http://voidjudgements.net/22reasons.htm

I find it quite interesting that the ARDC insists that no judges or attorneys who have clout and power are liars or thieves, but at least one Fla. Judge admits that Guardianship is nothing but one hot mess.

Read on:

http://www.mypalmbeachpost.com/lifestyles/health/appeals-judge-savitt-case-shows-guardianship-system-disarray/r1l28r7q3qIabnGBjiVMuM/

Posted: 2:00 p.m. Wednesday, October 25, 2017

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A state appellate judge said from the bench that one of professional guardian Elizabeth Savitt’s most controversial cases is an example of Florida’s guardianship system in “disarray” — a system that is supposed to protect incapacitated seniors but instead “sucks the ward’s estate dry.”

Last year, then-Palm Beach County Chief Judge Jeffrey Colbath handed down guardianship reforms, many of which targeted specific actions by Savitt — such as the taking thousands of dollars in fees prior to judicial approval. Savitt is married to former Circuit Court Judge Martin Colin.

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Elizabeth Savitt, a professional guardian, is married to a former judge. Savitt’s lawyers practiced in front of her husband in other … Read More

“The reason why we find ourselves in this Byzantine muck, if you will, is because there is no clear strategy on who is ultimately responsible for that dignity of the ward or the preservation of the decedent’s estate,” said Judge Cory Ciklin of the 4th District Court of Appeal at a Tuesday hearing on the Savitt guardianship of Frances Berkowitz.

“Maybe something will come out of this case that, if nothing else, encourages an appreciation of how terribly the system is in disarray.”

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Judge Martin Colin. Palm Beach Post file photo

Ciklin’s comments during a hearing Tuesday morning were even more remarkable considering the law firm of his brother Alan — Ciklin, Lubitz & O’Connell — recently got hit with a $16.4 million verdict for running up fees in a guardianship in front of Colin.

That federal case has since settled for a confidential amount to avoid a lengthy and expensive appellate process. But the troubled guardianship of Frances Berkowitz, a state case, is on appeal.

SPECIAL REPORT

A Palm Beach Post Investigation

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The Palm Beach Post’s award-winning investigative series, Guardianship: A Broken Trust, outlined the vast conflict of interest for Judge Colin as a sitting guardianship judge while his wife practiced as a guardian. He was removed from overseeing guardianship proceedings and announced his retirement.

The series also reported numerous complaints from families of Savitt’s wards and forced her cases to be moved. Colbath then announced his reforms.

Victim of fraud

The issue litigated Tuesday at the 4th DCA centered on whether a lawyer who sought a guardianship to protect his client, Berkowitz, could challenge Savitt for her actions and get her removed.

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Frances Berkowitz, with her husband Jerry Berkowitz. (Photo provided by WPTV News Channel 5)

Boca Raton attorney Webb Millsaps claimed in court documents that Savitt squandered Berkowitz’s opportunity to recover as much as $1 million from a bank and a Miami lawyer who assisted a caregiver in defrauding Berkowitz of her life savings. The senior died on Dec. 31 at age 86.

Palm Beach County Circuit Judge Howard Coates last year ruled Millsaps and his colleague, Donna Greenspan Solomon, had only limited standing to challenge Savitt. Coates ended up dismissing Millsaps’ only surviving claim that Savitt’s appointment was invalid and may have been influenced by Judge Colin.

Millsaps also argued that Savitt failed to account for $400,000 missing from Berkowitz’s bank accounts.

Instead, the former tennis pro turned guardian entered into a settlement that let the bank and other parties off the hook and instead used what was left of Berkowitz’s money to sue Millsaps and Solomon for the fees they took in collecting more than $800,000 from the caregiver.

Solomon, representing Millsaps on Tuesday, told the appellate panel the settlement Savitt made with the bank and caregiver never was formally approved by any court.

Solomon told the appellate panel — which included Judge Mark Klingensmith and Associate Judge Mark Belanger — that Savitt paid off a $308,000 foreclosure judgment on a home she owned shortly after receiving her appointment in December 2014.

Savitt’s attorney previously told The Palm Beach Post that documentation was provided to the Clerk of Court & Comptroller showing the money used to pay off the foreclosure judgment came from Savitt’s personal accounts.

No standing

If the appellate court rules in Millsaps’ favor, Solomon said, the decision would allow the Berkowitz heirs to unwind the settlement made by Savitt. The family members have also indicated they plan to sue Savitt.

John Carter, a Boca Raton lawyer representing the family who was present at the hearing Tuesday, said Ciklin’s questions and comments highlighted the core problem with guardianship in Florida: “The need for protection of the elderly and their assets from all persons with a financial stake in the process.”

Attorney Roger Levine, arguing on behalf of the guardianship on Tuesday, told the DCA panel that Millsaps, despite being the one who sought guardianship protection for his client, had no standing under the law to challenge Savitt’s decisions.

Klingensmith, though, said he reads the state guardianship law as giving broad authority to allow interested parties to intervene if a guardian is “not acting in the best interest of the ward.”

Ciklin also indicated Coates could have acted unilaterally to get to the bottom of Millsaps’ accusations against Savitt.

“The stark reality is whatever judge is assigned to a particular case is the person in charge. Period,” Ciklin said. “This, I would suggest, needs to begin and end with that judge.”

Solomon said she pleaded with Coates to look at the Berkowitz case and “find out what is going in our guardianship system in the state of Florida.”

“The absurdity of all this to some extent is that the ward ends up paying for everybody,” Ciklin said. “And all the while the ward’s estate is just being sucked dry.”

https://lawlessamerica.com/news/judicial-corruption-and-dishonesty/121-articles22/2003-judges-court-clerks-and-attorneys-all-commit-fraud-upon-the-court

Judicial Corruption and Dishonesty

Judges, Court Clerks, and Attorneys all commit Fraud Upon the Court

Should you think judges, their staffs, court clerks, and attorneys are honest, think again.

If you are involved in a court matter, you are most likely a victim.  It is important to understand what fraud upon the court is so you can realize when it is happening to you.

Fraud upon the court is important because orders and judgments may be set aside at any time when fraud upon the court is proven.  I have seen cases where as many as 60 years later, a judgment was set aside.

The good news is that the rules and case law provide a way to get relief from wrongdoing.  The bad news is that it requires a judge to make a finding of fraud, and my experience is that the judges are all guilty, but their fellow judges will cover for them.  Sadly, judges do whatever they want to do in complete violation of the law while ignoring the facts.  I believe many commit crimes in the process.

I am not an attorney, and I am not offering legal advice.  This article contains my legal research and my experience.

Fraud upon the court is fraud committed by officers of the court.  The officers of the court are attorneys, judges, and judicial employees, including the staff of the clerk of the court.  In its simplest terms, fraud upon the court is types of actions designed to  interfere with the proper functioning and decision-making of a court.

Fraud on the court should embrace only that species of fraud which does or attempts to, subvert the integrity of the court itself, or is a fraud perpetrated by officers of the court) (citation omitted); Kerwit Med. Prods., Inc. v. N. & H. Instruments, Inc., 616 F.2d 833, 837 (11th Cir. 1980).

In my experience, I have seen attorneys, judges, and the staff of the clerks of the courts all commit fraud upon the court, and there was at the very least a conspiracy between the judges and the clerk of the court’s office.  All of this was part of unconscionable schemes designed to improperly influence the courts in their decisions.

Fraud on the court must involve an unconscionable plan or scheme which is designed to improperly influence the court in its decision . . . . Davenport Recycling Assocs. v. C.I.R., 220 F.3d 1255, 1262 (11th Cir. 2000) (alleged fraud on tax court). “It has been found only in those instances where the fraud vitiates the court’s ability to reach an impartial disposition of the case before it. Id.

In my cases, there was fraud; there was fraud on the court; and there was a conspiracy to defraud.  This fraud was intentional.  The fraud was perpetrated by officers of the court.

Herring, 424 F.3d at 386. A judge is an officer of the court, as are all members of the Bar. A federal judge is a federal judicial officer, paid by the federal government to act impartially and lawfully. A judge is not the court. People v. Zajic, 88 Ill.App.3d 477, 410 N.E.2d 626 (1980).

In my cases, the fraud was directed at the judicial machinery itself.  The fraud subverted the integrity of the courts.  The fraud was designed to deceive the courts into believing facts that were not true.  The courts were unable to adjudicate the matter properly because the courts were influenced by false information.

Chief Justice John Marshall acknowledged that a court may grant relief from judgment where a new matter “clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself before judgment. Marine Ins. Co. of Alexandria v. Hodgson, 11 U.S. (7 Cranch) 332, 336 (1813). He further emphasized that an Article III court can grant relief where the “equity of the applicant [is] free from doubt,” and where a judgment “would be against conscience for the person who has obtained it to avail himself.” Id. at 337 (emphasis supplied).

Federal Rules of Civil Procedure 60(b) and 60(d) as well as independent actions in equity may all be used to seek to vacate orders and judgments due to fraud upon the courts.

One of the essential elements of an independent action in equity is a showing of the absence of any adequate remedy at law. Bankers Mortgage Co. v. United States, 423 F.2d 73, 79 (5th Cir. 1970). The Supreme Court has further noted that an independent action in equity should be available only to prevent a grave miscarriage of justice. United States v. Beggerly, 524 U.S. 38, 47 (1998). The absence of any adequate remedy at law. In re Machne Israel, Inc., 48 F. App’x 859, 863 n.2 (3d Cir. 2002) (quoting Nat’l Sur. Co. of N.Y. v. State Bank of Humboldt, 120 F. 593, 599 (8th Cir. 1903)). “[A]n independent equitable action for relief from judgment may only be employed to prevent manifest injustice.” Id. at 863. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944), and United States v. Beggerly, 524 U.S. 38 (1998), this Court’s leading recent discussions of fraud upon the court.

In my cases, evidence was fabricated by the Plaintiffs’ witnesses and attorneys.  The attorneys were knowing participants in the fraud on the court.  Bogus documents were placed into the record. Lies were told under oath, at depositions and in affidavits, and in various filings with the courts, and schemes were concocted to attempt to cover-up certain falsehoods.  Attorneys for the Plaintiffs were involved in all of this.

“The fabrication of evidence by a party in which an attorney is implicated, will constitute a fraud on the court.” Id. at 1338 (citing to Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997 (1944)).

Professor Moore writes that Fraud on the court is limited to fraud that does, or at least attempts to, “defile the court itself,” or that is perpetrated by officers of the court “so that the judicial machinery cannot perform in the usual manner its impartial task of adjudicating cases.” Moore’s Federal Practice 3d ¶ 60.21[4][a] (3d ed. 2003). Thus, a “fraud on the court” is a fraud designed not simply to cheat an opposing litigant, but to “corrupt the judicial process” or “subvert the integrity of the court.” Oxxford Clothes XX, Inc. v. Expeditors Int’l, Inc., 127 F.3d 574, 578 (7th Cir. 1997); Pumphrey v. K.W. Thompson Tool Co., 62 F.3d 1128, 1131 (9th Cir. 1995) (citation omitted); Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 460 (2d Cir. 1994). It is marked by an “unconscionable plan or scheme which is designed to improperly influence the court in its decisions,” Dixon v. Commissioner, No. 00-70858, 2003 U.S. App. LEXIS 4831, at *11–12 (9th Cir. Mar. 18, 2003), amending 316 F.3d 1041 (9th Cir. 2003), or by “egregious misconduct directed to the court itself.” Greiner v. City of Champlin, 152 F.3d 787, 789 (8th Cir. 1998) (citation omitted).

Whenever any officer of the court commits fraud during a proceeding in the court, he/she is engaged in “fraud upon the court.”

In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated “Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. … It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function — thus where the impartial functions of the court have been directly corrupted.”

“Fraud upon the court” has been defined to “embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore’s Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated “a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final.”

It is also clear and well-settled law that any attempt to commit “fraud upon the court” vitiates the entire proceeding.

The People of the State of Illinois v. Fred E. Sterling, 357 Ill. 354; 192 N.E. 229 (1934) (“The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions.”); Allen F. Moore v. Stanley F. Sievers, 336 Ill. 316; 168 N.E. 259 (1929) (“The maxim that fraud vitiates every transaction into which it enters …”); In re Village of Willowbrook, 37 Ill.App.2d 393 (1962) (“It is axiomatic that fraud vitiates everything.”); Dunham v. Dunham, 57 Ill.App. 475 (1894), affirmed 162 Ill. 589 (1896); Skelly Oil Co. v. Universal Oil Products Co., 338 Ill.App. 79, 86 N.E.2d 875, 883-4 (1949); Thomas Stasel v. The American Home Security Corporation,362 Ill. 350; 199 N.E. 798 (1935).

In my first case, 32-year federal Judge Orinda D. Evans’ unconscionable scheme was to continually rule against us in spite of the evidence.  She then committed perjury in her orders so the 11th Circuit would have to base their decision on the perjured “facts of Judge Orinda D. Evans.”

Common examples of “fraud upon the court” include the “fabrication of evidence by counsel,” Greiner, 152 F.3d at 789, and the “insert[ion of] bogus documents into the record.” Oxxford Clothes, 127 F.3d at 578. But, “[b]ecause corrupt intent knows no stylistic boundaries, fraud on the court can take many forms,” Aoude v. Mobile Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989), and courts take each case on its facts. See Dictograph Products Co. v. Sonotone Corp., 230 F.2d 131, 137 (2d Cir. 1956).

While Judge Orinda D. Evans was a victim of fraud on the court, Judge Orinda D. Evans also perpetrated fraud on the court.  Judge Orinda D. Evans willfulness has been characterized by open defiance and reckless disregard of my Constitutional rights.  This willfulness is inextricably related to, but exceeds mere error.

A civil judgment may be set aside because of a litigant’s fraud on the court though no wrongdoing is ascribed to an attorney or other officer of the court. a judgment obtained by fabricated evidence.

Tampering with the administration of justice in the manner indisputably shown in my case involves far more than an injury to a single litigant.  It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants.  The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud. The judgment involves an issue of great moment to the public.

This is not simply a case of a judgment obtained with the aid of a witness who, on the basis of after-discovered evidence, is believed possibly to have been guilty of perjury.  Here we find a deliberately planned and carefully executed scheme to defraud not only the District Court but also the Court of Appeals.  To achieve their purposes, the officers of the court created false evidence, deceived the court, answered interrogatories under oath untruthfully, filed false affidavits and gave perjured testimony, introduced altered exhibits, withheld important evidence, and filed a corrupt brief on appeal.  They frustrated discovery of its fraud through the judicial processes through abuse of the Rules of Civil Procedure.  Witnesses engaged in a concerted effort to present perjured testimony throughout the case.

The fraud on the court in my case was that species of fraud that defiles the court itself and was a fraud perpetrated by officers of the court so that the judicial machinery could not perform in the usual manner in its impartial task of adjudicating cases.

Federal Rules of Civil Procedure Rule 60(b) and 60(d) are two means of seeking relief.  I believe that you must first file a Rule 60(b) action in the court where the fraud took place.  If relief is denied, you can them file a Rule 60(d) action in another court (different judge); this is a new civil complaint.  Here is an example of one such action that I filed.

In Beggerly, the Court reviewed amended Rule 60(b) and the independent action it allows and concluded that such an action “should be available only to prevent a grave miscarriage of justice.” 524 U.S. at 47. As support for this proposition the Court pointed not only to Hazel-Atlas, but also to Pacific R. Co. v. Missouri Pacific R. Co., 111 U.S. 505 (1884), and Marshall v. Holmes, 141 U.S. 589 (1891). Independent actions must, if Rule 60(b) is to be interpreted as a coherent whole, be reserved for those cases of “injustices which, in certain instances, are deemed sufficiently gross to demand a departure” from rigid adherence to the doctrine of res judicata. Id., 524 U.S. at 46 (citing Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244 (1944)). In other words, a Rule 60(b) independent action in equity “should be available only to prevent a grave miscarriage of justice.” Beggerly, 524 U.S. at 47. Marshall v. Holmes, 141 U.S. 589 (1891), a case cited by the district court and the Supreme Court in Beggerly as an example of a “grave miscarriage of justice.” In Marshall, an independent action in equity was allowed to proceed because the underlying judgment was secured based on a forged document.

Under Federal law, when any officer of the court has committed “fraud on the court,” the orders and judgment of that court are void, of no legal force or effect.

Fraud on the court has been narrowly applied and is limited to the most egregious of circumstances involving the courts. Stonger, 776 N.E.2d at 357. Further, to prove fraud on the court, it is not enough to show a possibility that the trial court was misled. Id. at 358. Rather, there must be a showing that the trial court’s decision was actually influenced. Id. There must be a showing of egregious misconduct directed to the court itself. Greiner v. City of Champlin, 152 F.3d 787, 789 (8th Cir. 1998) (citation omitted). “Proof of the scheme, and of its complete success up to date, is conclusive.” Hazel-Atlas, 322 U.S. at 246.

In Korematsu v. United States, 323 U.S. 214 (1944), the Court affirmed the conviction and internment of Fred Korematsu, an American of Japanese ancestry. In 1983, Korematsu filed a petition for a writ of coram nobis to vacate this conviction based on government misconduct. That misconduct included evidence that the government’s brief in this Court had been deliberately misleading in setting out the facts upon which the government had relied in ordering Korematsu and, petitioners believe, this case shows that where the stakes warrant and the opportunity exists, fraud upon the court will occur.

“Fraud upon the court” may take the form of a scheme or plan by a litigant, wholly without the involvement of counsel, that is intended to corrupt the court’s decision-making. See Toscano v. Commissioner, 441 F.2d 930, 934-36 (9th Cir. 1971)

There is no statute of limitations for bringing a fraud upon the court claim. Hazel-Atlas, 322 U.S. at 244. “A decision produced by fraud on the court is not in essence a decision at all and never becomes final.” Kenner v. Comm’r of Internal Revenue, 387 F.2d 689, 691 (7th Cir. 1968).

The provision of Rule 60(b) commonly known as the “savings clause” states: “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., § 1655, or to set aside a judgment for fraud upon the court.” The fraud upon the court described in the savings clause is distinct from the fraud described in Rule 60(b)(3), the latter of which allows a court to relieve a party of a judgment upon the showing of “fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.”

