Some critics on the internet say that the Tierra Limpia/Deo Vindice program of mortgage redemption is a scam or a fraud. The people who say this are, for the most part, ignorant trolls who can’t be bothered to keep up with what is becoming a national waive of Anti-foreclosure decisions by both State and Federal Courts (but mostly Federal, especially in the South and East). There are so many cases about the abuses of securitized mortgage now that the only “scammers” really are those licensed attorneys whose close relationship with Banks, other mortgage finance institutions or the Federal Government are so close and tight that they disparage those working to dismantle the fraud and restore private property. I have many grievances against the “integrated state bar” monopolies on the practice of law which I have articulated in ongoing work in which I have cooperated with former Montana State Senator Jerry O’Neil of Kalispell and Columbia Falls by Glacier National Park. I continue to think that Jerry is one of the brightest (if totally unsung and unrecognized) luminaries in modern American Constitutional and common law jurisprudence. My primary grievance against the State Bar monopoly is that it is a fraud: it is “sold” to the public as a means of assuring quality of legal representation, when it is in fact a barrier to creative thinking, a guarantee of employment for conformist, mediocre legal talent, and operates as an unconstitutional obstacle to all expression-related First Amendment rights including freedom of speech, freedom of assembly, freedom to petition the government for redress of grievances. It is the licensed attorneys who have developed such pernicious doctrines, unknown to the Constitution and Common Law, as “injury based standing” to file Federal Complaints, rather than Petitions for Redress of Grievances (the word “grievance” used in the Constitution does not imply any personalized definition of injury as a requisite to “standing” to bring suit) on the one hand and “judicial and prosecutorial immunity” on the other. These latter doctrines of official immunity (which lawyers often try to extend to themselves, with some success, claiming status as “officers of the court”) permits judges and prosecutors and some lawyers, especially attorneys or guardians ad litem, to trample on the Constitution and the rights of the individual without fear of any sort of liability or accountability. In any event, the Rivernider case is one of which I am particularly proud, at least as regards its conception if not its implementation, because it addresses all these issues and more, simultaneously. If ONLY we had a licensed attorney to represent us….if ONLY Mr. Yosef Taitz had not threatened and terrorized his poor innocent and oh so unworldly wife….if ONLY someone would step forward and lead the charge….because a class action is going to be difficult to certify without an attorney. But in the meantime, here is what we have submitted on November 12, 2009, in Rivernider v. US Bank, Case No. 09-91255-CIV, now pending in the United States District Court for the Southern District of Florida before the Honorable William P. Dimitrouleas.
DO ASSIGNMENTS OF RIGHTS CONSTITUTE FRAUDULENT TRANSFERS?
Perhaps the most disturbing portions of the Motion to Dismiss and Response in Opposition to Plaintiff’s Application for Temporary Restraining Order filed on behalf of Defendant U.S. Bank’s (hereinafter “Defendant”) are those which attack Plaintiff Lincoln’s standing and allege that Robert & Marsha Rivernider’s transfer of their rights to Lincoln by assignment constituted some sort of “fraud.” (See Defendant’s Response in Opposition to Plaintiffs’ Application for TRO, Part B, at pages 6-8 of Document filed September 14, 2009 and Part C of Defendant’s Motion to Dismiss filed September 24, 2009, at page 7-10.)
To begin with, the Court should note that Defendant U.S. Bank utterly fails ever to define the term “Fraudulent Transfer” or to cite any statutory or case-law precedential authority for applying the term to Robert and Marsha Rivernider’s extremely open and above-board transfer of all of their rights, title, and interest in their property, but assignment and grant of power for attorney to Charles Edward Lincoln. And indeed, happily for the Plaintiffs in this case, Lincoln received not only a transfer of title by deed but also an assignment of rights and obligations from the Riverniders, and this assignment of rights and obligations was recorded along with the simple transfer of title by deed in the Palm Beach County records, along with a power of attorney (see Exhibits C and D).
Equally happy for Plaintiffs is a trio of cases decided in the past 16 months, three courts whose decisions are not only relevant and persuasive but binding here (namely the U.S. D.C. for the S.D. Florida, Florida Supreme Court, and U.S. Supreme Court) have rendered decisions in three cases dealing with assignment of contractual and statutory rights (such as those at issue here) which affirm the right and power of parties to assign their rights and obligations obtained or incurred during the course of litigation.
