Tag Archives: Ninth Circuit

The Power of Judges to Make Subjective Evaluations is Corrupt and Evil! (We cannot repeat it Sufficiently—Judges should NOT be the Gatekeepers of the Courthouses—All of the People’s Complaints should be allowed a fair trial, and a fair hanging if necessary)

I am just not a great fan of Chief Justice John Roberts at all—there are certainly more than a few comparisons to be made between Roberts’ and Warren’s elitism… the certainty that the Judges of the Land know more and can make wiser choices than “ordinary people.”

Chief Justice Roberts has in seven years done more to close the doors to the Federal Courts than all the Chief Justices of the Supreme Court had ever done to open those doors before.   The Federal Courts are effectively “off limits” now as arenae for the genuinely, freely adversarial or dialectic investigation and discovery of truth.  And where the Federal Courts go, the State Courts follow like sheep close after….

It may sound like something “only a lawyer” would care about but Warren and Roberts careers have focused on making the entire civil practice in Federal Court turn on ONE RULE, namely, Rule 12(b)(6) “the Motion to Dismiss for Failure to State a Claim upon which Relief can be Granted.”  This one single rule is now “the gatekeeper” to the Federal Courthouse doors, and the “keymaster” is the idiosyncratic (or possibly corrupt) Federal Judge who is rewarded by the “judicial statistics” system for keeping his docket numbers “low” (i.e. Federal Judges are rewarded for their ability to minimize the number of cases and motions pending at any one time—12(b)(6) works WONDERS for cleaning the docket for 99% of the cases that come before Federal District Courts.

Again, while it may seem like a rather obscure point of law to call it a national crisis, the Motion to Dismiss has basically become “the whole game” for all but the wealthiest and most powerful litigants in Federal Court—and the reasons for dismissal are now intentionally unclear—with vast subjective discretion given into the hands of unelected (and logically, morally, and politically quite unelectable—because they are so far removed from “the ordinary citizen”) elite law-review type and model judges.

Earl Warren and John Roberts, in their construction and application of Rule 12(b)(6), align on the progressive empowerment of the subjective, almost unreviewable, control given to Judges over which complaints will be allowed or not.  Under Earl Warren, the Supreme Court gave the Judges the power to decide whether “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”  From the standpoint of the Seventh Amendment, of course, this holding itself was an OUTRAGE.  Under the Common Law and the Constitution, ONLY juries should have any right to decide what facts are “proven” or not and whether a party is entitled to relief.  Still, in characteristic fashion, the Warren Court was applauded for setting such a high standard for dismissal of claims.  But the precedent was set: JUDGES not Juries, make the decision about whether a complaint alleges “sufficient” facts to warrant the trial which the Seventh Amendment guarantees.  That language “beyond reasonable doubt” was first enunciated in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, decided on November 18 in 1957.  11-18-1957 Conley v Gibson – 355 US 41 78 SCt 99 (1957).  

Exactly Fifty years later, John Roberts, in the first major decision concerning the rules of civil procedure under his “Chiefship” found that an anti-trust complaint drafted by one of the top Plaintiffs’ Anti-Trust firms in New York City alleged insufficient facts to be “plausible.”  That was “Bell Atlantic v. Twombly, 550 U.S. 544; 127 S. Ct. 1955; 167 L. Ed. 2d 929 (May 21, 2007)  05-21-2007 – Bell Atlantic Corp v Twombly – 550 US 544 (2007).  

I think that the original sin was to allow JUDGES to prejudicially decide Motions to Dismiss for Failure to State a Claim.

For this reason, Conley v Gibson, in its time, functioned in a manner just as subversive to the Constitution as Bell Atlantic v. Twombly.   In 1957, the Supreme Court approved a subjective test, albeit a very LIBERAL test (difficult to flunk, like High School these days is for most student), to be applied ONLY by Judges before any fact-finding trial or even discovery—to act as gatekeepers allowing only “favored” cases to go forward.The Seventh Amendment to the Constitution guarantees the final right to try ALL facts to a jury, which findings are hardly subject to judicial review.  Twombly, by contrast, is rather like Harvard College used to be before 1940—anyone can enroll and file papers but its almost impossible to pass through the first year.  Twombly gives Federal judges unfettered discretion to dismiss cases based on their subjective evaluation of “plausibility” but Article III judges were never intended (by the Constitution) to have the power to exclude ANY cases from consideration.

Rule 12(b)(6) of the Federal Rules of Civil Procedure Permits Federal Judges to PREJUDICIALLY evaluate the factual allegations of complaints and prevent cases from ever being HEARD by juries as is GUARANTEED under the Seventh Amendment.

After Twombly, Judges now are empowered to decide whether the facts are (1) sufficiently alleged, (2) whether they make a “plausible” story.  This means that when you allege conspiracy, for example, the Judge basically can deny you the right to investigate the facts so that you will NEVER be able to put your complaint to trial before a jury.  

So, if a group of homeowners, for example, were to allege that the State Courts, and County Sheriffs’ Departments and local Constabulary of any given state systematically discriminated against mortgagors in favor of mortgagees, no matter WHAT FACTS WERE PRESENTED you can be sure that the U.S. District Court would find “insufficient” factual allegations “incomprehensibly” woven together as an “outlandish and implausible conspiracy theory.”  