A fraud upon the court action must satisfy a very demanding standard to justify upsetting the finality of the challenged judgment. The Third Circuit has described the standard as follows: In order to meet the necessarily demanding standard for proof of fraud upon the court we conclude that there must be: (1) an intentional fraud; (2) by an officer of the court; (3) which is directed at the court itself; and (4) in fact deceives the court. We further conclude that a determination of fraud on the court may be justified only by “the most egregious misconduct directed to the court itself,” and that it “must be supported by clear, unequivocal and convincing evidence.” Id. at 386-87 (internal footnote and citation omitted). The court further ruled that “the fraud on the court must constitute “egregious misconduct . . . such as bribery of a judge or jury or fabrication of evidence by counsel,” id. at 390 (citation omitted), and that “perjury by a witness is not enough to constitute fraud upon the court,” id. This is consistent with Hazel-Atlas, which noted that its facts presented “not simply a case of a judgment obtained with the aid of a witness who, on the basis of after-discovered evidence, is believed possibly to have been guilty of perjury.” 322 U.S. at 245. Rather, the court found a deliberately planned and carefully executed scheme to defraud not only the Patent Office but the Circuit Court of Appeals.” Id

Whether sovereign immunity precludes an independent action against the United States for fraud upon the court is a question of first impression for us. United States v. Timmons, 672 F.2d 1373 (11th Cir. 1982), is one of the few cases to address this question. In Timmons, the United States first brought an ejectment action against the defendants, who maintained that a separate trial was necessary to address their defense that the United States had improperly acquired the property from the defendants’ ancestors. The Eleventh Circuit recognized that a court may “entertain an independent action in equity for relief from judgment on the basis of its independent and substantive equitable jurisdiction.” Id. at 1378.

The power to vacate a judgment that has been obtained by a fraud on the court is inherent in all courts. Wright, Miller & Kane at § 2870 (citing Universal Oil Products Co. v. Root Ref. Co., 328 U.S. 575, 580 (1946)).  Almost all of the principles governing a claim of fraud on the court are derivable from Hazel-Atlas, supra. Wright, Miller & Kane at § 2870. If it is found that there was a fraud on the court, the judgment should be vacated and the guilty party denied all relief. Id.; Hazel-Atlas, 322 U.S. at 250-51. The entire cost of the proceedings, including attorneys’ fees, may be assessed against the guilty party. Universal Oil Products, 328 U.S. at 580.

In order to prevail on an independent action in equity to obtain relief from judgment, the party against whom a judgment is entered is required to establish: (1) the existence of a judgment which ought not, in equity and good conscience, be enforced; (2) a valid defense to the alleged claim upon which the judgment is founded; (3) fraud, accident or mistake which prevented a party to the judgment from obtaining the benefit of his defense; (4) the absence of fault or negligence by the party seeking relief from the judgment; and (5) no adequate remedy at law. McGinnity, supra; See also National Surety Company v. State, 120 F. 593 (8th Cir. 1903); Bankers Mortgage Company v. United States, 423 F.2d 73 (5th Cir. 1970), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d. 793 (1970). Accordingly, if these five (5) elements could be established, a party could prevail on an independent action in equity to obtain relief from judgment, despite the procedural limitations embodied in the court rules and the other recognized means of providing a party relief from judgment.

As an “elementary” consideration before entertaining an independent action in equity to obtain relief from judgment, the party seeking relief is required to exhaust all his remedies at law. Kitzman, supra, at 586; Smeland, supra, at 987; Resaake, supra, at 566. Similarly, where a party should have brought a motion under the code of civil procedure for relief from judgment (see Kitzman, supra, at 586) or a party could have properly asked the court to invoke its inherent powers to vacate a judgment (see Smeland, supra, at 987), the court could not entertain an independent action. Conversely, where a party seeks relief from judgment by motion but does not meet the mandates of the procedural rules, his appropriate remedy is maintained through an equitable action for relief from that judgment. Resaake, supra, at 566.

An “independent action alleging fraud upon the court is completely distinct from a motion under [FRCP] 60(b).” United States v. Burke, No. 05-5277, 2006 WL 2135044, *1 (3d Cir. 2006) (quoting Herring v. United States, 424 F.3d 384, 389 (3d Cir. 2005)); see also United States v. Barbosa, No. 07-1292, 2007 WL 2050881, *1 (3d Cir. 2007)

The standard the Sixth Circuit has announced for independent actions, for example, requires conduct: 1. On the part of an officer of the court; 2. That is directed to the “judicial machinery” itself; 3. That is intentionally false, willfully blind to the truth, or is in reckless disregard for the truth; 4. That is a positive averment or is concealment when one is under a duty to disclose; 5. That deceives the court. Demjanjuk v. Petrovsky, 10 F.3d 338, 348 (6th Cir. 1993) This standard recognizes that fraud upon the court, unlike perjury, need not be based on affirmative misstatements, but may be based on nondisclosures, and need not be based on proof of subjective knowledge of falsity, but may be founded on a showing of willful blindness or reckless disregard for the truth.

Other circuits have adopted more general standards. See, e.g., Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989) (“fraud upon the court is an “unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense”); Gleason v. Jandrucko, 860 F.2d 556, 559 (2d Cir. 1989) (“fraud which seriously affects the integrity of the normal process of adjudication”); Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978) (“only the most egregious conduct, such as bribery of a judge or members of the jury, or the fabrication of evidence by a party in which an attorney is implicated”); Oxxford Clothes XX, Inc. v. Expeditors Int’l, Inc., 127 F.3d 574, 578 (7th Cir. 1997) (“conduct that might be thought to corrupt the judicial process itself, as where a party bribes a judge or inserts bogus documents into the record”); Greiner v. City of Champlin, 152 F.3d 787, 789 (8th Cir. 1998) (“egregious misconduct directed to the court itself”); Dixon v. Commissioner, No. 00-70858, 2003 U.S. App. LEXIS 4831, at *11-12 (9th Cir. Mar. 18, 2003), amending 316 F.3d 1041 (9th Cir. 2003) (“unconscionable plan or scheme which is designed to improperly influence the court in its decision”).

“Fraud upon the court” as distinguished from fraud on an adverse party is limited to fraud which seriously affects the integrity of the normal process of adjudication. Gleason v. Jandrucko, 860 F.2d 556, 559 (2d Cir. 1988) (citations omitted); Transaero, Inc. v. La Fuerza Area Boliviana, 24 F.3d 457, 460 (2d Cir., 1994). The concept of “fraud on the court” embraces “only that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases.” Kupferman v. Consol. Research & Mfg. Corp., 459 F.2d 1072, 1078 (3d Cir. 1972) (citations omitted). Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1325 (2d Cir. 1995) (emphasis added).

The Ninth Circuit has fashioned a slightly different definition, holding that “to set aside a judgment or order because of fraud upon the court, … it is necessary to show an unconscionable plan or scheme which is designed to improperly influence the court in its decision.” Bailey v. Internal Revenue Service, No. 98-CV-123-TUC-RTT (JMR), 1998 U.S. Dist. Lexis 21517 at *26 (D. Ariz. 1998) (citing Wright, Miller & Kane at § 2870 (quoting England v. Doyle, 21 F.2d 304, 309 (9th Cir. 1960)).

The Fifth Circuit has defined fraud on the court to mean a “scheme by which the integrity of the judicial process has been fraudulently subverted by a deliberately planned scheme in a manner involving ‘far more than an injury to a single litigant.'” Addington v. Farmer’s Elevator Mut. Ins. Co., 650 F.2d 663, 668 (5th Cir.), cert. denied, 454 U.S. 1098 (1981) (citing, among other authorities, Hazel-Atlas, 322 U.S. at 245-46; Wright, Miller & Kane at § 2870).

Federal courts have found that there are three ways to attack a judgment on grounds of fraud on the court pursuant to this rule. See, e.g., United States v. Buck, 281 F.3d 1336, 1341-42 (10th Cir. 2002). One method is an independent action for fraud on the court pursuant to the savings clause in Federal Rule of Civil Procedure 60(b), which provides that it “does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding[.]” Buck, 281 F.3d at 1341 (quoting Fed. R. Civ. P. 60(b)).

To prove fraud on the court, it is not enough to show a possibility that the trial court was misled. Humbert, 655 N.E.2d at 607; K.M., 651 N.E.2d at 277; Pinter v. Pinter, 641 N.E.2d 101, 104 (Ind. Ct. App. 1994). Rather, there must be a showing that the trial court’s decision was actually influenced. G.H. Skala Const. Co. v. NPW, Inc., 704 N.E.2d 1044, 1049 (Ind. Ct. App. 1998), trans. denied.

The movant must establish that an unconscionable plan or scheme was used to improperly influence the court’s decision and that such acts prevented the losing party from fully and fairly presenting its case or defense. See In re Adoption of Infant Female Fitz, 778 N.E.2d 432, 437 (Ind. Ct App. 2002). Fraud on the court requires a “scheme by which the integrity of the judicial process has been fraudulently subverted by a deliberately planned scheme in a manner involving ‘far more than an injury to a single litigant.`” Addington(Page 9) Farmer’s Elevator Mutual Insurance, 650 F.2d 663, 668 (5th Cir. 1981) (quoting Hazel-Atlas Glass, 322 U.S. 238, 245-46, 64 S.Ct. 997, 1002 (1944)). See Davenport Recycling Assocs. v. C.I.R., 220 F.3d 1255, 1262 (11th Cir. 2000) (alleged fraud on tax court). “It has been found only in those instances where the fraud vitiates the court’s ability to reach an impartial disposition of the case before it.” Id.

All courts have the inherent equitable power to vacate a judgment that has been obtained through the commission of fraud upon the court. Universal Oil Prods. Co. v. Root Ref. Co., 328 U.S. 575, 580 (1946).

While an attorney should represent his client with singular loyalty that loyalty obviously does not demand that he act dishonestly or fraudulently; on the contrary, his loyalty to the court, as an officer thereof, demands integrity and honest dealing with the court. And when he departs from that standard in the conduct of a case, he perpetrates a fraud upon the court.

Hazel-Atlas is a prime example of a situation for which the independent action was preserved under amended Rule 60(b). 28 U.S.C. App., Fed R. Civ. P. 60, Advisory Committee’s Notes on 1946 Amendment, at p. 795 (“the rule expressly does not limit the power of the court, when fraud has been perpetrated upon it, to give relief under the saving clause. As an illustration of this situation, see Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944).”). See also Beggerly, 524 U.S. at 46. The Court observed that the federal courts’ equitable power to set aside a final judgment obtained by fraud was well established and that, notwithstanding the “deep-rooted policy” of finality, “where the occasion has demanded, where enforcement of the judgment is “manifestly unconscionable,” they have wielded the power without hesitation.” 322 U.S. at 244-45 (citations and footnote omitted)

Realize that the employees of the office of the clerk of the court are all officers of the court.  When the clerk’s office fails to docket your filings, changes docket entries, backdates docket entries, and issues invalid orders that do not bear the signature of the clerk and the seal of the court, these are all acts that are grounds for a finding of fraud upon the court.  I have been amazed at the extent of the fraud perpetrated against me by the office of the clerk of the court.

This article focuses on federal court, but many states have similar statutes.

I will always file actions attempting to set aside orders and judgments when I can prove fraud upon the courts.  Before you do so, realize that corrupt judges will probably punish you by awarding massive legal fees sanctions against you.  My experience is that judges ignore the facts, ignore the law, commit crimes regularly, and will do anything to damage and stop anyone from attempting to prove fraud upon the court.

William M. Windsor

I, William M. Windsor, am not an attorney.  This website expresses my OPINIONS.   The comments of visitors or guest authors to the website are their opinions and do not therefore reflect my opinions.  Anyone mentioned by name in any article is welcome to file a response.   This website does not provide legal advice.  I do not give legal advice.  I do not practice law.  This website is to expose government corruption, law enforcement corruption, political corruption, and judicial corruption.   Whatever this website says about the law is presented in the context of how I or others perceive the applicability of the law to a set of circumstances if I (or some other author) was in the circumstances under the conditions discussed.  Despite my concerns about lawyers in general, I suggest that anyone with legal questions consult an attorney for an answer, particularly after reading anything on this website.  The law is a gray area at best.  Please read our Legal Notice and Terms.

I have had a lot of requests recently for discovery forms for federal and state courts, here are the federal ones:

Link to wordperfect doct:  https://drive.google.com/open?id=0B6FbJzwtHocwT0dkdzFPSU1MdGc

Link to word doct:

https://drive.google.com/open?id=0B6FbJzwtHocwX3FiZ0tNcmRIcms

link to google docts:

(no word processing software required.  google docts is free)

https://docs.google.com/document/d/1B6XFh68LS2XsGhTI_saLEgji1bKP7pZblhY1GQs9L-k/edit#

IN THE UNITED STATE DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOE PIE
Plaintiff,
v.
JANE DELTA
Defendant
Case No. ____________
Judge _______________
Court Room No. ________
Jury Trial Demanded
PLAINTIFF’S INTERROGATORIES TO DEFENDANT DELTA
Now comes your Plaintiff, Joe Pie, and herewith propounds his first set of
Interrogatories to Defendant Delta in the above captioned cause of action. Answers are
due in 30 days from the date of service in accordance with Rule 33 of the Federal Rules
of Civil Procedure.
RULES FOR ANSWERING DISCOVERY SERVED UPON YOU
a. “Plaintiff” means Joe Pie;
b. “Defendant” means Jane Delta
c. “Subject Premises” means 1313 Mocking Bird Lane, Scaryville, IL 60633.
d. “Complaint” means the most recent Complaint filed in the above captioned
cause of action, including any amendments.
e. Each Interrogatory or Request to Admit or Document Request (“Discovery
Request”) should be answered to the best of your knowledge from all
sources and all information known to you or available to you, including
information obtainable through you agents, officers, employees, and
representatives or other persons of like representation. An incomplete
answer will be treated as a failure to answer.
f. If a Discovery Request cannot be answered in full, please answer the
portion that can be answered and state specifically they reason the
remainder cannot be answered in full.
g. If an answer to an Interrogatory may be obtained from documents in
Defendant’s possession or control, it will be a sufficient answer to the
Interrogatory to produce those documents responsive to the Discovery
Request. If Defendant elects to answer an Interrogatory by the production
of documents the documents must be attached to the answered
Interrogatories with the date of the document, the identity of the author, and
the type of document (e.g., letter, memorandum, e-mail, chart, etc.)
h. In the event Defendant believes Discovery Request cannot be answered
without disclosing proprietary information, Defendant should otherwise
answer such interrogatory to the fullest extent possible and disclose the
reason why Defendant is not providing the additional information necessary
to answer the interrogatory completely. If a document or thing contains
proprietary information, such information may be deleted prior to
Defendant’s producing the document, as long as Defendant marks or
otherwise makes clear which portion of the document or thing contains the
deleted material.
i. As used herein, “person” or “persons” means both natural persons and
artificial entities.
j. As used herein, “entity” or “entities” means a corporation, partnership, joint
venture, sole proprietorship, trust, association, firm and any other business
style in whatever form.
k. Where identification of a “person” is requested, please state the correct
legal name, the last known home address, work address and telephone
number, email, website, employer, job title or description, and relationship to
or capacity with Defendant, if any.
l. As used herein, “document” and “documents” means any paper, writing and
graphic or aural material, however recorded or reproduced, in any media,
paper, electronic or otherwise, including drafts or other preliminary material,
in Defendant’s possession, custody or control, or of which Defendant has
knowledge, wherever located, whether an original or copy. Each copy of a
document embodying or having attached to it any alterations, notes,
comments or other material not embodied in or attached to the original or
any other copy being identified shall be deemed a separate document.
Copies of Social Media posts, blogs and websites shall be included as part
of these Discovery Requets.
m. Where identification of a document or thing is requested, please state the
date of the document, identify the author, specify the type of document
(e.g., letter, memorandum, e-mail, chart, etc.) Or some other means of
identifying it, identify each of the recipients, specify its present location and
identify its custodian, and, if a document was but is not longer in
Defendant’s possession or control, please state what disposition was made
of it and when.
Page 3 of 7
n. Whenever an interrogatory seeks the identity of documents and things,
Defendant will accept Defendant’s production of the documents or thing in
lieu of all elements of the identification which otherwise would be required
pursuant to paragraph C, above, except the identification of each recipient
of the document or thing which must be provided but only if all documents
and things are segregated by the interrogatory to which their identification
should have been responsive.
o. The following Discovery Requests are deemed continuing in character and,
therefore, require the filing by Defendant of supplemental answers if other,
further, or different information is secured or available prior to the trial of the
above proceeding, and prior to any deposition taken by any party and where
required to allow Plaintiff to properly respond or reply to any Motion filed by
either party. All interrogatories should be answered with information going
back at least ten (10) years.
INTERROGATORIES:
Interrogatory No. 1 . State all dates on which you were on the Subject Premises
and describe each event giving a synopsis of the event, the day, date and time the names
and addresses and phone numbers and emails of all witnesses.
Interrogatory No. 2 For each allegation in the Complaint filed against you, describe
fully what, if any defenses you have to each allegation.
Interrogatory No. 3, with respect to you answer provided in Int. No. 1, state all
persons whom you discussed any of the events with, and provide their name, address
and email for each witness and provide a list of all topics discussed with that person.
Interrogatory No. 4, provide a brief synopsis of all police reports filed which refer or
relate to Plaintiff or the Subject Premises and whether or not you provided a copy of your
report to the Plaintiff when she asked for it.
Interrogatory No. 5, provide a synopsis of all times and dates on which you
advocated for the arrest of Plaintiff and what persons were present during those
discussions.
Interrogatory No. 6, provide a statement of all reasons why you advocated for the
arrest of Plaintiff for animal abuse.
Interrogatory No. 7, provide a statement of all evidence, physical or otherwise,
statement and photos, of why you arrested Plaintiff for Animal Abuse.
Interrogatory No. 8 provide a list of all video or audio of Plaintiff in your possession
and control.
Interrogatory No. 9, provide a list of all rules and regulations which permitted you to
arrest Plaintiff for the crime of animal abuse.
RESPECTFULLY SUBMITTED,
/e/josephpie/
Joseph Pie, Plaintiff, Pro Se
Prepared by:
Joesph Pie,
Plaintiff Pro se
1313 Mockingbird Lane
Scaryville, IL 60000
phone: 312 444-1313
email joetheplaintiff@gmail.com
Page 5 of 7
IN THE UNITED STATE DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOE PIE
Plaintiff,
v.
JANE DELTA
Defendant
Case No. ____________
Judge _______________
Court Room No. ________
Jury Trial Demanded
PLAINTIFF’S REQUESTS FOR DOCUMENTS TO DEFENDANTS DELTA
Now comes your Plaintiff, Joe Pie and herewith propounds his first set of Requests
for Documents and Things to Defendant Delta in the above captioned cause of action.
Documents and Answers are due in 30 days from the date of service in accordance with
Rule 34 of the Federal Rules of Civil Procedure. The requested Documents and Things
shall be made available for inspection and copying within the deadline stated. You shall
use the Instructions provided in the attached foregoing set of Interrogatories.
Request No. 1. You are to provide all documents and things which refer or relate
to any litigant named in this lawsuit for the last 10 years.
Request No. 2. You shall provide a copy of all documents and things which you
mentioned in your answers to any Interrogatory.
Request No. 3. You are to provide copies of any post on social media which refers
or relates to any of the litigants in this cause of action, including Plaintiff.
CERTIFICATE OF SERVICE
I hereby certify that I have served the foregoing Discovery upon all Defendants
who have appeared in this cause of action via email to all Defendants who have appeared
in this case, or by mail where indicated below.
Defendant Delta:
Email to counsel (name) and email address
/e/joepie/,pro se
Page 7 of 7

The recommendations in this Memorandum are nearly laughable.  Such as, providing an accounting in every case the judge can review is “unnecessary and burdensoe”. This is insane given the fact these docts are computer generated and should be posted, before, during and after the foreclosure to keep the banks honest.  A link can be provided to the case number.