First and closest to this case in time and venue, in Goldberg v. Paris Hilton, the United States District Court for the Southern District of Florida (Miami Division) ruled that RIGHTS TO SUE under a contract could be assigned even where the right to assign the obligations arising from and pursuant to the contract itself might not be subject to assignment (as, for example, in the case of personal services contracts, which are normally non-assignable under general common law principles of contractual rights). Case Number 22261-CIV-MORENO, 2009 U.S. Lexis 41846, May 18, 2009). Defendant U.S. Bank nowhere asserts that the Riverniders’ rights and obligations were unassignable, either as a matter of general or specific contract law, or any specific contractual provisions. Rather, U.S. Bank makes a great deal of noise about Plaintiff Lincoln taking with knowledge of U.S. Bank’s claims and failure to pay more than nominal consideration for his rights, so as to deny Lincoln status as a “bona fide purchaser for value.” Of course, this is irrelevant since Lincoln never claimed status as a bona fide purchaser for value without notice. Defendant U.S. Bank simply ignores the question of the Riverniders’ assignment and power of attorney granted to Lincoln with regard to all factual claims, and since U.S. Bank does not contest the validity of the ASSIGNMENT to Lincoln, the Court should simply rule that the assignment is valid as a matter of law.
In support of the validity of the Riverniders’ assignment of claims or choses in action, Plaintiffs would cite two additional cases, one from the Florida Supreme Court and the other from the United States Supreme Court. The case of Wachovia Insurance v. Richard L. Toomey, etc., 994 So.2d 980, 2008 Fla. LEXIS 1644, 33 Fla. L. Weekly S 770 (Florida 2008) is parallel to the present matter in that a loser in underlying litigation assigned not only the judgment for liability against it, but all its rights to a third-party who was not originally a party to the litigation, namely its insurer. The Riverniders have assigned all of their rights and liabilities to Lincoln, and the fact that Lincoln did not pay a significant amount for the privilege of assuming all of their liability pursuant to a judgment is, at the very least, understandable.
The Wachovia Insurance decision is particularly significant for its wide-ranging analysis of Florida law concerning assignment of rights. “Causes of action based on a contract or a statute can be assigned.” 994 So.2d at 988, citing Forgione v. Dennis Pirtle Agency, Inc., 701 So.2d 557, 559 (Florida 1997). Consistent with the Southern District’s holdings in the 2009 Paris Hilton case cited above, “purely personal” contracts for personal services (as of a famous personality or entertainer, for example) like “purely personal” tort claims for medical malpractice or intentional infliction of emotional distress are likewise unassignable. 994 So.2d at 988-9. There is nothing even remotely personal about the obligation to pay a mortgage. Either the mortgage is valid or it is not. Neither is there anything even remotely personal about a corrupt state court system controlled by one class of parties to a certain widespread type of litigation or another. Either the Florida Courts are beholden to the mortgage finance industry or they are not. Either the Florida Courts are so riddled with corruption that they cannot be trusted to hear mortgage foreclosure cases fairly at all, or they are not (so pervasively corrupt and unfair). For purposes of a Motion to Dismiss under 12(b)(6), where the Plaintiffs have alleged a level of corruption in the Florida Courts analogous to the pre-civil rights reformed Courts of Louisiana described in the very last instance in which the U.S. Supreme Court actually affirmed Federal injunctive relief against state courts in Dombrowski v. Pfister, 380 U.S. 479; 85 S.Ct. 1116; 14 L.Ed.2d 22 (1965), this U.S. District Court is required to accept the allegations of the Plaintiff’s complaint as true.
