege to serve in Congress, but apparently they were not given the right to become President. Here is why.

    In 1967, the Twenty-fifth Amendment was ratified. In Section 1, Clause 3, finds the President still being referred to by the male terms “he” and “his”. In fact, in the third Clause, the President is referred to as “he” and “his” a total of 4 times.

    Conclusion. If the U.S Constitution is the Supreme Law of the land, and if we are required to follow the letter of the law, then legally the President must be a man, because “he” is described in the Supreme Law of the land. As for Sarah Palin being President… she cannot, because her sex does not meet the requirements of the Constitution.

     
  27. Adask

    February 11, 2011 at 5:46 PM

    As the King of Siam once told Anna, “It is a puzzlement.” Technically, there may be an argument that women can’t be President, but that argument is so “politically incorrect” that I don’t expect to personally support it.
    After all, if we can elect an Kenyan to be President, why not a woman?

     
    • Bobby Goodwin

      February 28, 2011 at 3:59 PM

      Hi Al.
      Recently a fellow beat a traffic charge by using an unusual (for me) technique, that only took a couple minutes in court. Here is the transcript: (See if you can explain why the charge was dropped.)

      judge: “So, Mr. File, are you here today to plead not guilty.”

      Me: “Your Honor, I have not pled anything.” (my way of saying have not, will not be doing it now because I know you do not have jurisdiction now unless I screw up and give it to you.)

      I waited 2 Mississippi:

      Me: “Your Honor, may I ask the Court a question?”

      judge: “Yes, you may.”

      Me: “Do pleadings perfect jurisdiction?”

      Here, it was as though I farted in church on a wooden bench on the front row. Pussel-gutted prosecutor almost had a heart attack and started blurting out ‘jurisdiction’ stuff cause he had some more money to collect and they didn’t see this coming.

      Judge was taken aback and blurted,…

      judge: “Yes.”

      I waited 2 Mississippi:

      Me: “Therefore, your Honor, may I MOVE the court to dismiss the charges, immediately?”

      judge had his head down writing. He needed a story like the prosecutor did. He said,

      judge: “Yes, you may. The officer is not present anyway.”

      Officer WAS present in street clothes. judge needed a story for the other people cause they were domestic charges and didn’t have an officer. Reason I know that is because I listened to all the attorneys talking with them before. I just sat there with my head down like I was napping and listened so hard I could hear the mice in the damn wall. I had everybody pegged. Lambs to the damn slaughter for Fed Res Notes.

      10 seconds went by, maybe.

      judge said: “You are free to go, Mr. File. Have a nice day.”

      I walked out through 5 attorneys and 2 police officers sporting 9 MM’s and Tasers like I was Barac, ‘Insane,’ Obama.

      Whole thing took less than 30 words from me. Saved me $168 Federal Res Notes.

       
  28. american home mortgage servicing general counsel

    April 5, 2012 at 12:20 PM

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  29. career

    December 11, 2012 at 9:21 AM

    Could hardly have argued it significantly better myself –
    and I’m a law student!

     

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