These proposals are particularly gut wrenching and these lawyers and firms should be completely ashamed of themselves, asking that nearly all protections for homeowners be removed.

See the Memo:
MEMORANDUM
ILLINOIS SUPREME COURT MORTGAGE FORECLOSURE COMMITTEE
CODILIS & ASSOCIATES, P.C.
PIERCE AND ASSOCIATES, P.C.
FISHER AND SHAPIR~· .L..C.
By: David J. Chizewer
GOLDBERG KOHN L . .
55 East Monroe Street
Suite 3300
Chicago, IL 60603
(312) 201-4000
April13, 2012
Nine Discussion Points Submitted by the Practice and Procedure Subcommittee
I represent the law firms of Codilis & Associates, P.C., Pierce and
Associates, P.C., and Fisher and Shapiro, L.L.C. (collectively “the Foreclosure Firms”), which are three of the largest residential mortgage foreclosure firms in the State of Illinois. The Foreclosure Firms understand and support the scrutiny now given to all aspects of the residential foreclosure industry, and the judicial processes in particular. This memorandum sets forth the specific comments and suggestions to the recently proposed Illinois Supreme Court Rules regarding foreclosure procedures. The Foreclosure Firms designed their comments so that the new rules will strike a balance between ( 1) fairness and due process to defaulted borrowers; and (2) the effects that burdensome procedures may have on the many other stakeholders, including
lenders, servicers, attorneys, the judicial system, and the future population of borrowers seeking to obtain or refinance home loans.
The Foreclosure Firms’ commitment to strike a proper balance is demonstrated by
their virtually unqualified support for 6 of the 9 proposed rules. Each of the objections to the other 3 proposed rules are based on the fact that such rules would add significant burden to the system in an effort to cure what can only be characterized as phantom harm to defaulting borrowers. The Foreclosure Firms’ specific comments to each proposed rule follow below:
1. The Committee recommends that the Supreme Court adopt a rule establishing a
model foreclosure prove up affidavit.
The Foreclosure Firms support the adoption of a model foreclosure affidavit for
use in default cases. The Foreclosure Firms request that the firms most actively engaged in prosecuting residential foreclosures participate in drafting any such model affidavit, and that once adopted, substantial compliance with the model affidavit by a plaintiff constitute a safe harbor that would immunize the affidavit from an attack on its form. This model affidavit, combined with a safe harbor, would provide due process protection for borrowers and reduce meritless litigation over the form of affidavits, thereby conserving the resources of the parties and the judicial system.
2. The Committee seeks input on whether plaintiffs be required to attach payment
histories to prove up affidavits. The Foreclosure Firms submit that the extra burden of attaching detailed payment histories to affidavits in cases where payment application is not reasonably disputed does not provide a corresponding benefit to the borrower or the court.
Most foreclosure complaints follow the statutory form complaint fairly closely
and include allegations as to the amount of the current principal balance and the payment due date under the note. In addition, a copy of the note is always attached, which includes the payment terms and interest rate from which a mathematical calculation of interest can be made.
In a case where the borrower does not appear, these allegations are deemed admitted by the defaulted parties, and the calculation of the amounts due at judgment (other than attorney’s fees,
-2-
which are generally proved up by the attorneys themselves, and advances made by the client) are really simple math.
The vast majority of foreclosure cases do not feature a dispute over the amounts
due. Where there is no dispute as to payments, attaching payment histories would create an extra administrative burden that serves no useful purpose. Moreover, payment histories are often very lengthy and, given the volume of foreclosure cases filed in Illinois, would result in the use of an unwieldy amount of additional paper and additional storage resources by the Circuit Courts, resources that may not be readily available in many Circuits. Illinois Rule of Evidence I 006 contemplates the summarization of these voluminous records, in the form of the affidavits
currently provided in support of foreclosure judgments. Notably, payment histories remain available not only in discovery, but at the borrower’s request. Without any systematic problem regarding a borrower’s access to payment histories, a rule that makes this production “automatic” is not sufficiently tailored to address a particular problem. It is those sorts of reflexive rules that should be avoided.
3. The Committee recommends that the Supreme Court adopt a rule requiring that a
copy of each assignment of the mortgage being foreclosed be attached to the
foreclosure complaint, and that a copy of the note, as it currently exists, including
all endorsements and allonges, be attached to the foreclosure complaint.
The Foreclosure Firms agree that a complete copy of the note as it currently
exists, including endorsements and/or allonges, should be attached to the complaint. The
Foreclosure Firms do not agree that a chain of assignments of mortgage should also be attached. It is true that the issue of mortgage assignments has created a certain amount of confusion to the foreclosure process. It is important to understand that regardless of any assignment of the mortgage, or lack thereof, the holder of a note may designate “any person” to foreclose on the holder’s behalf. 735 ILCS 5/15-1208 (emphasis added). See also Mortgage
-3-
Electronic Registration Systems, Inc. v. Barnes, 940 N.E.2d 118, 124 (upholding MERS right to foreclose mortgage as designee ofthe noteholder). [But not having the “right person” means that numerous entities can foreclose creating multiple judgments and lawsuits]
The derivation of the confusion over mortgage assignments may help explain why
the proposed rule would impose significant new costs on the foreclosure process without any corresponding benefit to borrowers (other than the undeserved gift of an illogical foreclosure defense). As the Committee likely knows, the industry standards for documenting residential mortgage assignments have undergone significant changes in the last 20 years. The securitization of mortgage loans has greatly increased the amount of capital available to finance home acquisitions, which in turn has dramatically increased the number of loans made and enabled greater home ownership. Investors historically unfamiliar with the residential mortgage industry increasingly became the source of this capital. It therefore became customary within the securitization process to bifurcate the risk, servicing, and payment streams of the residential mortgage transaction, so that the ownership of (1) the promissory note; and (2) the rights to
service the loan, including the right to conduct a foreclosure, are typically held by different entities. This bifurcation represents a fundamental shift away from the model of mortgage finance common in earlier decades, and it has subjected the country’s mortgage recording systems to intense and unsettling pressures resulting from systems incapable of handling such a high volume of transactions. This pressure has been exacerbated by the frequent transfer of mortgage servicing rights, including the right (and obligation) to foreclose a mortgage. These changes ultimately led to the introduction of MERS, a private tracking system for transferring mortgage servicing rights among banks without recording any assignments in the public record.
The combined effect of these changes often makes it extremely difficult to produce a documented chain of assignments to the entities who were provided the rights to
enforce a mortgage. In some cases, where a servicer or loan originator is out of business, it may be impossible. This difficulty in documenting a chain of mortgage assignments, however, does not affect the borrower because it does not affect the right of the noteholder’s ability to designate anyone it wishes to foreclose the mortgage which secures that debt.
The standard mortgage used in virtually all residential mortgage loans expressly
informs borrowers that their notes and mortgages may be assigned repeatedly without any prior notice to the borrower. The borrower is not a party to those assignments. It is “black letter law” that someone who is not a party to a contract has no standing to enforce it. Applying this principle in the context of borrowers challenging some alleged deficiency in the assignment of the mortgage, ” [ c ]ourts have routinely found that a debtor may not challenge an assignment between an assignor and assignee.” Lisa Bridge v. Aarnes Capital Comoration, 20 I 0 WL 3834059 (N.D. Ohio). One court explained the issue with particular clarity:
Borrower certainly has an interest in avoiding foreclosure. But the validity of the assignment does not effect [sic] whether Borrower owes its obligations, but only to whom Borrower is obligated. Although a debtor may assert certain defenses that render an assignment absolutely invalid (such as nonassignability of the right assigned), he generally may not assert any ground which may render the assignment voidable “because the only interest or right which an obligor of a claim has in the instrument of assignment is to insure him or herself that he or she will not have to pay the same
claim twice.” [Citation omitted.] Livonia Property Holdings, L.L.C. v. 12840-12976 Farmington Road Holdings, L.L.C., 717 F. Supp. 2d 724, 735-736 (E.D. Mich. 2010), cert. den. 131 S.Ct. 1696, 179 L.Ed.2d 645 (2011) (emphasis in original). In recent years, courts in jurisdictions all over the country have repeatedly rejected the purported invalidity of an assignment of mortgage as a basis for enjoining a foreclosure or awarding borrowers relief for a wrongful foreclosure. See, e.g., Lisa Bridge, supra; Livonia, supra; Wenzel v. Sand Canyon Comoration, 2012 WL 219371 (D. Mass.); Silving v. Wells Fargo Bank, 2012 WL 135989 (D. Ariz.); Martin v. GMAC Mortgage Com., 2011 WL 6002617 (D. Hawaii); Schieroni v. Deutsch Bank National Trust Company, 2011 WL 3652194 (S.D. Tex.); Edwards v. Deutsche Bank National Trust Company (In re Edwards), 2011 WL 6754073 (Bkrtcy. E.D. Wis.); Kriegel v. Mortgage Electronic Registration Systems, 2011 WL 4947398 (R.I. Super.); Correia v. Deutsche Bank National Trust Company, 452 B.R. 319 (1st Cir. BAP 2011).
Finally, courts have upheld the validity of the registration system implemented by
MERS. See Mortgage Electronic Registration Systems. Inc. v. Barnes, 940 N.E.2d 118, 124 (1st Dist. 2007) (upholding MERS right to foreclose mortgage as designee of the noteholder); Fontenot v. Wells Fargo Bank, 129 Cal. Rptr. 3d 467, 481 (2011) (“If MERS indeed lacked authority to make the assignment, the true victim was not plaintiff but the original lender, which would have suffered the unauthorized loss of a $1 million promissory note.”); Mortgage Electronic Registration v. Azize, 965 So. 2d 151, 153 (Fla. App. 2d Dist. 2007) (holding that MERS, acting for the real party in interest, may foreclose a mortgage in its own name).
The Foreclosure Firms would support an evidentiary requirement for the
presentation of documents establishing a sufficient chain of assignments leading to the plaintiff if, during a case, it becomes evident that there is a dispute among lenders and/or servicers as to whom the noteholder has authorized to foreclose the mortgage.
4. The Committee recommends that the Supreme Court adopt a rule requiring that all
foreclosure sales be held within forty-five (45) days of the expiration of the
redemption period unless extended by direction of the plaintiff or by court order.
The Foreclosure Firms support this recommendation. Unreasonable delays in
conducting foreclosure sales result in an increase in the number of vacant and sometimes unsecured properties throughout Illinois and the duration of the time in which they remain vacant and/or unsecured. This situation can result in community risk and property devaluation, and should be avoided if at all possible. Since these delays, where they exist, are a result of limited resources available to county sheriffs conducting these sales, the use of private selling officers in at least a portion of cases in counties currently requiring the use of the sheriff would assist in the reduction of these delays.
5. The Committee recommends that the Supreme Court adopt a rule requiring that
upon entry of a judgment of foreclosure and sale, plaintiff be required to send notice
to all defendants, including defendants in default, of the foreclosure sale date, time
and location.
The Foreclosure Firms support this recommendation and note that it is considered
best practice by the Foreclosure Firms to send notice to all parties, whether in default or not, of judgment motions, sales, and sale confirmation hearings.
6. The Committee recommends that the Supreme Court adopt a rule requiring court
clerks to send a notice to all defaulted borrowers. The notice should advise defaulted
borrowers that: (1) the court has entered a default order of foreclosure and sale;
(2) the borrower may file a motion to vacate that order as soon as possible; (3) the
borrower may redeem the property from foreclosure by paying the total amount
due plus fees and costs, by a specific calendar day; (4) referring the borrower to
local resources for legal assistance in preparing a motion to vacate; and (5) advising
the borrower to act immediately. The court clerk should be required to send the
notice of default to the property address and to any secondary address at which the
borrower was served with process and to place proof of this service in the court file.
The Foreclosure Firms support this recommendation, provided that the rule
expressly states that failure of the clerk to send the recommended notice will not be deemed to impact the validity of the foreclosure proceeding in any way, particularly because plaintiffs have already provided the type of notice described in paragraph. Many court clerks are currently understaffed and overburdened. The requirement that an additional notice be sent by the clerk, where not required by statute, may present difficult compliance issues for many clerks, particularly in higher volume circuits. The clerk’s failure to comply with the requirements should not adversely affect the plaintiff’s rights in any way.
7. The Committee recommends that the Supreme Court adopt a rule, or that the
Illinois Code of Civil Procedure be amended to require that a special representative
be appointed to stand in the place of deceased mortgagors in cases where no estate
has been opened.
The Foreclosure Firms support this recommendation, provided that the proposed
rule or change in code provision makes clear that such appointments are not necessary where there is a surviving joint tenant or tenant by the entirety that now owns the fee simple (or remainderman in the rare case of a life estate) – even in cases where the surviving tenant did not sign the note. To appoint representatives in such cases would be counterproductive, as they would be representing persons who have no interest in the property, thereby creating needless increase in expense and waste of court resources.

[Note:  deceased spouses have rights and may be entitled to a homestead payment under the law.  This gives the financial institutions a path to avoid these payments.]
8. The Committee recommends that the Supreme Court adopt a rule that in instances
where the sale of a foreclosed property generates a surplus over the amount owed to
lien holders as set forth in the judgment, the plaintiffs’ attorney send a special notice
to the mortgagors advising them of the surplus and enclosing a simple form to file
with the court clerk to claim the surplus, and that any person claiming a surplus be
required to appear in open court to be examined under oath and identified on the
record as being the same person as the one authorized to claim the surplus.
The Foreclosure Firms support adoption of such a rule, but note that such a notice
requirement gives preferential treatment to borrowers claiming a right to surplus over other parties such as junior lienholders or trustees of bankruptcy estates which may also have a claim to the surplus, but who would not receive the special notice.
9. The Committee seeks input on whether the Supreme Court adopt a rule requiring
plaintiffs’ attorneys to file a separate affidavit along with the prove up affidavit
stating that they had spoken to a specifically-named person who worked for their
client and verified, through that conversation, that the figures were correct and the
foreclosure was justified.
The Foreclosure Firms oppose adoption of such a rule.
The proposed rule conflicts with the critical and fundamental principles embodied
in the attorney-client privilege and the specific ethical rules which prohibit attorneys who are evidentiary witnesses in a matter from representing a party in that same matter. Such a rule would seek to govern the communication between an attorney and require an attorney to divulge in affidavit form material protected from disclosure by the attorney-client privilege, in violation of Supreme Court Rule 20 I (b )(2) and Illinois Rule of Evidence 50 I.
The attorney-client privilege has been described as essential “to the proper
functioning of our adversary system of justice.” In re Marriage of Decker, 153 Ill. 2d 298,
312-313 (1992), quoting United States v. Zo1in. 491 U.S. 553, 562 (1998). Moreover, “the
[attorney-client] privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer being fully informed by the client.” Fischel & Kahn van Straaten Gallery, 189 Ill. 2d 579, 584-585 (2000) (internal citations omitted). The Committee should not propose a rule that puts this essential privilege in jeopardy. [Are they admitting that (some) lawyers turn their heads when it comes to client fraud?–and in particular, lawyers for wealthy, clouted banks?]
A rule requiring plaintiffs’ attorneys to file an affidavit attesting to communications with their clients is unworkable as it either (i) waives the plaintiffs attorney-client privilege; or (ii) allows the plaintiff to use attorney-client privilege as a sword
against the defendants and not a shield. The proposed rule would create an evidentiary
watershed; proceedings for plaintiffs who provide such an affidavit go forward, while
proceedings for those who cannot, do not.  Such a rule clearly forces plaintiffs to put attorney-client communications “at issue”, an enumerated exception to, or waiver of, the attorney-client privilege. One of the most common te.sts to determine whether a party has waived attorney-client privilege has its roots in Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975): If (i) assertion of the privilege is the result of some affirmative act, such as filing suit, by the asserting party, (ii) through the affirmative action, the asserting party has placed the protected information at issue by making it relevant to the case, and
(iii) application of the privilege would deny the opposing party access to information vital to its defense, the court should find that the asserting party has impliedly waived the privilege through its own affirmative conduct.
Federal Deposit Ins. Com. v. Wise, 139 F.R.D. 168 (D. Colo. 1991), citing Hearn, 68 F.R.D.
at 581. Some courts in Illinois have used or acknowledged the Hearn test to determine whether there has been an at issue waiver. See, e.g., Pyramid Controls, Inc. v. Siemens Indus. Automations. Inc., 176 F.R.D. 269, 272 (N.D. Ill. 1997) (“Hearn v. Rhay is the seminal case on “at issue” waiver”); Waste Management, Inc. v. International Surplus Lines Insurance Co .. 579 N.E.2d 322 (Ill. 1991). However, some courts prefer the anticipatory waiver test according to which: a party waives the attorney-client privilege when she places the advice of counsel at issue by (i) asserting a claim or defense and (ii) then seeking to prove that claim or defense by disclosing or describing an attorney-client communication. 30 N. Ill. U. L. Rev. at 556-557. See Dexia Credit Local v. Rogan, 231 F.R.D. 268, 275-276 (N.D. Ill. 2004) (an Illinois diversity case applying the anticipatory waiver test); Grochocinski v. Mayer Brown Rowe & Maw LLP, 251 F.R.D. 316, 324 (N.D. Ill. 2008) (“[I]t is not sufficient that a party merely deny an allegation, or that the documents are relevant to the claim.”). Under either test, the proposed rule would waive attorney-client privilege.  Applying the Hearn test to the proposed rule, it is clear that (i) plaintiffs initiation of a foreclosure proceeding would be an affirmative action; (ii) the affidavit would make protected information not only relevant to the case but necessary; and (iii) application of attorney-client privilege would prevent the defendant from information necessary to defend, thereby satisfying prongs (i), (ii), and (iii) of the test, respectively. Applying the anticipatory waiver test to the new rule, it is clear that (i) plaintiff is clearly asserting a claim that it is entitled to foreclose; and (ii) plaintiff is disclosing an attorney-client communication to prove that claim, thereby satisfying both prongs of the test.
Even if the proposed rule does not trigger an “at issue” waiver, the proposed rule
remains unworkable. If the plaintiff retains its attorney-client privilege after filing the attorney affidavit, there is no way to verify the veracity of the affidavit or for the defendant to attack against the affidavit. Essentially, the affidavit allows the plaintiff to enter evidence, favorable to itself, of which the defendant has no ability to discover any facts to disprove. The defendant is put in the unenviable position of arguing the plaintiff did not act diligently, while having no defense to certain admitted evidence that the plaintiff did act diligently. Unless an “at issue” waiver results, the plaintiff is being given a new weapon; a result certainly at odds with the goal of the proposed rule.
These same fundamental principles are embodied m Rule 3. 7 of the Illinois Supreme Court Rules of Professional Conduct which states that:
LAWYER AS WITNESS
(a) A lawyer shall not act as advocate at a trial in which the lawyer
is likely to be a necessary witness unless:
(I) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal
services rendered in the case; or
(3) disqualification of the lawyer would work substantial
hardship on the client.
The comments to this rule note that “Combining the roles of advocate and witness can prejudice the tribunal and the opposing party and can also involve a conflict of interest between the lawyer and client.” The proposed rule would require attorneys to balance advocating for the plaintiff while potentially having to attest to facts adverse to the plaintiff. Furthermore, if the veracity of the affidavit is called into question, the only way to determine the truth would be to depose the attorney, thereby forcing him or her to act as a witness against his or her client. Such a situation is clearly in violation of Rule 3.7. Even worse, litigious foreclosure defense attorneys interested in delaying proceedings could seek to depose or obtain courtroom testimony from the attorneys executing such affidavits, potentially forcing their withdrawal from the case and depriving the plaintiffs of their attorney of choice, even though such depositions would have no probative value whatsoever.
Finally, such an affidavit, by its very nature, would be flawed. The prove up affidavits used at judgment are the sworn statements of the plaintiffs representatives based on
their review of the plaintiffs applicable business records. Business records are  dmissible in Illinois courts because their purpose is to aid in the proper transaction of business, and they are useless for that purpose unless accurate; therefore, the motive for following a routine of accuracy is great, and the motive to falsify non-existent. See Kimble v. Earle M. Jorgenson Co .. 358 Ill. App. 3d 400, 414 (1st Dist. 2005), citing M. Graham, Clearv & Graham’s Handbook of Illinois Evidence § 803.10, at 817 (7th Ed. 1999); Chicago & AltonR.R. Co. v. American
Strawboard Co., 190 Ill. 268, 60 N.E. 518 (1901). The attorney cannot testify as to the client’s practice of the business record retention or to its accuracy. The attorney could only aver that he or she asked the client to verify that the figures provided were correct. Such an affidavit has little value added, as an attorney is already required to have a good faith basis for relying on the facts provided by the client under Rule 13 7.