The Plaintiffs’ complaint provides sufficient specificity in that it is shown that in 2005, Florida Judges were still willing to enforce the common law against Mortagees while at the present time the Florida Courts are enforcing a tidal waive of mortgage foreclosures which are plainly illegal under the terms of Florida law applied by Judge Walt Logan a mere four years ago in August 2005. There was no foreclosure epidemic in 2005, but today there is a foreclosure epidemic, which constitutes an arguably greater threat to national stability and public welfare than the southern civil rights crisis of the 1950s and 60s, when the worst that could be said is that positive change towards civil rights took place too slowly. Here, a negative trend away from civil rights in the deprivation of property without due process of law has moved too fast towards the extinction of private property, and now threatens the entire American way of life by the utter and complete destruction of private property in favor of corporate-governmental partnerships in owning, renting, and allocating homes to favored individuals.
On page 8 of Defendant’s Motion to Dismiss, U.S. Bank has asserted, “there is no contractual relationship between Plaintiff LINCOLN and Defendant U.S. Bank or its assignors in this matter and there is no benefit of the mortgage that can be transferred to LINCOLN as a third party.” This statement is quite remarkable for several reasons. First, U.S. Bank admits that its right to sue in this case derive from assignment (even though no assignments of right have ever been recorded from ANY party to U.S. Bank in the Palm Beach County records, unlike the Riverniders’ express and detailed assignment of rights to LINCOLN). Second, Defendant U.S.Bank is wrong that “there is no benefit of the mortgage that can be transferred to LINCOLN as a third party. This statement without citation or explanation is obviously false!
The “benefit of mortgage” that can be (and was in fact) transferred to LINCOLN not only includes the right to use and enjoy the property (as Lincoln is currently doing by renting it to the Riverniders) but also the right to collect and retrieve any amounts due and owing from fraudulent mismanagement of the note, including fraudulent collection of payments from the Riverniders, and ultimately includes also the right to retrieve the original note from U.S. Bank, National Association, on showing either that the note has been paid in full or that it was obtained and/or maintained by fraud. Let it never be forgotten that, according to the definitions set forth in 12 U.S.C. §1813(l), a promissory note accepted by a bank is a “deposit in cash” and LINCOLN has filed suit to collect from U.S. Bank all liquidated damages to which he might be entitled under this paragraph. Suits for Collection of Debt are always assignable!
As the United States Supreme Court ruled in the third and oldest of the triad of recent cases supporting Lincoln’s standing to sue in this case, there is no question that assignment of collection rights creates standing justiciable under Article III in the Federal Courts. Sprint Communs. Co., L.P. v. APCC Servs., 128 S. Ct. 2531, 171 L.Ed.2d 424, 76 U.S.L.W. 4542, 21 Fla. L. Weekly Fed. S 411 (June 23, 2008).
The Supreme Court simply could not have been more emphatic about the power to assign rights and duties not merely under contracts but under judgments arising from contracts. Speaking historically, the Court commented, courts of equity would simply permit an assignee with a beneficial interest in a chose in action to sue in his own name. They might, however, require the assignee to bring in the assignor as a party to the action so as to bind him to whatever judgment was reached.” 128 S.Ct. 2536, 171 L.Ed.2d 432 (citations to 17th-18th Century English Law omitted)(“by the beginning of the 18th century, “it became settled that equity would recognize the validity of the assignment of both debts and of other things regarded by the common law as choses in action”).
Even claims against the legitimacy of a state court judicial system is recognized by common law as a “chose in action!” Further, the Court held, “Courts of law, meanwhile, would permit the assignee with an equitable interest to bring suit, but nonetheless required the assignee to obtain a “power of attorney” from the holder of the legal title, namely, the assignor, and further required the assignee to bring suit in the name of that assignor. “ Id.
The Court should recognize how fastidiously the Riverniders and Lincoln have followed all the mandates of the United States Supreme Court in construing and applying the ancient common law of England to modern Article III Courts of the United States of America; the Riverniders have executed both grants of assignment and given power of attorney to Charles Edward Lincoln, satisfying the traditional common law procedural requirements for litigation of assigned claims, and so going far beyond the modern formalities of assignment held to be 100% necessary for assignments to be valid as construed under the Sprint Communications decision.