This has become the (de facto) mantra of the the U.S. District Courts today: no claim or complaint that defies the ruling government’s purposes, or the ruling BANKS’ purposes, will ever be allowed to go forward in court.  

HEAR YE, HEAR YE, All Patriotic Americans: The Federal Courts are corrupt, bought and paid for by the Banks.  The only way to take them back is to restore power to the juries selected from a population pool of literate, voting, responsible Americans—and abolition of the power of judges to refuse to “hear” cases without allowing fact-finding (aka “discovery”) and trial must be declared unconstitutional.
One ray of hope exists and it is but little explored: the United States Court of Appeals for the Ninth Circuit (locus of my first job in the law) has in essence formally accused C.J. Roberts and his brother and sister justices of “outcome determinative” corruption in two decisions last year entitled “Starr v. Baca“, saying that the decisions of the Supreme Court could only be understood as catering to certain specific governmentally favored interest groups or interests, including the interest in suppressing constitutional rights…. 07-25-2012 – Starr v Baca – 652 F3d 1202 (9th Circuit 2011) 
In Starr v. Baca, the Ninth Circuit Takes on the Supreme Court in Bell Atlantic v. Twombly and rationality decency SORT OF win…. but Judges STILL have unbridled power and ius vita necisque over the people’s complaints….The Ninth Circuit also engages in an interesting political exercise of “motive” analysis, and finds the Supreme Court GUILTY of outcome determinative prejudice and bias in favor of certain policies and against certain groups…. That Starr v. Baca has some staying power and was not merely a flash in the West Coast Judicial Pan was recently confirmed in another civil rights case out of Nevada: 05-04-2012 Henry A v Willden 678 F3d 991 (9th Circuit 2012)

Call to Arms: Wells Fargo Class Action possible on Mortgage Servicing/Holder-in-Due Course Fraud, Securitization issues?


Currently I am the sole Plaintiff in a lawsuit against Wells Fargo in US District Court in Boise Idaho. The suit, like many of the others I write, is for Quiet Title to my property located in Caldwell Idaho. My assistant, Peyton Freiman, took it to the Court for filing in September along with an Application for Temporary Restraining Order, regarding which the Court immediately ordered a three hour hearing set for October 28, 2009.  Usually the decision on whether or not to grant a TRO is made in a manner of minutes in chambers. But, on this particular occasion, given the current economic climate, distrust of banks and maybe the individual language used in my pleadings I have been given a great deal of time to make my case for injunctions against Wells Fargo as we continue onward into Discovery and finally a trial. Hopefully this is a Court that realizes the seriousness of the matter and is giving me more time as a result, not simply a scare tactic to make me have second thoughts. Either way, I plan on being as prepared as ever to argue the issues in my pleadings.

I realize that this is a great opportunity and extend the option to anyone reading this who also has a loan out with Wells Fargo to intervene and join as a co-plaintiff in this case in Idaho. It would be a great strategic advantage  to have a massive list of Plaintiffs going into this hearing to give added weight to my words and possibly gain class action certification as a result.  To obtain certification under Rule 23 of the Federal Rules of Civil Procedure, there has to be at least one claim and issue regarding which all class members have identical claims. They have gotten very strict about that recently, it seems.  So class action status as a co-plaintiff we would need to talk about what issues there are in common and whether we can make identical claims for damages, injunction, or declaratory judgment.   In other words, there’s a difference in drafting issues of a different kind here: tailored issues for class certification and designation of one representative as “typical.”  We will also have to get a lawyer representing everyone’s claims in this action.  There is nothing specific in Rule 23 that says you have to have a licensed attorney.  Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class, while Rule 23(c)(2)(B)(iv) states that “a class member may enter an appearance through an attorney if the member desires.  Almost decision I have seen, however, requires that a class be represented by a licensed attorney and I’m not sure this is the place to try to challenge that issue, although it may be.  I’m open to discussion on that point.  The Court’s discretion to impose the requirement of a licensed attorney springs from Rule 23(d) (1)(C) “In conducting an action under this rule, the court may issue orders that….impose conditions on the representative parties or on intervenors.”

For the time being, and I’m writing this as of September 30, 2009: I issue this “Call to Arms”—Will everyone who believes they have been defrauded by Wells Fargo in regard to the servicing or modification of a mortgage note or mortgage contract signed after January 1, 2000, or who particularly believes that Wells Fargo is no longer the “holder in due course” of their note, or has otherwise acted in a manner inconsistent with “privity of contract” contact me through Robert Ponte at 860-599-5557?  It would be easier to start out with people in the Ninth Circuit: Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, and American Samoa, but we have another anchor state in Florida and still others in Massachusetts, Maryland, and Michigan where parallel actions could be filed.

I’d ask this:  I am working on the lawyer, are you, dear reader, willing to work with me?  If you want to know more I am willing to forward on the complaint, essentially the damages are “holder in due course” issues, which I talk about frequently on this blog. In short, if you think that somehow you and I don’t share the same kind of damages or allegations of material fact please think again: we are ALL being duped by big banks who have no idea where our original notes are. So, think about it and contact me if you wish,