From Dave Gerry on Facebook this morning:

The cops came and took Andy Ostrowski ( Andrew Joseph ) away again this morning on another “302” (mental illness claim), just a few weeks after a judge ruled they had no legal reason to detain him. Don’t know who called a 302 on him this time. Last time it was his Scientologist brother from Chicago….

You can be a pedophile and not get charged. You mention corruption in government and law enforcement in a lawsuit, you get put into a mental hospital. This is so wrong.

Declarations of mental illness for the purpose of defeating political opponents is a tried-and-true method of despots everywhere. Amerika hardly resembles the country I grew up in anymore.

From Joanne;

I will the fax no. for the pych hospital and the police on Monday and let’s let them know this is NOT acceptible behavior.

I doubt this will stop until Andy sues in Federal Court.

Please pray for him.

Joanne

An update:  he was released after just a few hours, but this is his second 302 false psych hold in just a couple of weeks. Pray for him.

http://thefreethoughtproject.com/cop-handcuffs-children-video/

Many police are not properly trained on how to treat children and especially disabled children.  This court rules that is excessive force and a violation of constitutional rights.

PAYMENTS AND GIFTS TO JUSTICES OF THE U.S. SUPREME COURT

                                          BY PEOPLE WITH CASES BEFORE THE SUPREME COURT

Query: Is it legal malpractice for an attorney to fail to advise his/her client to offer payment or gifts to the Justices hearing their case?

On February 13, 2016, United States Supreme Court Justice Antonin Scalia died at a remote, ultra-exclusive, luxury West Texas hunting lodge, while staying there for free. The hunting lodge was owned by a businessman whose company had recently had a matter before the Supreme Court. The businessman’s company prevailed in the matter. See the New York Times article written by Eric Lipton which was reprinted by the Seattle Times: http://www.seattletimes.com/nation-world/scalia-took-the-most-expense-paid-trips-on-the-court/

            According to the article: “Among the court’s members, (Scalia) was the most frequent traveler, to spots around the globe, on trips paid for by private sponsors…Though that trip has brought new attention to the justice’s penchant for travel, it was in addition to the 258 subsidized trips that he took from 2004 to 2014. Scalia went on at least 23 privately funded trips in 2014 alone to such places as Hawaii, Ireland and Switzerland, giving speeches, participating in moot-court events or teaching classes. A few weeks before his death, he was in Singapore and Hong Kong.”

There is no evidence that Justice Scalia was participating in any moot-court events or teaching any classes while staying at the resort.

            Many experts in legal ethics, who teach legal ethics in law school to future lawyers, find nothing wrong with this practice.

Organizations opposed to these practices include the Center for Responsive Politics, Fix the Court and Common Cause.

Congresswoman Louise Slaughter, D-N.Y., and U.S. Senator Chris Murphy (D-Conn) re-introduced the Supreme Court Ethics Reform Bill in April, 2015 to force the Supreme Court to adopt a code of ethics for Supreme Court Justices. The same bill was originally introduced in 2013. As Congresswoman Slaughter states on her website:

“The questionable activities of some of our Supreme Court justices have been well documented – participating in political functions, failing to report family income from political groups, and attending fundraisers.  It doesn’t make sense that members of the highest court in the land are the only federal judges exempt from the code of conduct. Our bill, the Supreme Court Ethics Act would, for the first time, make sure the justices adhere to the federal code of conduct and are accountable for these types of ethically dubious activities.  Perhaps more importantly, the bill would help repair the public’s trust in the Court, the final arbiter of justice in America.”

“In 2012, 212 legal scholars jointly urged the Supreme Court to adopt the Code of Conduct for U.S. Judges. To date (April, 2015), more than 130,000 Americans have signed a petition to Chief Justice John Roberts asking him to adopt a code of ethics for the court.”

There were 127 co-sponsors of the Supreme Court Ethics Reform Bill – all Democrats.

To date, no legislation has been passed and no code of conduct has been adopted.

Since Congress, the Republican Party, many legal ethics professors and the Supreme Court itself say that gift giving and payments to Justices are acceptable, and since it is obviously very common practice, is it fair to say that gifts and payments are encouraged? Is this the standard of care in legal practice? Therefore, should attorneys and their clients with cases before the Court be encouraged to offer gifts and payments to Supreme Court Justices? Stated another way, is it legal malpractice for an attorney to fail to advise his/her client to offer such gifts or payments?

__________________________________________________________________________________

About the Author:  Paul E. Simmerly is a freelance journalist and blogger writing about legal, judicial political, governmental, corporate and pharmaceutical industry corruption and misconduct.

http://mandelman.ml-implode.com/2011/02/new-bankruptcy-court-decision-sounds-the-alarm-%E2%80%93-the-uss-mers-is-going-down/

This is a pretty funny article about MERS and how it is mostly a full of it mortgage/note handling process that bilks county recorder out of millions in recording mortgage docts per year, plus it can often create havoc in foreclosure/assignment/purchase cases.

read on.

New Bankruptcy Court Decision Sounds the Alarm – The USS MERS is Going Down

Preface…

Before I jump into this decision by a U.S. Bankruptcy Court Judge in New York, I just want to acknowledge that I very rarely write about MERS.  And it’s not an accident; I’ve chosen not to do so… until now, anyway.

Perhaps I’ve been wrong not to cover the MERS debacle in greater detail, but the reason I haven’t is that I view some of the issues related to MERS as kind of… well, pedestrian… not to put too fine a point on it.

Other than a few good decisions by courts that have barred MERS from foreclosing, it just seemed to me that the problems presented by MERS could be fixed, and therefore I didn’t want homeowners who read my column to put too much stock in their loan being a MERS loan, as doing much for them if they find themselves at risk of foreclosure.

This decision has done a lot to change my view of MERS and the role it plays in foreclosures.  The judge in this case presents a damn strong, if non-binding case why MERS may in fact be a much larger problem than I thought it was.

According to consumer bankruptcy attorney and nationally known foreclosure defense guru, Max Gardner…

“This case may well be the final dagger in the deep dark heart of the MERS business model.  MERS has fired its President, R.K. Arnold, and may well terminate its Secretary, William Hultman, but MERS cannot fix the systematic and fundamentally flawed legal issues clearly and succinctly identified by the Court in Agard.”

And so… without further delay, I present to you… the “Agard Decision”.

~~~

The State: New York

The Case: In re: Ferrel L. Agard, Debtor, Chapter 7

The Court: United States Bankruptcy Court, Eastern District of New York

The Judge: The Honorable Robert E. Grossman

The Set Up: U.S. Bank, as the trustee for one First Franklin Mortgage Loan Trust 2006-FF12, Mortgage Pass-Through Certificates, Series 2006-FF12… which all just means that we’re talking about a REMIC trust containing a securitized pool of mortgages… moves to obtain relief from the automatic stay created by a Chapter 7 bankruptcy filing, in order to complete the foreclosure of Ferrel Agard’s home.  New York State courts had already ruled and a foreclosure judgment was issued, so now U.S. Bank as trustee just needed to finish things out by obtaining relief from the automatic stay so they can proceed with selling the home.

Records show that the bankruptcy trustee expected a routine, no assets case… file report, collect fee, end of case.  U.S. Bank, represented by its loan servicer, Select Portfolio Servicing (“SPS”), who was in turn represented by Buffalo’s most infamous foreclosure mill, Steven J. Baum PC, must have thought about the same… a straight forward foreclosure case, lets get rid of the deadbeats and be home by dinner.

But, in today’s fast changing world of Fraudclosuregate, things are not always as they appear, and crap that flew yesterday may not fly again tomorrow.

The Opposition: On October 27, 2010, the borrower’s attorney filed a single page document on which the type was double-spaced.  It was a “partial opposition to the motion for relief from stay” that U.S. Bank had filed, and it suggested to the judge that perhaps there might be some sort of small problem with the MERS assignment.  It also, in so many words, posited: Who the heck was Select Portfolio Services and why did they have any role in the case anyway?

After that, one might say… the fit hit the shan.

The Hearing: At a hearing held on November 15, 2010, the judge must have more than just hinted that he was going to look very carefully at this whole MERS thing, because he suggested that the parties might want to consider filing some real legal briefs on the subject, and he made it clear that he would be holding a real hearing on the issues on December 15, 2010, just one month down the road.

The Response: All of a sudden nothing was at it seemed just days before… SPS asks the court for more time and rushes out for reinforcements, bringing in a “tall building” law firm from New York City to replace the relative pikers at Baum’s Mill.  The newly retained big city lawyers file a major brief in support of the U.S. Bank/SPS position on December 8th.

Then, on December 9th, MERS shows up, metaphorically at least with lights flashing and sirens blaring, to file an “emergency motion to intervene,” crying in sheer panic that their entire national business model is being attacked and that the result can be nothing less than the end of the world as we all know it.

They bring in a sworn declaration from MERS Treasurer and Corporate Secretary, William Hultman on December 10th, that explains what an entirely fabulous and utterly wonderful invention MERS actually is, and then… I suppose afraid that the one Hultman declaration just might not carry the day they show up with yet another declaration from MERS Treasurer and Corporate Secretary, William Hultman on December 23rd.

In an effort to keep things straight as related to the declarations, we’ll call that one: “Why Everyone Should Love MERS More Than Life Itself… The Sequel.”

The judge then begins to dig into the matter.  Perhaps he was waiting for a case such as this one, or perhaps some other forces were in play, but regardless… for MERS… this was the wrong judge on the wrong day.

The Decision: Judge Grossman devotes the first half of his opinion to discussing whether he even has the legal authority to look into how U.S. Bank obtained this mortgage in the first place, since it already had obtained a foreclosure judgment in state court, and because there is an irritating (to Federal judges) and arcane Rooker-Feldman doctrine that prohibits federal courts from interfering with state court judgments.

Alas, our intrepid judge concludes on page 18 of his decision that Rooker-Feldman does in fact preclude him from looking further into the issues that underlie the U.S. Bank foreclosure judgment.  And, as a result, Judge Grossman decides that he must grant U.S. Bank’s motion for relief from the bankruptcy automatic stay so that the trustee can complete the foreclosure.

Now, were we talking about most judges, that would represent the end of this proverbial road… the opinion would be dated and signed and I would not be writing about the case now.  But we’re not talking about most judges… we’re talking about the Honorable Judge Robert E. Grossman of the U.S. Bankruptcy Court, and he’s apparently not a judge with which one should trifle.

He’s got MERS in his crosshairs, apparently exactly where he wants them, and in the 18 pages that follow his decision to grant the relief from the automatic stay he goes after MERS mercilessly.  Attorney Thomas Cox of Portland, Maine, who you may remember from the “GMAC uses robo-signers deposition” that brought foreclosures to a standstill last fall, says that in his opinion…

“He (Judge Grossman) does the most thorough and competent analysis of the MERS charade that I have seen, basically concluding that the entire MERS business model does not comply with our laws, and that he will no longer accept MERS mortgage assignments in his court room.”

“It’s a decision that was a delight to see.”

Now, clearly this is a decision that’s worth reading for one’s self… Judge Grossman is one heck of a writer and not one to play patty-cake with MERS or those of the banking persuasion, but I thought I’d at least provide the overview of the decision with “training wheels” for those who aren’t of the mind to wade through the entire text of the decision themselves, or who find these things next to impossible to read and understand.

Here’s the overview of the Memorandum Decision in its entirety… with my clarifications added for those who find them valuable.  If you’re a lawyer or just an uber-smartee, just scroll on down to the imbedded document for a copy of Judge Grossman’s decision in its entirety.

The movant is Select Portfolio Servicing, Inc. (“Select Portfolio” or “Movant”), as servicer for U.S. Bank National Association, as Trustee for First Franklin Mortgage Loan Trust 2006-FF12, Mortgage Pass-Through Certificates, Series 2006-FF12 (“U.S. Bank”).

Okay, for now just remember that the servicer is the “Movant.”  The rest I already covered above at the very beginning.  U.S. Bank N.A. is the trustee for the First Franklin Mortgage Loan Trust… blah, blah, blah… got it?  Good, let’s move on…

The Debtor filed limited opposition to the Motion contesting the Movant’s standing to seek relief from stay. The Debtor argues that the only interest U.S. Bank holds in the underlying mortgage was received by way of an assignment from the Mortgage Electronic Registration System a/k/a MERS, as a “nominee” for the original lender.

The Debtor’s argument raises a fundamental question as to whether MERS had the legal authority to assign a valid and enforceable interest in the subject mortgage. Because U.S. Bank’s rights can be no greater than the rights as transferred by its assignor – MERS – the Debtor argues that the Movant, acting on behalf of U.S. Bank, has failed to establish that it holds an enforceable right against the Property¹.

This references the single page, double-spaced document I described that was filed by the borrower’s attorney, called a “partial opposition to the motion top relief from stay”.  It raised some questions that the judge would later seek to answer.

The Movant’s initial response to the Debtor’s opposition was that MERS’s authority to assign the mortgage to U.S. Bank is derived from the mortgage itself, which allegedly grants to MERS its status as both “nominee” of the mortgagee and “mortgagee of record.”

Judge Grossman is going to attack this line of reasoning head on in the last 18 pages of his decision.  Among many other things, you’ll see him say… “Aside from the inappropriate reliance upon the statutory definition of “mortgagee,” MERS’s position that it can be both the mortgagee and an agent of the mortgagee is absurd, at best.” And there’s a whole lot more where that came from… read on…

The Movant later supplemented its papers taking the position that U.S. Bank is a creditor with standing to seek relief from stay by virtue of a judgment of foreclosure and sale entered in its favor by the state court prior to the filing of the bankruptcy.

The Movant argues that the judgment of foreclosure is a final adjudication as to U.S. Bank’s status as a secured creditor and therefore the Rooker-Feldman doctrine prohibits this Court from looking behind the judgment and questioning whether U.S. Bank has proper standing before this Court by virtue of a valid assignment of the mortgage from MERS.

This is the part that caused Judge Grossman to back down in this particular instance and allow the relief from automatic stay, thus allowing the foreclosure to proceed.  Basically, he concludes that he’s not allowed to question the facts that underlie the foreclosure judgment that was previously granted by the state court.

There is also an important footnote (“1”) on the second page that reads as follows:

The Debtor also questions whether Select Portfolio has the authority and the standing to seek relief from the automatic stay. The Movant argues that Select Portfolio has standing to bring the Motion based upon its status as “servicer” of the Mortgage, and attaches an affidavit of a vice president of Select Portfolio attesting to that servicing relationship.

Case law has established that a mortgage servicer has standing to seek relief from the automatic stay as a party in interest. See, e.g., Greer v. O’Dell, 305 F.3d 1297 (11th Cir. 2002); In re Woodberry, 383 B.R. 373 (Bankr. D.S.C. 2008).

This presumes, however, that the lender for whom the servicer acts validly holds the subject note and mortgage. Thus, this Decision will focus on whether U.S. Bank validly holds the subject note and mortgage.

I think the judge is saying that servicers do have standing to seek relief from an automatic stay that results from a borrower filing bankruptcy, but that such standing presumes that the lender being represented by the servicer validly holds the note and mortgage, and that the decision will address that issue.

Okay, you’ve got that part pretty much down, right?  Then the decision goes on to say…

The Court received extensive briefing and oral argument from MERS, as an intervenor in these proceedings, which go beyond the arguments presented by the Movant.

This just says that MERS showed up with all guns blazing, arguing that MERS represents all that is right, good and just in the world.  The judge isn’t buying though…

In addition to the rights created by the mortgage documents themselves MERS argues that the terms of its membership agreement with the original lender and its successors in interest, as well as New York state agency laws, give MERS the authority to assign the mortgage.

MERS argues that it holds legal title to mortgages for its member/lenders as both “nominee” and “mortgagee of record.” As such, it argues that any member/lender, which holds a note secured by real property, that assigns that note to another member by way of entry into the MERS database, need not also assign the mortgage because legal title to the mortgage remains in the name of MERS, as agent for any member/lender, which holds the corresponding note.

MERS’s position is that if a MERS member directs it to provide a written assignment of the mortgage, MERS has the legal authority, as an agent for each of its members, to assign mortgages to the member/lender currently holding the note as reflected in the MERS database.

Judge Grossman is going to examine all of these arguments and then some in his decision.  But before he does that, he’s going to agree that he’s precluded from digging into the facts pertaining to the foreclosure judgment previously obtained in state court, and so he’s going to grant relief from the automatic stay and allow this foreclosure to proceed.  And in that regard the judge writes…

For the reasons that follow, the Debtor’s objection to the Motion is overruled and the Motion is granted. The Debtor’s objection is overruled by application of either the Rooker-Feldman doctrine, or res judicata. Under those doctrines, this Court must accept the state court judgment of foreclosure as evidence of U.S. Bank’s status as a creditor secured by the Property. Such status is sufficient to establish the Movant’s standing to seek relief from the automatic stay. The Motion is granted on the merits because the Movant has shown, and the Debtor has not disputed, sufficient basis to lift the stay under Section 362(d).

Next the judge explains that, even though this court is constrained by Rooker-Feldman and the previously obtained state court decision, because there are numerous other cases before this court that present identical issues, and for which there have been no prior dispositive state court decisions, he’s going to look beyond this case’s limitations and publish a decision that addresses the issue of whether the “Movant” has established standing in this case because of the precedential effect it will have on other cases pending before the court.  And so he writes…

Although the Court is constrained in this case to give full force and effect to the state court judgment of foreclosure, there are numerous other cases before this Court, which present identical issues with respect to MERS and in which there have been no prior dispositive state court decisions.

This Court has deferred rulings on dozens of other motions for relief from stay pending the resolution of the issue of whether an entity which acquires its interests in a mortgage by way of assignment from MERS, as nominee, is a valid secured creditor with standing to seek relief from the automatic stay.

It is for this reason that the Court’s decision in this matter will address the issue of whether the Movant has established standing in this case notwithstanding the existence of the foreclosure judgment. The Court believes this analysis is necessary for the precedential effect it will have on other cases pending before this Court.

The next paragraph of the judge’s decision is particularly telling.  It is Judge Grossman completely disregarding perhaps MERS’ favorite argument, which is that MERS has to be okay because half the mortgages in this country are registered with MERS and if it’s not okay, the whole world will come to an end.

Judge Grossman states his view of this argument in no uncertain terms…

The Court recognizes that an adverse ruling regarding MERS’s authority to assign mortgages or act on behalf of its member/lenders could have a significant impact on MERS and upon the lenders, which do business with MERS throughout the United States.

However, the Court must resolve the instant matter by applying the laws as they exist today. It is up to the legislative branch, if it chooses, to amend the current statutes to confer upon MERS the requisite authority to assign mortgages under its current business practices.

MERS and its partners made the decision to create and operate under a business model that was designed in large part to avoid the requirements of the traditional mortgage recording process. This Court does not accept the argument that because MERS may be involved with 50% of all residential mortgages in the country, that is reason enough for this Court to turn a blind eye to the fact that this process does not comply with the law.

Wow, so you see what he’s saying there, right?  It’s worth repeating…

MERS and its partners made the decision to create and operate under a business model that was designed in large part to avoid the requirements of the traditional mortgage recording process. This Court does not accept the argument that because MERS may be involved with 50% of all residential mortgages in the country, that is reason enough for this Court to turn a blind eye to the fact that this process does not comply with the law.

Did you hear that sound?  That was the sound of the MERS ship hitting an iceberg and starting to sink.  To the lifeboats, banker-people, your ship is sinking, and the water’s damn cold.

And on that note, it’s once again time to Sing-Along with Mandelman!  You remember the song from our youth about “How they built the ship Titanic to sail the ocean blue?  And they thought they had a ship that the water would never leak through.  But the Lord’s almighty hand, knew that ship would never stand… it was sad when the great ship went down.  It was sad, so sad… it was sad, so sad…”  You remember that one right?

Alrighty then… so, sing it like you mean it… with feeling… and if you don’t want to sing, maybe you should be reading about this stuff on Naked Capitalism, or Firedog Lake… Yves Smith is smarter than all get out, but when was the last time she led you in song?

V1:

Oh they built the good ship MERS, so foreclosures could sail through,

And they thought they had a plan that the courts would never see through,

But some lawyers’ learned hands, showed that MERS just didn’t stand,

We were glad when the MERS ship went down.