STANDING, JUSTICIABILITY, AND FAILURE TO STATE A CLAIM
Defendant U.S. Bank does not cite a single case or statute in support of Part (A) of its Motion to Dismiss entitled “Failure to State a Claim against U.S. Bank” (found on a single page 4 of Document 9 in the U.S. District Clerk’s Docket Report for this case filed on 9-24-09). Nor are any cases nor statutory authority cited in Part (C) of the Defendant’s Response in Opposition to Plaintiffs’ Application for Temporary Restraining Order at pages 5-6 of the Document of that title signed by Defense attorney for U.S. Bank, National Association, Beth A. Norrow of Butler & Hosch, P.A. on or about September 14, 2009.
In both documents, Defendant U.S. Bank seems to suggest that the State of Florida should be joined as a necessary party, but does not seek to do so. Plaintiffs contend that while state judges may have immunity to charges of civil conspiracy and even to charges of denial of the intangible right to honest services established by 18 U.S.C. §1346 (a predicate act under R.I.C.O., 18 U.S.C. §1964(c)) U.S. Bank, National Association has no such immunity, and the immunity of one possible defendant to a R.I.C.O. conspiracy (or any sort of civil conspiracy) does not preclude recovery and collection against the non-immune defendants.
Plaintiffs in fact expressly file this Combined Response to the Court’s Second Order to Show Cause and Response to Motion for Leave to Amend subject to a plea of reservation of right to file Plaintiff’s First Amended Complaint, alleging R.I.C.O. and other matters, within 33 days of the filing of this Response, which is to say not later than December 15, 2009.
With regard to justiciability, raised several times in Defendant’s filings, there is no doubt that this Court has both the legal, declaratory, and injunctive power to render effective relief in this case. Under Dombrowski this court has the power to enjoing ongoing proceedings in State Court if systematic violations of fundamental federally secured civil rights can be established, as alleged, as a direct and proximate result of the application of state court rules of decision having the force and effect of law. Specifically, this Court can as an initial matter declare that the State Court proceedings AS A WHOLE were a nullity initiated by a fraud upon the Court in which U.S. Bank, National Association claimed to be legal title owner, holder in due course, and equitable beneficiary of a note to which it was, in fact a complete stranger, unable to establish eht existence of any “Trust for the C-BASS Mortgage Loan Asset-Backed Certificates”, no grant of trust, no assignment of rights, no chain of title whatsoever.
Second, this Court can receive evidence and may conclude, declare, and enter final judgment that the Mortgage Foreclosure industry has acquired such a stranglehold on the Florida Circuit Court system that mortgage foreclosures must be stopped all together in the Florida State Courts due to systematic bias, corruption, and denial of due process, and impairment of the obligations of contract in violation of the U.S. Constitution and 42 U.S.C. §§1981-1982 (actionable under §§1983 & 1988(a)). Third, this Court can declare and adjudge that a mortgage note, once securitized, has been paid and discharged in full, and that multiple collections would constitute unjust enrichment to the originator. Any of these results are well within the power of this Court to render judgment, and would resolve all disputes between the parties in a final and conclusive manner. (See Exhibit G: MERS Law Review).
Defendant U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE C-BASS MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2006-CBS is named as primary Defendant because that is the name of the bank claiming interest in Plaintiff’s property, despite having submitted claims in Florida State Court which definitively determine that U.S. BANK NATIONAL ASSOCIATION is not in privity with any contract or note to which the Plaintiffs were ever a party.; U.S. Bank is a national banking association with its principal place of business in Minneapolis, Minnesota. U.S. Bank operates in a number of states throughout the United States. U.S. Bank is a subsidiary, parent and owner or otherwise an affiliate of U.S. Bancorp, 800 Nicollet Mall, Minneapolis, MN 55402 as revealed on-line at www.usbank.com.
This Court has Civil Rights Jurisdiction pursuant to 28 U.S.C. §1343, as well as by actions authorized for the protection of property pursuant to 42 U.S.C. §§1981, 1982, 1983, and 1988(a), and it is alleged that the Courts of the State of Florida are so utterly corrupt and controlled by the United States Mortgage Finance Industry as to be incapable of policing the banking industry in the environment of the current mortgage foreclosure crisis and the associated financial meltdown, and that all foreclosure matters should be federalized by judicial fiat.