~~~

CHORUS:

Oh we were glad, so glad,

We were glad, so glad,

We were glad when the MERS ship went down, to the bottom of the sea…

Many lost homes, but to those who lacked their loans,

We were glad when the MERS ship went down.

~~~

V2:

Oh, they went into the courts, hoping judges were inclined,

To not care exactly how, someone’s loan had been assigned.

Yes, the banks would rue the day, when they wrote that PSA,

We were glad when the MERS ship went down.

~~~

CHORUS:

Oh we were glad, so glad,

We were glad, so glad,

We were glad when the MERS ship went down, to the bottom of the sea…

Many lost homes, but to those who lacked their loans,

We were glad when the MERS ship went down.

~~~

V3:

MERS said it had the right, to do things as it pleased,

But the courts did not agree, and soon homes could not be seized.

Seems laws had important words, and MERS assertions were absurd,

We were glad when the MERS ship went down.

~~~

CHORUS:

Oh we were glad, so glad

We were glad, so glad

We were glad when the MERS ship went down, to the bottom of the sea…

Many lost homes, but to those who lacked their loans,

We were glad when the MERS ship went down.

V4:

Soon the bankers will all see, that fraud is not what prevails,

And they’ll realize their hot air will not fill this nation’s sails,

But the price will have been paid, for their mortgage-backed charade,

We were glad when the MERS ship went down.

~~~

CHORUS:

Oh we were glad, so glad

We were glad, so glad

We were glad when the MERS ship went down, to the bottom of the sea…

Many lost homes, but to those who lacked their loans,

We were glad when the MERS ship went down.

~~~

Okay, so I know there are at least a few people out there singing along with that little ditty from days spent at summer camp or on the school bus while on the way home from a field trip.  Maybe next time I’ll work from Bingo Was His Name-O, or 100 bottles of Beer on the Wall.

Meanwhile, you’ve got plenty to do reading Judge Grossman’s decision as provided below.  But, before you do, here are a few highlights, once again for those who want the Reader’s Digest Version.

First, from the MERS side of the argument…

In addition to adopting the arguments asserted by the Movant, MERS strenuously defends its authority to act as mortgagee pursuant to the procedures for processing this and other mortgages under the MERS “system.”

First, MERS points out that the Mortgage itself designates MERS as the “nominee” for the original lender, First Franklin, and its successors and assigns.

In addition, the lender designates, and the Debtor agrees to recognize, MERS “as the mortgagee of record and as nominee for ‘Lender and Lender’s successors and assigns’” and as such the Debtor “expressly agreed without qualification that MERS had the right to foreclose upon the premises as well as exercise any and all rights as nominee for the Lender.” (MERS Memorandum of Law at 7).

These designations as “nominee,” and “mortgagee of record,” and the Debtor’s recognition thereof, it argues, leads to the conclusion that MERS was authorized as a matter of law to assign the Mortgage to U.S. Bank.

Although MERS believes that the mortgage documents alone provide it with authority to effectuate the assignment at issue, they also urge the Court to broaden its analysis and read the documents in the context of the overall “MERS System.” According to MERS, each participating bank/lender agrees to be bound by the terms of a membership agreement pursuant to which the member appoints MERS to act as its authorized agent with authority to, among other things, hold legal title to mortgages and as a result, MERS is empowered to execute assignments of mortgage on behalf of all its member banks.

In this particular case, MERS maintains that as a member of MERS and pursuant to the MERS membership agreement, the loan originator in this case, First Franklin, appointed MERS “to act as its agent to hold the Mortgage as nominee on First Franklin’s behalf, and on behalf of First Franklin’s successors and assigns.”

MERS explains that subsequent to the mortgage’s inception, First Franklin assigned the Note to Aurora Bank FSB f/k/a Lehman Brothers Bank (“Aurora”), another MERS member. According to MERS, note assignments among MERS members are tracked via self-effectuated and self-monitored computer entries into the MERS database. As a MERS member, by operation of the MERS membership rules, Aurora is deemed to have appointed MERS to act as its agent to hold the Mortgage as nominee.

Aurora subsequently assigned the Note to U.S. Bank, also a MERS member. By operation of the MERS membership agreement, U.S. Bank is deemed to have appointed MERS to act as its agent to hold the Mortgage as nominee. Then, according to MERS, “U.S. Bank, as the holder of the note, under the MERS Membership Rules, chose to instruct MERS to assign the Mortgage to U.S. Bank prior to commencing the foreclosure proceedings by U.S. Bank.” (Affirmation of William C. Hultman, ¶12).

MERS argues that the express terms of the mortgage coupled with the provisions of the MERS membership agreement, is “more than sufficient to create an agency relationship between MERS and lender and the lender’s successors in interest” under New York law and as a result establish MERS’s authority to assign the Mortgage.

Okay, so that’s much of what MERS has to say about why it’s practices are fine and dandy, now let’s take a quick look at what the judge in this case has to say about the assignment of the note, among other things…

Noteholder Status

In the Motion, the Movant asserts U.S. Bank’s status as the “holder” of the Mortgage.

However, in order to have standing to seek relief from stay, Movant, which acts as the representative of U.S. Bank, must show that U.S. Bank holds both the Mortgage and the Note. Mims, 438 B.R. at 56. Although the Motion does not explicitly state that U.S. Bank is the holder of the Note, it is implicit in the Motion and the arguments presented by the Movant at the hearing.

However, the record demonstrates that the Movant has produced no evidence, documentary or otherwise, that U.S. Bank is the rightful holder of the Note.

Movant’s reliance on the fact that U.S. Bank’s noteholder status has not been challenged thus far does not alter or diminish the Movant’s burden to show that it is the holder of the Note as well as the Mortgage.

Under New York law, Movant can prove that U.S. Bank is the holder of the Note by providing the Court with proof of a written assignment of the Note, or by demonstrating that U.S. Bank has physical possession of the Note endorsed over to it. See, eg., LaSalle Bank N.A. v. Lamy, 824 N.Y.S.2d 769, 2006 WL 2251721, at *1 (N.Y. Sup. Ct. Aug. 7, 2006).

The only written assignment presented to the Court is not an assignment of the Note but rather an “Assignment of Mortgage” which contains a vague reference to the Note.

Tagged to the end of the provisions which purport to assign the Mortgage, there is language in the Assignment stating “To Have and to Hold the said Mortgage and Note, and also the said property until the said Assignee forever, subject to the terms contained in said Mortgage and Note.” (Assignment of Mortgage (emphasis added)).

Not only is the language vague and insufficient to prove an intent to assign the Note, but MERS is not a party to the Note and the record is barren of any representation that MERS, the purported assignee, had any authority to take any action with respect to the Note. Therefore, the Court finds that the Assignment of Mortgage is not sufficient to establish an effective assignment of the Note.

By MERS’s own account, it took no part in the assignment of the Note in this case, but merely provided a database, which allowed its members to electronically self-report transfers of the Note.

MERS does not confirm that the Note was properly transferred or in fact whether anyone including agents of MERS had or have physical possession of the Note. What remains undisputed is that MERS did not have any rights with respect to the Note and other than as described above, MERS played no role in the transfer of the Note.

Absent a showing of a valid assignment of the Note, Movant can demonstrate that U.S. Bank is the holder of the Note if it can show that U.S. Bank has physical possession of the Note endorsed to its name. See In re Mims, 423 B.R. at 56-57.

According to the evidence presented in this matter the manner in which the MERS system is structured provides that, “when the beneficial interest in a loan is sold, the promissory note is transferred by an endorsement and delivery from the buyer to the seller [sic], but MERS Members are obligated to update the MERS^® System to reflect the change in ownership of the promissory note. . . .” (MERS Supplemental Memorandum of Law at 6).

However, there is nothing in the record to prove that the Note in this case was transferred according to the processes described above other than MERS’s representation that its computer database reflects that the Note was transferred to U.S. Bank.

The Court has no evidentiary basis to find that the Note was endorsed to U.S. Bank or that U.S. Bank has physical possession of the Note. Therefore, the Court finds that Movant has not satisfied its burden of showing that U.S. Bank, the party on whose behalf Movant seeks relief from stay, is the holder of the Note.

So, the judge is saying things that are very similar to what we’ve all heard before, most recently in the Ibanez Decision by the Massachusetts Supreme Court, and in the New Jersey court decision, Kemp v. Countrywide, among numerous others of late.  How was the note assigned, was it endorsed properly, can the trustee even produce any evidence that the trust is the holder of the note?

What it would seem to come down to is quite simple, I think…

Does the trust that thinks that it owns the loan, actually own the loan, and can the trustee produce any evidence that it does own the loan?

If the loan was not properly transferred into the trust, and if there is no evidence that the trust owns the loan in question, then it would seem that the investor bought a mortgage-backed security without the mortgage-backed part, and my guess would be that the investors at this point don’t care about the mortgages… they will want their pound of flesh from the bankers whose massive securities fraud has robbed them of untold billions and destroyed the global financial system.

I’m not a lawyer, but with the first investor lawsuit against Bank of America – Countrywide having been filed just a couple weeks ago, and saying basically that the investor was delivered mortgage-backed securities without the mortgages, that’s how I’m seeing it start to stack up.

Now let’s look at what the judge says about the mortgage itself… you see… it’s supposed to follow the note, but when MERS is in the game, it simply doesn’t.

Mortgagee Status

The Movant’s failure to show that U.S. Bank holds the Note should be fatal to the Movant’s standing.

However, even if the Movant could show that U.S. Bank is the holder of the Note, it still would have to establish that it holds the Mortgage in order to prove that it is a secured creditor with standing to bring this Motion before this Court.

The Movant urges the Court to adhere to the adage that a mortgage necessarily follows the same path as the note for which it stands as collateral. See Wells Fargo Bank, N.A. v. Perry, 875 N.Y.S.2d 853, 856 (N.Y. Sup. Ct. 2009).

In simple terms the Movant relies on the argument that a note and mortgage are inseparable. See Carpenter v. Longan, 83 U.S. 271, 274 (1872).

While it is generally true that a mortgage travels a parallel path with its corresponding debt obligation, the parties in this case have adopted a process, which by its very terms alters this practice where mortgages are held by MERS as “mortgagee of record.”

By MERS’s own account, the Note in this case was transferred among its members, while the Mortgage remained in MERS’s name.

MERS admits that the very foundation of its business model as described herein requires that the Note and Mortgage travel on divergent paths. Because the Note and Mortgage did not travel together, Movant must prove not only that it is acting on behalf of a valid assignee of the Note, but also that it is acting on behalf of the valid assignee of the Mortgage⁵.

Footnote 5 – MERS argues that notes and mortgages processed through the MERS System are never “separated” because beneficial ownership of the notes and mortgages are always held by the same entity.

The Court will not address that issue in this Decision, but leaves open the issue as to whether mortgages processed through the MERS system are properly perfected and valid liens. See Carpenter v. Longan, 83 U.S. at 274 (finding that an assignment of the mortgage without the note is a nullity); Landmark Nat’l Bank v. Kesler, 216 P.3d 158, 166-67 (Kan. 2009)

(“In the event that a mortgage loan somehow separates interests of the note and the deed of trust, with the deed of trust lying with some independent entity, the mortgage may become unenforceable”).

Yes, you read that last part right.  The mortgage may become unenforceable.  That’s really the 800-pound Gorilla in the room, isn’t it?  Do they own it or not, and if they broke the laws, who wins?

Many people get all upset about the idea that a homeowner could not have to pay their mortgage because the laws were broken related to the transfer of the note and mortgage, but I’m starting to think they’re just a bunch of crybabies.  The law is the law and if it says that someone doesn’t owe their mortgage, well… good for them.

We’re a nation built on laws and forged by lawyers, and there have been a lot of unpopular decisions that rightly stood because they upheld our nation’s laws… Brown v. The Board of Education comes immediately to mind, but there are many.

We need our plaintiff’s lawyers, our judges and our courts, if we’re going to live through what’s ahead of us.  We certainly can’t depend on our legislature or our executive branches… they have, for the most part, been bought and paid for… our system is corrupt with the money of lobbyists.  Only our laws and our courts can see us through this, and I’m willing to abide by whatever they say follows the law.

Okay, so here’s just a bit more from Judge Grossman’s analysis and conclusion…

MERS asserts that its right to assign the Mortgage to U.S. Bank in this case, and in what it estimates to be literally millions of other cases, stems from three sources: the Mortgage documents; the MERS membership agreement; and state law.

In order to provide some context to this discussion, the Court will begin its analysis with an overview of mortgage and loan processing within the MERS network of lenders as set forth in the record of this case.

In the most common residential lending scenario, there are two parties to a real property mortgage – a mortgagee, i.e., a lender, and a mortgagor, i.e., a borrower. With some nuances and allowances for the needs of modern finance this model has been followed for hundreds of years.

The MERS business plan, as envisioned and implemented by lenders and others involved in what has become known as the mortgage finance industry, is based in large part on amending this traditional model and introducing a third party into the equation.

MERS is, in fact, neither a borrower nor a lender, but rather purports to be both “mortgagee of record” and a “nominee” for the mortgagee.

MERS was created to alleviate problems created by, what was determined by the financial community to be, slow and burdensome recording processes adopted by virtually every state and locality. In effect the MERS system was designed to circumvent these procedures. MERS, as envisioned by its originators, operates as a replacement for our traditional system of public recordation of mortgages.

MERS argues that it had full authority to validly execute the Assignment of Mortgage to U.S. Bank on February 1, 2008, and that as of the date the foreclosure proceeding was commenced U.S. Bank held both the Note and the Mortgage.

However, without more, this Court finds that MERS’s “nominee” status and the rights bestowed upon MERS within the Mortgage itself are insufficient to empower MERS to effectuate a valid assignment of mortgage.

There are several published New York state trial level decisions holding that the status of “nominee” or “mortgagee of record” bestowed upon MERS in the mortgage documents, by itself, does not empower MERS to effectuate an assignment of the mortgage.

However, the rules lack any specific mention of an agency relationship, and do not bestow upon MERS any authority to act. Rather, the rules are ambiguous as to MERS’s authority to take affirmative actions with respect to mortgages registered on its system.

That’s pretty clear, I think.  MERS, you’re going down.

In addition to casting itself as nominee/agent, MERS seems to argue that its role as “mortgagee of record” gives it the rights of a mortgagee in its own right.

MERS relies on the definition of “mortgagee” in the New York Real Property Actions and Proceedings Law Section 1921, which states that a “mortgagee” when used in the context of Section 1921, means the “current holder of the mortgage of record . . . or their agents, successors or assigns.” N.Y. Real Prop. Acts. L. § 1921 (McKinney 2011).

The provisions of Section 1921 relate solely to the discharge of mortgages and the Court will not apply that definition beyond the provisions of that section in order to find that MERS is a “mortgagee” with full authority to perform the duties of mortgagee in its own right.

Aside from the inappropriate reliance upon the statutory definition of “mortgagee,” MERS’s position that it can be both the mortgagee and an agent of the mortgagee is absurd, at best.

Okay, so some of that gets a little technical, I agree, but the last sentence is about as straightforward as it gets… MERS’s position that it can be both the mortgagee and an agent of the mortgagee is absurd, at best. And wait… there’s just a little bit more…

Adding to this absurdity, it is notable in this case that the Assignment of Mortgage was by MERS, as nominee for First Franklin, the original lender.

By the Movant’s and MERS’s own admission, at the time the assignment was effectuated, First Franklin no longer held any interest in the Note.

Both the Movant and MERS have represented to the Court that subsequent to the origination of the loan, the Note was assigned, through the MERS tracking system, from First Franklin to Aurora, and then from Aurora to U.S. Bank. Accordingly, at the time that MERS, as nominee of First Franklin, assigned the interest in the Mortgage to U.S. Bank, U.S. Bank allegedly already held the Note and it was at U.S. Bank’s direction, not First Franklin’s, that the Mortgage was assigned to U.S. Bank.

Said another way, when MERS assigned the Mortgage to U.S. Bank on First Franklin’s behalf, it took its direction from U.S. Bank, not First Franklin, to provide documentation of an assignment from an entity that no longer had any rights to the Note or the Mortgage.

The documentation provided to the Court in this case (and the Court has no reason to believe that any further documentation exists), is stunningly inconsistent with what the parties define as the facts of this case.

However, even if MERS had assigned the Mortgage acting on behalf of the entity which held the Note at the time of the assignment, this Court finds that MERS did not have authority, as “nominee” or agent, to assign the Mortgage absent a showing that it was given specific written directions by its principal.

This Court finds that MERS’s theory that it can act as a “common agent” for undisclosed principals is not support by the law.

The relationship between MERS and its lenders and its distortion of its alleged “nominee” status was appropriately described by the Supreme Court of Kansas as follows: “The parties appear to have defined the word [nominee] in much the same way that the blind men of Indian legend described an elephant – their description depended on which part they were touching at any given time.”

For all of the foregoing reasons, the Court finds that the Motion in this case should be granted. However, in all future cases, which involve MERS, the moving party must show that it validly holds both the mortgage and the underlying note in order to prove standing before this Court.