The Younger v. Harris doctrine of abstention which is so often invoked to override Dombrowski v. Pfister intervention by Federal Courts in State Court actions is utterly irrelevant and inapplicable here. At least with regard to the mortgage foreclosure crisis, the Courts of the State of Florida are utterly incapable of policing themselves and have fallen prey to special interests, in particular the special interests of those who seek to gloss over the horrendous abuses brought on by securitization of mortgages and endorsement of promissory notes “without recourse”—both of which factors have impacted heavily on the posture of the present case.
The Court has jurisdiction over Plaintiffs’ action for declaratory relief pursuant to 28 U.S.C. §§ 2201-2202 (as well as 42 U.S.C. §§1983, 1988(a), and Rule 57 of the Federal Rules of Civil Procedure. Injunctive relief is authorized by 28 U.S. C. §2203 and Rule 65 of the Federal Rules of Civil Procedure and accordingly asks for such relief in a separate Application for TRO. Relief from void judgments obtained by fraud survives without any period of limitations under Rule 60(b)(4) and as an independent action build on the model thereof. U.S. v. Chris W. Beggerly, 524 U.S. 38 (1998) and Christopher v. Harbury, 536 U.S. 403, 122 S.Ct. 2179; 153 L.Ed. 2d 413; 2002 (2002).
Plaintiffs accordingly asserts causes of action against Defendants U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE C-BASS MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2006-CBS predicated on, inter alia, apparent violations of 42 U.S.C. §§1981, 1982, 1983, justifying relief pursuant to 42 U.S.C. §1988(a), as well as the federal Fair Debt Collections Act (“FDCA”), 15 U.S.C. § 1601 et seq. (“TILA”); Regulation Z, 12 C.F.R. § 226 et seq.; Federal Trade Commission Act (“FTC Act”), and 15 U.S.C. § 1961 et seq.
Plaintiffs also reserve their right to amend and to assert derivative claims under Florida Civil Rights and Consumer Protection Statutes, as well as state laws prohibiting Deceptive Trade Practices, among others. In addition, this Court has jurisdiction pursuant to 28 U.S.C. §1343 (Civil Rights) insofar as Plaintiff seeks a declaratory judgment or series of three declaratory judgments pursuant to 42 U.S.C. §§1981, 1982, 1983, and 1988(a), that facially excellent and protective Florida Statutes are being administered in the Florida Courts in such a way that the common law rights to limit collection and enforcement to “holders in due course” and other privileges inherent in the common law doctrine of “privity of contract” have been all but obliterated.
Courts in Florida in cases such as that litigated by the Defendant against Plaintiffs in the state action still pending in the Circuit Court in and for Palm Beach County, Florida under case number CA-08-026061-AW gloss over the “holder in due course” and “privity of contract” doctrines in non-judicial foreclosures, accepting defendant servicer contentions (without any supporting law, precedent, or other authority whatsoever) such as “Defendants fault the complaint’s allegation that an unnamed note holder does not possess the note in that there is no “obligation to produce originals of either the promissory note or deed of trust.”
In fact, the obligation to produce the original note and contract has always been a key requirement of the common law of contracts, expressly upheld by Florida Courts from time immemorial and even during recent history, and this requirement is enshrined by the Florida “Holder in Due Course” statute in §673.3021, although the excuses by which lost notes are re-established under §673.3091 are often no more than ridiculous “the dog ate my homework”-type explanations.
In the state “Foreclosure” case in Palm Beach County (See Exhibit A to the Plaintiffs Application for Temporary Restraining Order, submitted with the Original Complaint in this case on August 28, 2009), U.S. Bank originally “complained for the reestablishment of” an allegedly lost note but then recently (in July 2009) announced without explanation that the note had again been “discovered”. The circumstances of loss and rediscovery were never explained—and in fact they cannot be explained because the requirements of the Florida statutes, aside from possession, namely that the note cannot have been SOLD or TRANSFERRED clearly have been violated by the multiple endorsements made without recourse which do NOT lead to or include U.S. BANK, N.A. (See Exhibit E herein: Endorsed Note).