February 10, 2011

Hon. Robert E. Grossman United States Bankruptcy Judge

~~~

It’s very important to realize that the judge’s findings related to MERS in this case are NOT BINDING ON ANY COURT.

As foreclosure defense attorney Thomas Cox explains:

“Judge Grossman’s findings about MERS are not binding on anyone, because they did not resolve any issue in the case where Rooker-Feldman blocked that inquiry.”

Cox says he won’t be surprised if the MERS/securitization/foreclosure industry spin mentions this point since the law prohibited the judge from going behind the judgment to see how U.S. Bank got the mortgage, then it also prohibited making binding findings about the MERS issue.

Cox further points out…

“On the other hand, with that being so, I am highly doubtful that U.S. Bank and Select Portfolio Servicing could appeal from those MERS holdings because their position in the case was not affected by them.  While the judge did allow them to intervene, since the judge’s opinions about MERS are not binding on any court, I do not see how MERS could effectively argue that it suffered a legally cognizable harm.  If and when Judge Grossman, or some other judge, in some other case uses the rationale laid out by Judge Grossman to nullify a MERS mortgage assignment, only then will a trustee and/or MERS have any ability to appeal the issue.”

Okay, so that about covers it, I’d say.  Below you’ll find the Judge Grossman’s decision in its entirety, and hat tip to attorney Thomas Cox of Portland, Maine for bringing this decision to my attention, helping me to understand it, and continuing to go after the bastards with the strength and tenacity of a Mainer.

Mandelman out.

In re: Ferrel L. Agard, Debtor

https://www.nolanchart.com/article4132-the-business-of-child-stealing-in-florida-html#comment-15058

Under 5 years, blond, blue-eyed – $6,000.00. a top of the line product

We are going to take you behind the lies into the ugly truth that is destroying families for profit every day, in every community across America.  You won’t want to believe it but when you see their faces, hear their voices, you will understand why this is happening and what it means to your own life, even if you don’t have children.

The same system that views children as commodities to be sold also has plans for you.  There is a solution and we will get to that.

The CPS steals children using the system paid for by citizens who believe it is being used to protect those in need.  That is a fraud; the system actually pumps money into the personal accounts of all those involved in the system, converting children into cash while destroying them and their families.  The number of children who emerge from the system, able to function normally, are near zero.  Some are never seen again.

The system used includes three stages.  The first phase is to shock and intimidate the parents into consenting to let their children be processed into the system.  The second phase is to force parents, terrified for their children, to begin a process of ‘case management.’  That process is a template that is designed to push the parents into emotional meltdown and bankruptcy.  The third phase is to sever the parental rights entirely and sell the children.

In the wake of this trauma families are atomized, destroyed.  Parents and grandparents never again see the children who connect them to the future.  Children lose their past and the anchoring each of us needs to develop into a healthy human being.

Those who carry the process through the stages are well compensated.  Agents, Case workers, judges, physicians, clerks, and others expect and receive compensation for services often not even delivered.  Compensation takes place through corporations.  State employees who fail to take children out of homes are penalized; many of these leave the system which has been converted from a system originally intended to help families to one that profits those in control.

Across the country, CPS experienced high turn overs in case workers struggling under impossible work loads for many years.  Good people, motivated to help struggling families were frustrated and unable to help; those are the kinds of caseworkers who simply quit.  Cases of extreme abuse while children were in foster care were common.  Nothing about the system gave cause for hope it was working.  Then the picture changed.  The idea that instead of providing services the system as a whole should move to the model of generating income took hold as the concept of privatization was widely adopted by government. Privatization, introduced during the Reagan Years, was pushed by think tanks that saw government, a corporation itself, as the logical partner for other large corporate interests. Children, roads, military services, each of these and more were recalibrated to provide income to those in control.  In this way, the problem with social services created an opening that in the late 1990s allowed the least ethical to profit from the pain of others.

PL 105-89 (HR 867), passed into law November 19, 1997, was intended to ensure that children who could not be reunited with their birth families could be placed in loving homes.  But those entrusted to carry out the desperately needed changes found the measure enabled a very different agenda. CPS agents and caseworkers could be trained to look at their industry as a profit center.  The system began to view children as product to be harvested and parents as barriers to be demolished.

The system became a template for kidnapping, carried out by barely educated caseworkers who were told that they made the law.  This itself had become a tenet of belief held by those in power as the foundations of Constitutional law continued to be eroded by a judiciary who graduated from law school ignorant of America’s foundational documents.  The shift from Constitutional law to statute and whim of court, low-level government employee, and law enforcement is documented in “The Anti-Government Movement Guidebook,” published by the  National Center for State Courts in1999.

The stage was set and the feeding frenzy was about to begin.

The process goes through three stages of slow death; ripped from their families the children are bewildered, afraid, vulnerable to the system.  The process hinges on secrecy and an asserted immunity from accountability for all involved.  Power, through the official but unacknowledged transfer from the Constitution to government by statute, code and whim, renders all of those outside government vulnerable.  Caught in that process parents lose track of all the things that brought happiness and normality to their lives.  Years later this will mark them.  Most will never recover.

This is the story of three families.  Each of their stories is still in motion because the pain never stops.

Stage One

Manatee County, Florida has long made a business of stealing children.  Families who settle there do not know that, however.  They are attracted to the weather, the beauty of the area.  If they knew they would never settle anyplace in Florida, which is arguably has the most corrupt CPS system in the nation.  The County is run by a Board of Commissioners who meet at this well polished table.

Children are a commodity for which there is a steady and growing market both in the United States and across the world.  Child sex-slaves arrive in Europe and elsewhere from unspecified locations; children taken from homes routinely end up in the porn industry.  It has been going on for many years but since it did not impact most of us it was easy to ignore.  But as counties across the country have cycled down into bankruptcy the need to pump harder for every buck to be made has become more compelling.  Today it is not just the most vulnerable who are targeted but families that would before have been passed over as too well connected.  In Manatee County the pumping is in fast forward.

Monday, June 2^nd 2008

The two young sons of the Roberts were dropped off at the home of their babysitter, Christina Holbrook, residence11534 57^th Street Circle East, Parrish, Florida.  Both parents work.  Michelle and James Roberts are both veterans of the US Navy who met while in service to their country.  Both came from families with long and honorable histories of serving in the military.

Their oldest son, had been disciplined by his father the day before for jumping up and down on his baby brother, a potentially life-threatening activity.  Spanking was the kind of discipline James himself experienced as a child growing up in Tennessee.  The spanking had left a slight bruise.

CPS arrived at the babysitter’s home at 9:30am.  They proceeded to strip the two boys and photograph them in the nude, questioning them for an hour. This was a bewildering and frightening experience for the boys.

The first James and Michelle heard of this was when Michelle received a phone call at 3:30pm from Alicia Habib.  Habib presented herself as an agent for Child Protective Services, demanding that the couple present themselves for an ‘interview’. No criminal complaint was presented.  But the process of intimidation and fear was launched.

Here, Michelle and James find out, to their shock, that the kids have been stripped and photographed.  Left feeling as if the ground had been cut out from under them they endured with shock the moment when the deputy sheriff read James his Miranda rights.  He was not charged; no criminal complaint was served.  Michelle is interviewed.  They are given orders.  Michelle is to be present when James saw their children.  CPS is moving towards building paperwork to take the children away from their parents.

During the interview they were shown the photos taken of their naked children by the deputy.  The children’s faces were frozen in tears.  He did not show them all the photos, keeping them under the paperwork.  Michelle found his behavior intimidating.  As the photos were shown he questioned her about their use of discipline.

Soon Michelle and James will realize that the CPS has no power unless they give it to them.  CPS depends on the ignorance of ordinary people.  The first phase had begun.

The system ground them out fine; dehumanizing them and working with fine-tuned intention to show them, by its actions, that they had no rights and no recourse.  At the end of the week a hearing was set; they were now being launched into the second phase of the process that intended to wrest their children from them.  But during those endless days they began to come out of the shock and consider their alternatives.  They considered the Constitution and the rights they knew they had both sworn to defend as members of the armed forces of America.

Michelle loaded the two boys in their car and drove them hundreds of miles to the town where James had grown up.  There, she left them with their great-grandparents.  When you are seven months pregnant no long drive is comfortable, but for her children Michelle would risk anything.

In the car she prayed that she would not miscarry the baby held so close to her heart.

The two young parents are both veterans of the War in Iraq. Each had joined the Navy, after looking forward to serving their country from their early teems.   She planned this as her career, since 7^th Grade.  He, since taking in ROTC in High School.

But they had joined a military that they believed cared for its own and kept its promises; after finding that their small son would be have to be left with someone else while both served in the war zone, they resigned.  Their son, Lukas, was born the following October.

Now, they knew what the military is about.  To them, they were just bodies to fill slots that civilians could fill at twice the pay.  Never previously interested in politics they began to think about how the world was being run.

From the time you join you are told he is your commander and chief.  She was not a Bush fan, but you cannot say it without fear of reprisal.

But Florida CPS was not finished with them.  Although they did not know it, Habib stood to make nearly $10,000 as her bounty for taking the children, both very adoptable, from their home.

They never could have imagined that the elderly great-grand-parents would be threatened with arrest, but that is what happened.  They began studying the Constitution; This, they knew was the real law in America.  If they understood it they could use it.

Now they understand that they should never have talked to CPS.  If they had not, CPS would have had to leave them alone.  CPS uses fear and intimidation to force the appearance that there they have entered into a ‘contract’ with parents.  But since a valid contract cannot exist without the elements of disclosure, consent, and equitable exchange this is a fraud.  All parents get is bankruptcy, heartbreak, and too often death.

The Case Plan Ploy – Adam Umholtz

Adam comes from a family that lived in a log cabin in Pennsylvania.  The cabin was 230 years old. Made of chestnut beams that are from a species that is not extinct the beams were hand hewed and rectangular and criss crossed.  Adam’s dad was a pastor for the Southern Home Mission Board.  Adam’s younger brother was born there, in the horseshoe shaped valley that was filled with berry bushes and food they grew themselves.

Adam went to school at the Advanced Training Institute of America, now the ATI.  Now he is an entrepreneur, or was until his life and family was hijacked by the CPS.  Adam’s children were taken from him and his wife on Monday, July 28^th, 2007.  They were given a case plan that it was impossible to fulfill.

As part of the 72 goals laid out in the plan was one requirement that Adam attend a class for sexual offenders who had served time in prison.  This was impossible for Adam to do.  Adam is attending a study on successful parents and couples, a study in which he and his wife were invited to participate.  Both parents are strong Christians who take their faith seriously. Neither parent has ever been to prison for any cause, much less a sexual offense.  The charges were falsified made by a neighbor who was later charged with having committed a sexual offense themselves.

Adam cannot attend the classes available because he has never been to prison and has never been a sexual offender. He is not eligible for the class in any case. So the court told Adam to confess to a crime he did not commit to get his kids back.  The court has an agenda.  If Adam confesses they have a clear track for severing his parental rights.  The lack of justice does not bother the court or the attorney who has urged him to confess to a crime he did not commit. They are all paid through the process that steals children for resale.

Parents are routinely told that to ‘complete their case plan’ they must fulfill requirements that force them to leave jobs that prevent them from attending classes scheduled from 9 – 5 on work days.  They are told they cannot be self employed.  Every possible block is put in their paths to complete a ‘requirement’ that is pointless in any case.  The same pattern is reported by parents across the United States.  Angelina Alexander, a parent in California was told she must quit her job as a taxi driver because she was self employed.  Yet she had taken the job, the only one she could find, to fulfill the requirements to attend classes.  In her case the report that took her small son from her home was from a former boyfriend who had never seen the child.  Complaints that the charge was false were ignored as her processing continued.

Mainstream Americans are at risk today and have no idea what is coming. In Adam’s case the CPS had targeted  the kids because they were homeschooling and because they had building materials in the back yard.  Then a malicious neighbor,  made sexual allegations.  The neighbor was later proven to have lied.

But the fact that all the ‘charges’ were illegal did not stop them from forcing you to undertake the  ‘Case Plan.’  There were no charges but they had already taken their eight children out of the home.  If the family had known they would have refused to talk to CPS.

Adam and his wife are now approaching bankruptcy although they are better off than many couples because at least they do not have to hide to keep the child still living with them. Most parents face the same problem.  Attempts to fulfill the case plan make it impossible to earn a living or are impossible to fulfill.  There are no charges.  There have been no charges.  There will be no charges. As with most couples, they force the father to leave so that they will have a clear shot at grabbing the children from the mother.

CPS has continuously made false allegations, added their youngest child, born after they took the original eight children, to the present case, and over and over ignored the orders of the court.  One of their daughters in foster care is suffering from a wound on her foot, acquired in the foster home, for which she is receiving no treatment.  The wound continues to fester and they can do nothing.

Although there are no charges Adam and his wife are allowed to see the kids only two hours a week with supervision.  And the court continues to threaten to sever their parental rights. Adam does not intend to let that happen.

Adam and his wife are considering their options now that they understand the fraud that has been perpetrated.  Those options are growing, along with their understanding of the Constitution and how the system in place has worked to negate their rights.

Phase Three – Severing Parental Rights

Greg Pound and his wife, Malissa, had their parental rights severed in November of 2007.  The incident that brought CPS into their lives was a simple accident.  A friend’s dog visiting their home bit their baby.  It could have happened to anyone; the dog’s owner was desperately sorry, the dog had never  harmed anyone before.   Accidents happen.  There was a time when an accident was treated with offers of assistance, not viewed as the means for grabbing children  from their parents and their home.  But that was before those in power noticed the opportunity PL 105-89 (HR 867) offered them.

For four years the Pounds saw their children for just two hours a month.  Looking at the children, across the barriers built by CPS always reduced them to tears.

The last time the Pounds saw their children was at the YMCA in Pinellas County.  That ‘not for profit’ is paid 125 million a year, just for that county, according to Pound who says he has researched the subject exhaustively, to ‘babysit’ kids as they meet their parents in a stark ten by twelve foot room for the two hours they are allowed to be together for those months when they still hoped to be reunited.

The system is intended to separate children, a valuable commodity, from their parents.  Mandates to reunite children and parents are consistently ignored as children are processed further and further into the system. What then happens to the children varies, but is in all cases appalling.

Along with the system abuse of families parents attempting to work in the system report that FOIA requests on such routine matters as copies of the Oath of Office and bonds, required by the Constitution, for each judge or elected official or law enforcement officer, are not produced, despite repeated requests. Many ask, over and over again, why such requests should be met with silence and hostility.  Parents continue to struggle to regain custody of their children and to exact accountability from those who claim sovereign immunity as government employees from the impact of their acts on ordinary Americans.  The claim of sovereign immunity for those employed by government is, according to Constitutional experts such as not employed by government entirely without foundation.

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Melinda Pillsbury-Foster

http://www.miamiherald.com/news/health-care/article178481256.html

Nursing Homes abusively drugging elderly patients with mind-altering drug

Friday, October 13, 2017 by: Isabelle Z.

Tags: Alzheimer’s disease, Avanir, Big Pharma, dementia, drug cartels, elderly, kickbacks, medical abuse, mind altering drugs, Nuedexta, nursing homes, PBA, psychiatric drugs, psychiatry

(Natural News) We’ve heard a lot in recent years about nursing homes overmedicating their patients with psych drugs to sedate them in order to make them easier to manage, a heartless practice that puts their lives in jeopardy. This still occurs to a disturbing degree, but tighter regulations by the government on dangerous antipsychotic drugs have forced doctors and nursing homes to be a bit more creative about how they go about medically controlling patients they consider unruly.

Enter pharmaceutical company Avanir and its little red pill called Nuedexta, which is a combination of a generic heart medication and cough suppressant and has a similar calming effect on patients. There’s just one small glitch, however: Nuedexta has only been approved to treat a disorder called pseudobulbar effect, or PBA. Marked by sudden episodes of uncontrollable crying or laughing, it affects only a tiny portion of Americans – less than 1 percent – and is mainly found in those suffering from ALS or MS.

Why, then, has the number of pills for this rare condition jumped by 400 percent in just four years, bringing the total sales of Nuedexta close to $300 million last year? The answer can be found in Avanir’s aggressive sales push to expand the use of the drug among elderly patients who have Alzheimer’s and other forms of dementia. Hoping to exploit this huge and ever-growing potential customer base, their savvy marketers and sales people have been trying to convince doctors to diagnose patients who are difficult to manage with PBA so they can be given the drug – and they’ve found plenty of doctors who are willing to play ball.

A very thorough investigation by CNN exposes the lengths this company has gone to in order to get the drug to as many people as possible, even though in many cases it is not only unnecessary but also quite dangerous. The prescribing information for the drug itself clearly states that it has not been studied extensively in elderly patients, making this widespread use little more than an uncontrolled experiment on uninformed participants. The single study that was carried out on Alzheimer’s patients actually found that those who took the pill had twice as many falls as those taking a placebo, and many people have reported a severe decline in their loved ones’ conditions after going on the medication.

The company insists that PBA is “misunderstood,” and their website states it can affect as many as 40 percent of dementia patients, but this figure is based on a survey the drug maker funded themselves and has been disputed repeatedly by experts. In fact, geriatric physicians and other medical experts informed CNN that PBA only affects less than five percent of dementia patients.

Another questionable FDA approval

During the drug’s FDA approval process, two of the key doctors on the committee expressed concerns about using Nuedexta for PBA in people with Alzheimer’s, strongly recommending that the drug only be approved for PBA in those with ALS or MS. They said that there wasn’t enough information about its safety, evidence of its efficacy was weak, and that it wasn’t even clear if Alzheimer’s patients can have PBA in the first place. Nevertheless, the agency approved the drug for PBA in neurological conditions like dementia. It didn’t take long for the first reports to come through of adverse events, from rashes and dizziness all the way to comas and even death.

Doctor payouts common

State regulators have found plenty of instances where doctors are inappropriately diagnosing patients in nursing homes with the condition for the express purpose of justifying Nuedexta use, with salespeople deliberately targeting facilities that had records of using high levels of antipsychotics before the crackdown and would therefore be more receptive to using Nuedexta.

One Los Angeles nursing home had placed more than a quarter of its residents on the drug, and it was discovered that the facility’s psychiatrist was a paid speaker for Avanir who had given a talk about the medication to employees. An employee at another California facility admitted that a resident was given a false PBA diagnosis to justify Nuedexta in hopes of controlling the resident’s “mood disturbances.”

Avanir paid out nearly $14 million for Nuedexta-related consulting and promotional speaking from 2013 to 2016, and they spent $4.6 million on dining and travel costs for speakers and doctors who salespeople were courting. Not surprisingly, Medicare’s top prescriber of the drug in 2015 had been given $612,000 in payments, travel and meals from Avanir. As long as these practices are allowed to continue, we will probably see much more of this type of behavior. That’s why it’s always a good idea to pay close attention to the medications your elderly loved ones are being prescribed and question whether they are truly necessary.

Sources include:

Edition.CNN.com

Edition.CNN.com

http://chicago.cbslocal.com/2017/05/16/2-investigators-alderman-threatens-to-ruin-landlords-business/

When Chicago graft and corruption is caught on video……

This is the dark side of Chicago everyone knows about. You tick off your alderman, you’re good as dead.

Obviously this guy Moreno is a psychopath and needs to be tested with a PET brain scan and removed–if the FBI doesn’t just give him a set of matching silver bracelets for threats, malfeasance, misfeasance and Dishonest Services.

(CBS) – A building owner says a Chicago alderman threatened him over the closing of the Double Door music club – comments that were caught on cell phone video.

What the alderman said is raising questions about his power and whether he went too far.

2 Investigator Dave Savini reports.

The video shows Ald. Proco Joe Moreno (1st) talking with building owner Brian Strauss.

“I’m going to tell you right now, I don’t trust you,” Moreno says.

“Don’t trust me for what?” Strauss asks.

“I don’t trust your word. I don’t think you’re a man,” the alderman responds.

At one point, Moreno points in Strauss’s face.

The building they are standing in front of — and arguing about — is at the corner of Milwaukee and Damen. It housed historic music venue Double Door for two decades, until Strauss evicted the business in February.

Strauss said the video was taken the day of the eviction. The alderman knew he was being recorded, he says.

In the video, Moreno says he’s upset over the “tragedy” of the club’s closing.

“It’s a part of life,” Strauss says.

“Right,” Moreno says. “And part of life is also that you’re not going to have a tenant in here for three years.”

The fight reportedly stems from Moreno wanting to keep the Double Door, a campaign donor, in the building.

“I felt that he was intimidating me and that that he was threatening me,” Strauss tells Savini.

Strauss claims the alderman tried to convince him, at a City Hall meeting, to sell the building to Double Door for millions less than its worth. Strauss said no.

While Strauss fought in court to vacate Double Door’s lease, Moreno introduced an ordinance to change the building’s zoning. Called “down zoning,” it would restrict the type of commercial and residential renters Strauss can sign.

“You can’t sign new leases for your tenants,” Moreno says. “It’s going to be an empty building with no income for you or your family. End of conversation.”

Faisal Khan, the former Chicago Inspector General, now runs government watchdog group Project Six, which has reported on the incident.

“It’s business owner’s worse nightmare,” Khan says about what was on the video. “What troubled me the most were the aldermanic threats.”

One of the threats involved sending building inspectors to the site.

“I’m going to have inspectors here on a daily basis, you watch,” Moreno says.

Strauss responds: “Listen, you can threaten me all you want.”

“I’m not threatening you,” Moreno says. He predicts the building owner would come back to him, on his knees.”

Reached by Savini, Moreno says he has done nothing wrong.

“I’m glad the video is out there,” he says.

“That’s the way it goes. People get heated.”

As the argument ended on the tape, Moreno walked over to one of the Double Door owners, shook hands and said, “I can’t be more frank than that.”

Moreno says it’s his job to protect community institutions like Double Door. He also says there are a lot of problems at the building and he wants to make sure the building is safe.

Strauss says any past violations were minor and have been repaired or in the process of repair. He plans to sell the building to a private developer.

The Double Door’s Sean Mulroney issued his own account of the lease dispute:

“After extended litigation and extensive settlement discussions, Mr. Strauss decided to lock out Double Door from the place where we had been a tenant for almost 24 years. Mr. Strauss terminated the lease under particularly dishonest circumstances after accepting substantial additional monies from Double Door and realizing the benefit of almost $100,000 in improvements just a year prior.

At the request of the Mayor’s office and with the participation of Alderman Moreno, Alderman Solis and Commissioner Reifman, the parties attempted to work through the matter and provide a reasonable solution for all. Mr. Strauss did not participate in good faith. It was at that meeting the he was informed that the change in zoning was not an unusual step for an alderman to take in order to protect the integrity of the community. In this case Milwaukee Avenue is a protected boulevard and consequently, there is a heightened need to insure that any new use conform with that designation and the wishes of the community.

Double Door no longer has any skin in the game so to speak. We are excited about the prospect of reopening in a space with a landlord that appreciates being paid on time and without issue. We were grateful for the attention of Alderman Moreno and worked closely with him to be a part of Wicker Park, just as we did with his predecessor, Alderman Manny Flores.

Mr. Strauss has been mis-advised and poorly represented by the counsel he chose to represent him. It would have been to his benefit to have hired an attorney with experience in city and zoning matters. All the information was there in front of him. He just didn’t want to see it.”
Dave Savini
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Award-winning Chicago journalist Dave Savini serves as investigative reporter for CBS 2 Chicago. Savini, whose exclusive investigations have earned him broadcast journalism’s top honors, began work at CBS 2 Chicago in July 2004. He was awarded…

http://www.wxyz.com/news/local-news/investigations/metro-detroit-woman-says-probate-guardianship-case-is-tearing-family-apart

You know, I have to tell you this reminds me of Adam Stern, when Ken’s lawyer cross examined him on the witness stand about how the court appointed guardian allowed Mary Sykes, then about 91 years old, to suffer a sever throat infection, a high temperature, never got her antibiotics or took her to the doctor and she could not eat and lost 10% body weight down to well below normal body weight and he merely and calmly stated to the court “well old people get sick and die all the time.  that does not mean anyone’s at fault.”   Ewwww creepy and cold. Why isn’t he tested for psychopathy with a PET brain scan and if he has it, he needs to be banned on the 18th floor.

Actually, just have all the lawyers and judges tested for psychopathy with a PET brain scan and delicense them.  I’m not sure what job they can do where they won’t be a threat to the public, but right now we’re in crisis mode where the ARDC and other regulatory agencies refuse to test for psychopathy and let all sorts of horrible, unfeeling and uncaring people be put in positions of power and control over children, the elderly, the disabled and anyone in a vulnerable position.

http://www.wxyz.com/news/local-news/investigations/metro-detroit-woman-says-probate-guardianship-case-is-tearing-family-apart

another horrible story of abuse via lawyers, judges and a psychopathic court system.

Total strangers – lawyers who double as public officials – are taking over the lives of some of the most vulnerable people in our community – senior citizens and others who are disabled.

Several Metro Detroit families say they’ve now lost all control over their parents’ health care decisions and their finances.

Note:

At the last minute Thursday, the attorneys for two of those siblings in this case, Lorrie and Sandy Kapp, went to a judge to try to stop WXYZ-TV and the 7 Investigators from showing you this investigation.

Instead, Judge Daniel A. O’Brien issued a court order, saying 7 Action News cannot show any images of the Kapp’s parents, so you won’t see their faces in this story.

A hearing on our objections to the order is scheduled for Tuesday.

911 Call: “911 what’s your emergency?  Yes, my dad fell out of bed.”

At least 37 calls to 911 in just 10 months.

911 CALL:  “I need you to stop yelling! I need you to stop… Mom, be quiet” Operator: “911 where is your emergency?  West Bloomfield.”

Mila Kapusta says those are the kinds of emergency calls that have been made from her parents West Bloomfield condo, ever since a court-appointed guardian took over their lives.

“I really can’t talk about it, because I will break down.  It’s hard to watch your loved ones suffer.  That’s the hardest thing,” said Kapusta.

Mila’s father, Milan, is 94, and her mom, Janet is 93.

Mila tells the 7 Investigators that they both have dementia and need round-the-clock care, which she was helping to provide until she says one of her sisters locked Mila out of the house.   Mila says she suspected abuse and went to Oakland County’s Probate Court.

“We noticed that my father had a pressure sore.   And my parents were sleeping in their own urine,” said Mila.  She says she wanted to take over the caregiving for her parents, but instead the judge created a visitation schedule for all four siblings.  Now Mila is only allowed to see her parents three days a week.

During that November 23, 2016 court hearing, Oakland County Probate Judge Daniel A. O’Brien said on the record, “I’m appointing a public administrator, Barbara Andruccioli” as Milan and Janet Kapp’s guardian and conservator.  That means the Kemp Klein attorney had total control over their lives, including their health and their money.