Diligent research has so far revealed no connection whatsoever between U.S. BANK NATIONAL ASSOCIATION and New Century Mortgage Corporation or Challenge Financial Investors Corporation, the sole parties whose privity with Plaintiffs Robert H. Rivernider and Marsha G. Rivernider can be demonstrated on the face of the documents submitted in state court. It is thus ironic to the point of being hilariously funny that U.S. Bank raises lack of “privity of contract” as a Defense to Charles Edward Lincoln’s suit against them.
The effective abandonment of the common law by the executive and judicial branches did not come about as the result of overt democratically enacted legislative modification of the law, nor pursuant to any official governmental policy of or for the public benefit, but to enable and enrich a favored group which has profited from a non-governmental financial innovation of the late 1970s-80s known as “securitization of debt”, with securitized and bundled “debt” sold on the open market in complete disregard and, in fact, in flagrant violation of all common law (and Uniform Commercial Code) principles of “holder in due course” or “privity of contract”.
“Holder in due course” and “privity of contract” were key elements of common law jurisprudence specifically protected from interference by the state governments under Article I, §10, Cl. 1 of the United States Constitution, except where necessary to protect or advance a compelling governmental interest in the state’s interest of self-protection or emergency exercise of the police power. Cf., e.g., Allied Structural Steel Co. v. Spannaus, Attorney General Of Minnesota, et al., 438 U.S. 234; 98 S.Ct. 2716; 57 L.Ed.2d 727 (1978).
NO RES JUDICATA OR COLLATERAL ESTOPPEL DUE TO NO FINAL DECISION
It is axiomatic that there can be no res judicata or collateral estoppel effect to any litigation which is still ongoing in the original court in which it was brought. Defendant U.S. Bank’s own Motion to Dismiss includes as its Exhibit B the Order denying EMERGENCY relief entered on August 31, 2009, “as an emergency” (i.e., effectively without either prejudice nor any requirement of refiling)(Attached as Exhibit H). The Riverniders’ Motion was entitled:
FLORIDA RULE 1.540 (b)(4)
MOTION TO SET ASIDE DEFAULT and to VACATE
SUMMARY JUDGMENT and TO STAY OR SUSPEND ORDER OF SALE set for
August 31, 2009, pursuant to Rule 1.550(b)
The Motion attached and incorporated the Federal Complaint in this case, the contents whereof were thus incorporated into the state case pleadings by the languge: “, all the material allegations and legal contentions of which are adopted into this motion, insofar as these contentions can be raised in a Florida State Court, and the same allegations and contentions are incorporated by reference as if fully copied and restated herein below.” Riverniders’ August 31, 2009 Motion to Set Aside at page 2.
Circuit Judge Jack S. Cox order (See Exhibit H herein) further provided that “Defendants’ [Marsha G. Rivernider and Robert H. Rivernider’s] Emergency Motion may be set for hearing in Division “AW” in the normal course with proper notice.” As of November 11, 2009, there has never been a hearing on this Motion to Set Aside Default and to Vacate Summary Judgment” so the state court U.S. Bank case remains pending and non-final.
Rather, Marsha G. and Robert H. Rivernider have filed additional motions to vacate the summary judgment and void the order of sale in the Fifteenth Judicial Circuit. Among the new evidence which will be submitted in support of the Plaintiff’s Motion to Set Aside Default and to Vacate Summary Judgment (once a hearing date can be obtained) is the document entitled “Appraisal Review: Rivernider, Marsh & Robert, 9246 Delmar Court, Wellington, Florida 33414—Forensic Appraisal” dated November 9, 2009, and attached here as Exhibit F to these Plaintiffs’ Combined Preliminary Response to Order to Show Cause and Response to Motion to Dismiss.” Until the Plaintiff’s Post-Trial Motions have been ruled upon, the Circuit Court case is not ripe for appeal and the litigation in the Fifteenth Judicial Circuit cannot be considered res judicata, especially in light of the contentions of Plaintiffs’ complaint, which have effectively been lodged both in state AND Federal Court, by incorporation.
So long as the state court proceedings are not final, even while they are on appeal, there is no res judicata effect nor collateral estoppel nor any jurisdictional bar to parallel non-final state and federal actions running simultaneously. Exxon Mobil v. Saudi Basic Industries, 544 U.A. 180 (2005). See also Semtek v. Lockheed Martin, 531 U.S. 497 (2001).