“Things went downhill from there,” said Mila.

A Public Administrator is an attorney who’s appointed by the state Attorney General to handle estates after someone dies without an heir.  The Public Administrator law says nothing about them being guardians for someone who’s living, but that’s how they’re often being appointed.

“When the judge finds disharmony between family members, they’re using that as an excuse to not find suitability.  And they’re appointing these public administrators because they think it will stop the anxiety between families,” said attorney Douglas Kuthy, who’s representing Mila Kapusta.

“Andruccioli never resolved anything.  She never did anything,” said Mila.

With Andruccioli in charge of the Kapps, Mila and her attorney, Douglas Kuthy, say her parents’ health got worse.

“We reported to her that my parents had been falling, Ms. Andruccioli’s response to my attorney was,  it’s unfortunate but old people fall,” said Mila.

“[Andruccioli] failed to recognize the ward was hospitalized; failed to take care of it, failed to provide anything.  I filed a motion for an evidentiary hearing in regard to that, she resigned in the face of it,” said Kuthy.

That’s when Judge O’Brien appointed a new guardian – yet another Public Administrator – Thomas Brennan Fraser.

For six months, Mila says she’s been asking Fraser for a wheelchair ramp so her parents can leave their house.

“He doesn’t respond to anything.  Maybe one out of every ten emails, I’ll get a response, if that,” said Kuthy.

Mila and Doug say when they try to get answers from the judge, they get shut down.  Our cameras were rolling last week while they waited – along with four other attorneys on the case – for 45 minutes.  Instead of taking the bench for the scheduled hearing, Judge O’Brien sent a staffer out to hand out a written opinion.

“It’s highly unusual in my 30 years of practicing law to run into a situation like this.  And frankly, I don’t understand it,” said Kuthy.

“It’s very disrespectful to my parents who are in their 90s. They seek justice, and from what I can see they aren’t getting any,” said Mila.  “This is supposed to be a house of justice, and from what I can see, they aren’t getting any.”

What Fraser and the other professional guardians and conservators are getting is money.

In the Kapp case, court records show, Fraser and Andruccioli both charge $245/hour for attorney fees.

And their various staffers charge anywhere from $35/hour to $165/hour.

In just 10 months, all together they’ve billed for $13,929.34 in costs for the Kapp family.

“Guardianship is one of the easiest weapons to use to financially exploit the vulnerable,” said Americans Against Abusive Probate Guardianship Director Rick Black.  Black calls Oakland County a hot spot for probate problems, and says the guardians who are also Public Administrators have an unfair advantage.

“Their capability in the court room is pretty much carte blanche, both in terms of the protections that they get from the judge, but also the latitude they get within the system as an attorney,” said Black.

7 Investigator Heather Catallo caught up with the Kapp’s guardian after court.

Catallo: “The judge consistently refers to you on the record as a public administrator, so –

Fraser: “By habit – I have a lot of cases.”

Catallo: “How many guardianship and conservator cases do you have?”

Fraser: “I don’t know.”

Catallo: “We have several families that are telling us that you bill an awful lot of money but don’t do very much.  What is your response to that?”

Fraser: “And that’s just not true, my bills are my bills.”

“No one can believe this is happening. And for my father, who is a veteran – he protected this country — for him to be treated like this; for my mother who worked her whole life to be treated like this – I think judges need to look at the elderly and our seniors more cautiously instead of trying to protect Public Administrators and any attorney – anybody walking into the court.  You’re here to protect your public,” said Mila.

On October 5, the 7 Investigators contacted Prince Law Firm attorneys Kelli Nearhood and Ryan Bourjaily, who represent Lorrie and Sandy Kapp, to request comment on this investigation.  In an email response, Nearhood said, “we can neither comment regarding pending litigation nor our client’s role in pending litigation.”

At 4:12pm on October 12, Nearhood and Bourjaily filed the motion for an Ex-Parte Order to keep the 7 Investigators from broadcasting this story.  Without contacting WXYZ or Mila Kapusta’s attorney, the Judge issued the Ex-Parte Temporary restraining order preventing the use of the images of the Kapps.

A hearing will be held on Tuesday October 17.

The original guardian in this case, Barb Andruccioli, has not gotten back to us to comment on this.

In Oakland County, there is a criminal investigation taking place right now into the actions of several Public Administrators.

The Attorney General does appoint Public Administrators to handle decedent estates.  Those attorneys are not state employees, and therefore the Attorney General cannot prevent them from doing outside legal work, such as taking guardian and conservator cases.  According to Andrea Bitely, Press Secretary for Attorney General Bill Schuette, “there’s nothing in Michigan’s laws that prohibit them from fulfilling both roles. But the Attorney General is in favor of changing the system, and all options are on the table.  The old [Public Administrator] laws that are currently in place need to continue to be examined.  We’re continuing to work with the legislature to reform the process.”

If you have a story for Heather, please email her at hcatallo@wxyz.comor call 248-827-4473.

http://www.kob.com/new-mexico-news/sierra-county-probate-judge-pam-smith-resignation-possible-criminal-charges/4633658/

According to documents from the Judicial Standards Commission, Sierra County Probate Judge Pam Smith will never be a judge in New Mexico again.

Documents show she’s accused of using her position to allow her and her husband to take possession of a dead man’s estate. The documents claim the Smiths then closed the man’s bank accounts and transferred around $280,000 into their own accounts.

New Mexico State Police are investigating the accusations.

1. READ THE RULES.  Download the set of rules for appeals in your jurisdiction and court system.  Read all the rules.  I’d tell you to get an attorney but that would be a joke and an insult.  In Chicago, most attorneys charge $10k to $15k or more for a simple appeal and then many do just a lick and a promise at the last minute.  One attorney I know tells the client they are not allowed to review or change anything before submission.  He is sooooo full of it.  Bar complaint for him.  Of course he did a crappy job on this appellate brief.  Knew it.  In any case, 95% of the US public cannot afford $10k for an appeal.  So you’re stuck with me and this website and a DIY brief.  It’s completely interesting that 95% of Americans cannot afford to access their own Court Appellate system, but it seems no one care and there is no hue and cry to get reasonably priced attorneys to assure justice in the US.
2. take all the court orders that you don’t like (often it’s the last judgment against you, but in probate there can be a lot of them–appointment of a guardian without service of process, trumped up and churned attorneys fees, fake sales of buildings were the “system” ruined them for a highly discounted sale to friends, a psychopath being named guardian, etc) and attach them to the Notice of Appeal to show specifically what orders you want to appeal.
3. Find the Notice of Appeal form on the court’s website. Fill it out within the time allowed (generally 30 days, but some states are 21, so be careful).
4. Attach the orders you don’t like to the Notice of Appeal and generally file in the trial court.  If you file in the wrong court it should not be fatal and the court should just transfer it back to the right court, but you should not lose jurisdiction.
5. Fill out the form if one is available, if not, write a letter to the Clerk of Court directing her to prepare the Record on Appeal which is a copy of all the pleadings in the court’s file which she will then consecutively page number, certify the record and return to you. Illinois is now all  efile, so this job is easier and quicker for her and for you.  You then file it with the Appellate court after you are done making a copy for yourself.
6. Once the Record on Appeal is done, you have 35 days to write your opening brief and submit it.  In general, it’s easy to get extensions of time to file the ROA and your Opening Brief, so take your time, be careful and be respectful of the miscreants involved in the case.  Don’t call them names.  Cite the facts and case law so the court can chew them out, not you.
7. 35 days after you submit and serve your opening brief, the other side has 30 days to respond, then you have 14 days to file a reply brief.  A reply brief is only for new issues, so in general, it’s a lot shorter.  You should put on the cover of all your pleadings ORAL ARGUMENT REQUESTED.  If you do get selected for oral argument,  you might want to hire an attorney for that.  But don’t worry, 90% of all cases are decided on the written pleadings so be sure to do a good job explaining everything
8. Write me if you have further questions and I will publish a general answer on my blog.  I can no longer given individual legal information because the ARDC is all over me for publishing this blog and telling the unvarnished truth about the (monkey) business in the legal profession and churning bills and lawyers and courts doing some pretty crappy work.  In South Carolina they have a two step process where they have a set of short initial briefs which only cite the issues on appeal, then after that full briefs are due, so read the rules for your state/jurisdiction carefully.

Since for sure in the US  all the authorities ignore human and civil rights violations in abusive guardianships.

see below:

Periférico Sur Poniente #5, Fracc, El Carmen, San Cristóbal de las Casas, Chiapas. C.P 29260
Tels: (+52) 961 1157443
Cdh.kuuntik@gmail.com
http://www.kuuntik.org
For Immediate Release
October 10, 2017
A human rights organization has filed a request for precautionary measures with the Inter-American Commission on Human Rights, asking for protective measures for an elderly man in California, who is under a court authorized guardianship.
This request, the first ever of its kind, was filed this week by Ku’untik Human Rights Center, which is located in Chiapas, Mexico. The principals of the organization are Diego Cadenas Gordillo, an experienced human rights lawyer and his wife, human rights professor Karen Marie Ferroggiaro, who was born in California.
The request states that the elderly man, Leon Bridges, is in grave danger as he has been placed into the care of a grandson who has already misappropriated over $80,000 of the elderly man’s money. The hearing in which the guardianship was initiated was not attended by Leon Bridges. However, during the hearing Bridges’ attorney, Steven Grossmann, who was appointed by the court, stated that he believed that Mr. Bridges was suffering from Stockholm Syndrome. Stockholm Syndrome is a psychological disorder in which an individual, held in a hostage- type situation, begins to accommodate the needs and desires of his keeper.
The request provides documentation that the judge, David Cowan of Los Angeles Superior Court, was fully aware of the financial abuse by the grandson and appointed him as guardian anyway.
Periférico Sur Poniente #5, Fracc, El Carmen, San Cristóbal de las Casas, Chiapas. C.P 29260
Tels: (+52) 961 1157443
Cdh.kuuntik@gmail.com
http://www.kuuntik.org
The request provides other supporting documents, including Government Accountability Office Reports as well as a report filed with the UN Convention on Torture earlier this year, which provide context and support to concerns that guardians are regularly misappropriating the finances of those they are pledged to protect, and also in many cases abusing their wards physically and medically, often resulting in death.
The request further states that Leon Bridges was taken against his will by the grandson and moved from Arizona to California, and that Mr. Bridges’ adult children have been refused the information as to his location.
This is the first time that a human rights petition has been filed in an international venue on behalf of an individual who is under a guardianship. Karen Ferroggiaro, speaking for Ku’untik, states that her organization is planning a mega-project concerning guardianship abuse and is soliciting reports from other adult guardianship victims in the US, in order to construct a petition with the IACHR asking that the Commission step in and stop the abuses of the elderly and disabled under guardianship.
“The legal system in the US provides no redress for these cases,” stated Ferroggiaro. “There is no where for these victims to go to get help.”
For further information, please contact the Human Rights Center at cdh.kuuntik@gmail.com.

Apparently Salvation Army will track down missing persons, even if they are in hospitals or psych wards.  Good news.  Keep this info handy and know that Andy Ostrowski video graphed his false psych hold capture and his FB friends recorded it and sent it out soon after AO’s computer was shut down and confiscated by the police–the likely true reason for the psych hold, to scam the disk.

The computer is back, but I’m sure it was breached.  AO also complains a lot of stuff is missing from his apartment.

Probably the safest course of action is for everyone to team up with Life 360, an app which tracks your every movement of your cell phone, providing it is on and charged and Life 360 is running.  Check it out and buddy up with another activist or court corruption victim so if you go missing suddenly, you can be tracked to within 3′.

We will create a furror and come and get you.  Have some peace of mind.  We are all in this together.

And speaking of Apps, RECORD EVERYTHING.  I don’t care if someone says it’s illegal.  We are generally all investigating a string of felonies, any state employee can be legally recorded at anytime in their official duties, and to deny recording should be considered evidence tampering and obstruction of justice.

In the Google App store, look for Tiny Scanner to take pictures of documents when the court clerk or some other idiot says “you can’t copy these.”  Or a public defender or states attorney, or perhaps someone wants you to sign a contract but never gives you a copy of what you signed.  Ledgerdermain is found everywhere is law.  Don’t let it bite you in the butt.  You also don’t want to take pictures of computer screens when you can use your cell phone as a scanner for files.  Tiny Scanner, for $5 will also uploa your files in to Gdrive, Outlook, etc. so they can be stored neatly and efficiently.  Highly recommended.  Works 99% good as a scanner.

Good luck on all your investigations and let me know if anyone finds a private investigator that can pull all of those “looks like money laundering to me”  suspicious property records of Banksters, Judges and lawyers in corrupt cases.

That looks like obstruction of justice to me.

thanks everyone

joanne

Most likely in the weeks to come, lawyer activist Andy Ostrowski who was detained for about 10 days on a false 302 Penn. Psych Hold will provide us with more and more information on how the wealthy and clouted (and corrupt) were able to do this.

Pennsylvania powerbrokers abuse legal system to lock up political opponent

By Dave Gahary

A law on the books in the Keystone State intended to apply to individuals with mental illness is now being used for a more sinister purpose: to involuntarily commit political opponents who pose a threat to the established power structure in the commonwealth’s capital. Andrew J. Ostrowski, a former Pennsylvania civil rights attorney, found himself in the sights of the powers-that-be in Harrisburg, and learned the hard way how the 1976 Mental Health Procedures Act (MHPA) is being used to chill criticism of the power prism.

The MHPA “establishes procedures for the treatment of mentally ill persons” and “set[s] forth the Commonwealth’s policy and procedures regarding the provision of mental health services.” Article III of the act defines the requirements and limitations on involuntary emergency examination, treatment, and hospitalization of individuals who present a “clear and present danger to others.”

That key phrase is defined as meaning “within the past 30 days the person has inflicted or attempted to inflict serious bodily harm on another and that there is a reasonable probability that such conduct will be repeated.” Longtime AMERICAN FREE PRESS subscriber and supporter Dorene Shutz tipped off this reporter to Ostrowski’s recent kidnapping.

“He is awake to the corrupt courts,” she explained. On Aug. 26, this reporter spent most of the day with Ostrowski, Ms. Shutz, and other mild-mannered patriots at The Nationalist Times conference, and found all the participants to be scholarly truth-seekers. None who were present that day could ever be considered severely mentally ill and in need of involuntary treatment by even the most incompetent authority, but that says nothing of corrupt authority.

Ostrowski was born and raised in Lancaster, Pa., attended Millersville University, and “was in the first graduating class at Widener University” in Harrisburg. “I trained for several years in the formal legal law firm environment,” he told AFP.

He soon discovered, however, that his chosen profession as an “officer of the court” wasn’t what he thought it might be. “I had been a practicing lawyer until 2010 when I ran into disciplinary issues,” he said, “and, as I distanced myself from the formal practice and started to look at these things, I started to see that there really was no basis for the licensing of the practice of law. The licensing of the practice of law really is an impediment to everybody’s access to justice, because your attorney is not free to advocate without risking his or her own property.”

On Aug. 23, Ostrowski filed a motion, attacking what he saw as a corrupt system. “I filed what is called a motion for declaratory relief,” he explained, “which is a vehicle that gives you access to have declarations made that certain things are constitutional, not constitutional, lawful, and unlawful. And I did it to challenge the basis of the attorney law license. This . . . is a very significant motion that really would upset the entire judicial structure in this country.”

Sitting at his desk on Sept. 19, Ostrowski found out how significant it really was. “I posted a notice on Facebook and sent out emails notifying people I was going on Facebook Live and, within 15 minutes of that, the police were at my door.”

Facebook Live allows a user to broadcast live video streams, requiring nothing more than a computer with a video camera and a Facebook account.

“I looked out the front window,” he said, “and there was a cop climbing over my railing to come around back, so I went around to the back door and locked it, and I went on Facebook Live. And then somehow, they got a key and they came in with gloves on and with their tasers pulled, three of them, a female and two males.”

The webcam captured the interaction between Ostrowski and the police, who entered his home without his permission. In the video, Ostrowski can be seen asking the officers to show him their warrant. Viewers see an officer telling him they have one but then forcingOstrowski from his desk before the video ends.

“They did not have a proper warrant; they didn’t have any paperwork,” Ostrowski said. “I had to kind of—as passively as I could—resist them dragging me into an ambulance and throwing me in without seeing some paperwork.” The short trip from his house to the ambulance was not without injury.

“I had bruises and a cut on my wrist from the handcuffs,” he said. AFP asked what happened next. “I was taken in to the local emergency room where they process you,” he explained, “and then they sent me to [Brooke Glen Behavioral Hospital] down in the Philadelphia suburbs. That was a horrific experience. It was clear that the agenda was, as expressed to me by the doctor, to get me on some kind of pharmaceuticals, and/or, if I refused or resisted, to have me placed long-term, and do it involuntarily. He specifically advocated for that in the hearing on Sept. 22.”

They held him there for seven days, two days longer than Section 302 of the MHPA ostensibly allows. Eventually a judge signed an order denying any commitment petition.

“They basically said I shouldn’t have been there,” explained Ostrowski. AFP asked if he had any recourse, as the judge’s ruling can’t erase the fact that he had been kept there against his will for all that time. “Of course, yes,” Ostrowski said. “This is a gross violation of all my fundamental civil rights. There’s not one that you can discount from it, [except] maybe cruel and unusual punishment.” Alarmingly, this wasn’t the first time they came for Ostrowski, “all directly related,” he believes, “to my advocacy efforts.”

“This is the third time this year,” he explained. Ostrowski contends that the abuse of this mental health law to truncate people’s due process rights is a clear problem.

“This is why AMERICAN FREE PRESS exists,” he said. “This is why The Nationalist Timesexists. This is why you guys do what you do, because this stuff happens to real folks.”

These are excerpts from a mortgagor to his advisor questioning the fact that US Bank i now filing foreclosure actions in the name of a “Trustee” that has ownership of certain “US Backed Securities”.

See the original post by Neil Garfield at https://livinglies.wordpress.com/2017/10/09/the-implied-trust-and-discovery/#comment-483281

Was that nonsense even recorded against title?  I bet not.

Look at the wording very carefully. It is their Achilles heel:

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, FOR RESIDENTIAL ASSET SECURITIES CORPORATION, HOME EQUITY MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2005-EMX4

Do you see any trust named?

Here is the wording I suggested to my client, subject to checking with local counsel:

Attorneys for the putative plaintiff have filed an action for unlawful detainer against this defendant. The action is brought in the name of an implied trust, for which US Bank is designated as trustee. An implied trust cannot be Plaintiff or Petitioner or party to any legal action. Besides lacking legal standing it lacks legal existence. And without an existing trust, the mere naming of oneself as trustee does not create or refer to a trust unless a trust ac tually exists.

The attorneys referenced the action as U.S. Bank versus Edstrom. But U.S. Bank is obviously not a party to this action except as an agent, trustee or representative of the implied trust.

Defendant has raised defenses that include but are not limited to whether the implied trust actually exists, whether U.S. Bank has any legal authority in a representative, agency, or trustee capacity and further whether the self-proclaimed servicer for the implied trust has any legal authority to administer the putative subject loan.

Based upon circiumstantial evidence and disclaimers published by all the parties who seem to think they have an interest in foreclosing the subject property, the answer to all of the questions is “No.” This accounts for the obfuscation in discovery which would reveal the truth quite easily and simply.

Accordingly, defendant served discovery upon the attorneys for the putative plaintiff. Simple logic dictates that if the trust does not in fact exist or if the trust exists but never acquired the putative subject loan, then the plaintiff does not exist, (or it has no legal standing), the attorneys do not have a client, U.S. Bank has not stated a basis for being named in this action, and the self-proclaimed servicer is deriving its apparent authority from a nonexistent trust.

Or the claims of owernship or authority arise from a party or trust that never entered into any transaction under which such a party or trust purchased the putative subject loan nor any transaction in which such a party or trust purchased the rights to enforce the debt, note, or deed of trust.

Despite numerous attempts by the defendant to obtain compliance from the putative plaintiff, defendant has been unable to obtain any actual answers or verification of even the evasive answers.

The verification submitted by counsel for the putative plaintiff is signed by an employee of Ocwen loan servicing. It states that Ocwen is the attorney-in-fact for the putative plaintiff. Despite numerous attempts by defendant, the attorneys for the putative plaintiff have been unable or unwilling to reference or provide an actual document in which Ocwen is appointed attorney in fact, much less the scope of authority of the so-called attorney in fact.

The alleged “verification” does not state anything with respect to the truth or accuracy of the response to defendant’s request for production of documents, set one. Instead, it is signed by an individual who claims to be a senior loan analyst for Ocwen, and evades the language of verification. The document plainly states that the verification is based upon information and belief and not personal knowledge. It also fails to state that the response is coming from the records of the putative plaintiff.

The response to defendant’s special interrogatories, set one contains the same defects. The same is true to the response to defendants form interrogatories – general, set one.

Based upon the apparent unwillingness of the alleged attorneys for the putative plaintiff to comply with the requirements for a response to discovery, defendant seeks an order from the court compelling appropriate responses to defendants discovery together with appropriate verification in accordance with the Rules of Civil Procedure.

Defendant requires an actual answer from an actual party in order to prove the lack of standing and lack of authority to represent by the attorneys, the named plaintiff, the alleged trustee, the alleged servicer and the absence of any actual power of attorney or even access to records of the named plaintiff, if it even exists. Defendant can think of no better party to  give the asnwers than the Plaintiff if it exists, and no worse party than Ocwen or any other servicer whose compensation is rooted in foreclosure not administration of loans.

The many trevails of Ocwen as set forth in published cases and news reports, the settlements admitting or indicating that they failed to perform basic accounting functions and misled homeowners into foreclosure forms of cloud of incredulity in which if Ocwen seeks to assert itself in some way it must proove its assertions without any legal presumptions which are normally used in lieu of facts that are widely known to be accurate and uncontested or admitted.

Based upon 10 years of work as a forensic analyst and investigation into dozens of other cases in which these parties have asserted nonexistent rights to purported loans, defendant believes that the trust does not exist, that no transaction ever occurred in which the name of the trust was used to purchase the alleged subject loan, that US Bank has no authority as trustee or agent for anyone who does own the alleged subject loan, and that Ocwen possesses no right, title or interest in the subject loan nor any right of administration of the loan on behalf of of any party meeting the definition of an actual beneficiary under a deed of trust.

The opposing group of parties are the only parties that have access to the actual evidence that would prove defendants defenses. There is no way to obtain such evidence without getting compliance from those parties.

Defendant hereby challenges the authority of opposing counsel in that it appears to be claiming to represent a plaintiff that does not exist.

Comment from Joanne;

It seems to me, once the Bank is served with discovery, it has to show its standing as a real Plaintiff/Trustee of an existing Trust agreement backed by the securities it says it is backed by and the Trustee would also have to be granted powers to sue and be sued regarding mortgages backed by the securities.

You’re right, though, the whole set up seems fishy.

UPDATE:  Comment received by email:

HI, Ms. Denison;

I have a client who is a Targeted Individual who has been false imprisoned.

I would appreciate volunteers that can talk to him daily and hold his hand while he is falsely imprisoned.

You will need to sign up with the nation’s inmate phone system (www.connectnetwork.co) and put $25 down minimum to spend some $4 on the transaction fee plus 25 cents per minute.

He needs someone to hold his hand, tell him you care and tell him it will be alright.

Contact me and give me your phone number and I will pass it on.  Set up an account, fund it with $25 min  (sorry, I have nothing to do with it, this is the cost of helping those incarcerated) and  I will pass along your phone number.  He will then call you and you can offer your support.

Many people are falsely imprisoned. This person is under a false guardianship (never served).  This is your chance to help.

At any time, any one of us can be falsely imprisoned and it takes a gargantuan effort to straighten out that mess, and it’s far worse if you are poor or have been targeted for harassment by those with wealth and/or clout.

In this case, it appears his “guardians” have been stealing his social security benefits for 18 years and likely military disabled dependent benefits and he suspects there is a trust worth millions that was also pinched from him by “guardians.”

We all well know the story.  Soon as AD started getting social security benefits, copies of his gship file (and btw, there are NO annual reports on anything filed with the court for 18 years, no accounting, report of his health or welfare, etc.), but AD was harassed for years with the guardians interfering with any job he got, and any relationship he became involved in.  One troubling point is it appears at one point he married and divorced.  I’m still trying to figure out how his divorce lawyer charged him thousands when he was under a guardianship.  If you are under a gship, you can’t get married and if anyone wants child support they have to motion the gship court for it.   What a mess.
Activist/lawyer Andy Ostrowski was recently put in a false psych hold and it took 10 days for him to be released–even with over 20k views of his false arrest streaming live on FaceBook (many friends watched and then reposted soon as police told him to shut down his laptop, but his laptop is still missing and has not been recovered, despite the fact his house was locked up on the way out the door)

We all have to stick together in all of this.

Joanne

http://www.thevegasvoice.net/nevada-legislature-happenings/just-in-judge-steel-today-freed-two-more-victims-from-for-hire-guardian-april-parks-financial-exploitation-and-ab

For-hire “guardian” April Parks

By: Steve Miller LAS VEGAS – After an hour long hearing in Clark County Family Court, newly appointed Guardianship Judge Cynthia Diane Steel today ruled that the court-ordered guardianship of Rudy and Rennie North be terminated immediately. “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed its the only thing that ever has.” Dr. Margaret Mead

The North’s guardianship was put in place by then-Guardianship Hearing Master Jon Norheim at a time when his court rulings were under scrutiny based on well founded accusations that he was doing favors for certain local for-hire private guardians by assigning guardianships based on the degree of wealth of the prospective “wards,” instead of basing his decision on the prospective ward’s actual need for help by the family court. In all reported instances of such court appointments, family members loudly protested, but to no avail until the issue became fodder for stories by the Las Vegas Review-Journal, Vegas Voice, and KTNV TV Contact 13 producer Kean Bauman and reporter Darcy Spears.

Newly appointed Guardianship Judge Cynthia Dianne Steel

Disgraced Family Court Judge Charles Hoskin and his appointed Hearing Master Jon Norheim–but why aren’t these guys in prison?

This is Judge Steel’s third termination of an exploitative guardianship ordered by Norheim under the direction of his boss Chief Family Court Judge Charles Hoskin.

Judge Hoskin was recently re-elected to another six year term, and Norheim, who is not an elected judge and works at Hoskin’s pleasure, have been banned from hearing any more guardianship cases.  but again, why arent’ these guys in prison?  they ruined lives,tormented families, murdered or contributed significantly to the hastening of death.

Per a May 2015 ruling by Clark County Eighth Judicial District Court Chief Judge David Barker, both Hoskin and Norheim are no longer allowed to hear guardianship cases based on numerous complaints filed with the Nevada Commission on Judicial Discipline, and the Clark County Commission. 

Judge Steel who has heard all guardianship cases since June 1, is expected to soon begin review of dozens of complaints lodged against veteran for-hire guardian Jared E. Shafer, who is well known as the mentor of most Las Vegas’ based private guardians, many of whom are also suspected of exploiting their “wards.”

The North’s heart rendering story was featured on several recent KTNV TV Contact 13 segments. <span “font-size:10.0pt;font-family:”arial”,”sans-serif”;=”” color:black”=””>

Click on above image to view full KTNV TV News video 

Since Contact 13’s exclusive airing of Rudy and Rennie North’s story, along with several others telling of local guardianship abuse sanctioned by Hoskin and Norheim, Channel 13 News has catapulted into the number one position in key time slots according to Nielsen’s May TV news ratings.

Many believe the station’s success is based on Kean and Spears’ exclusive stories about the previously out of control guardianship racket in Southern Nevada, and the remedies now being put in place to stop the family court sanctioned financial exploitation by for-hire guardians of too many of our city’s senior citizens, and disabled persons (click HERE to view the shocking story of an exploited disabled man in his own words).