jurisdiction and motion to vacate?

[free*to*be*me]

This is my question, What would be the steps to file a motion to vacate final judgment in a county court foreclosure action but not give them jurisdiction? Is it at all possible?

Am I right in thinking a motion filed to the court gives jurisdiction?

[Notorial dissent]

First, if you’re in court, they have jurisdiction. Second, you cannot file anything in a court without coming under that court’s jurisdiction. Third, if you are dealing with a foreclosure action, short of petitioning the court in question to reconsider, which comes under the heading of not likely to happen, you have to go to the next superior court for any other action, and in a foreclosure case unless you actually have something solid you are wasting your time.

[Lawdog]

That's not entirely true. You can, prior to or contemporaneously with your answer (if you're the defendant), file a motion to dismiss for lack of jurisdiction (personal, subject matter, or both). However, your chances of prevailing are slim indeed. If you have been properly served but the court lacks subject matter jurisdiction, it will probably just order the matter transferred to the proper court.

[BOBT12]

Originally Posted by Lawdog

That's not entirely true. You can, prior to or contemporaneously with your answer (if you're the defendant), file a motion to dismiss for lack of jurisdiction (personal, subject matter, or both). However, your chances of prevailing are slim indeed. If you have been properly served but the court lacks subject matter jurisdiction, it will probably just order the matter transferred to the proper court.

This appears to be a pretty good analysis. Thanks, LD.

[moishanb]

Originally Posted by Lawdog

That's not entirely true. You can, prior to or contemporaneously with your answer (if you're the defendant), file a motion to dismiss for lack of jurisdiction (personal, subject matter, or both). However, your chances of prevailing are slim indeed. If you have been properly served but the court lacks subject matter jurisdiction, it will probably just order the matter transferred to the proper court.

One slight problem with this analysis............it doens't matter what court the cause is transferred to, if the cause lacks subject matter jurisdiction, no court can hear the cause, and subject matter jurisdiction can never be waived, granted by post-cause acts, and can be lost even if subject matter was properly established prior to the court accepting the cause.

This is one of the most mis-understood topics that attorneys and judges(oh, I repeat myself) advise on, or, it is one of the most understood topics that attorneys and judges mislead people about.

See the attachment with court cases that talk about reasons for not having subject matter jurisdiction, and why subject matter jursidiction was lost.

This should take some time for the interested to study, and don't be overly concerned about the case-law being from another 'state' than you are located. Equality under the law is paramount.

This stuff is for beginners, novices, and advanced, students of the law, but not for attwisters(my term).

[David Merrill]

Lawdog and Notorial dissent are both on dog food.

The foreclosure action, even in "county court" happens in admiralty. The nature of central banking and the Fed banks (mortgage companies) is international. That causes diversity and therefore a man or woman on the land is treated foreign to the mortgage company.

Likely the best way to make my point is to show this again. The hearing was set for January 22nd and so the homeowner allowed just enough time for the subpoena duces tecum to perfect, serving it on the 16th.

When he showed up for the foreclosure hearing on the 22nd he learned that he had missed the hearing and defaulted - because the foreclosure hearing had secretly been moved to the 17th!


But most importantly note that the Reversal is marked as to the ADMIRALTY MARITIME JURISDICTION.



Regards,

David Merrill.

[farmer_giles_of_ham]

Originally Posted by moishanb

One slight problem with this analysis............it doens't matter what court the cause is transferred to, if the cause lacks subject matter jurisdiction, no court can hear the cause, and subject matter jurisdiction can never be waived, granted by post-cause acts, and can be lost even if subject matter was properly established prior to the court accepting the cause.

This is one of the most mis-understood topics that attorneys and judges(oh, I repeat myself) advise on, or, it is one of the most understood topics that attorneys and judges mislead people about.

hit that nail right on the head.

[BOBT12]

Originally Posted by moishanb

One slight problem with this analysis............it doens't matter what court the cause is transferred to, if the cause lacks subject matter jurisdiction, no court can hear the cause, and subject matter jurisdiction can never be waived, granted by post-cause acts, and can be lost even if subject matter was properly established prior to the court accepting the cause.

This is one of the most mis-understood topics that attorneys and judges(oh, I repeat myself) advise on, or, it is one of the most understood topics that attorneys and judges mislead people about.

See the attachment with court cases that talk about reasons for not having subject matter jurisdiction, and why subject matter jursidiction was lost.

This should take some time for the interested to study, and don't be overly concerned about the case-law being from another 'state' than you are located. Equality under the law is paramount.

This stuff is for beginners, novices, and advanced, students of the law, but not for attwisters(my term).

This seem like pretty good general information, thanks.

Until the plaintiff/petitioner submits uncontroverted evidence of subject-matter jurisdiction to the court that the court has subject-matter jurisdiction, the court is proceeding without subject-matter jurisdiction. Should the plaintiff/petitioner not provide uncontroverted evidence of subject-matter jurisdiction, all orders or judgments issued by the judge are void ab initio. A judge should not proceed in any action in which the judge does not have subject-matter jurisdiction, since he/she has no lawful authority to act.

Unfortunately, the foreclosure action is likely based upon a mortgage, which provides subject matter jurisdiction. Of course, if there is some sort of defect with this, such as, someone stole ones ID to obtain the mortgage, there are grounds for appeal. Nevertheless, the Original Poster (OP) did not provide enough information to see if this is what he or she was concerned about.

A mortgage is the pledging of a property to a lender as a security for a mortgage loan. While a mortgage in itself is not a debt, it is evidence of a debt. It is a transfer of an interest in land, from the owner to the mortgage lender, on the condition that this interest will be returned to the owner of the real estate when the terms of the mortgage have been satisfied or performed. In other words, the mortgage is a security for the loan that the lender makes to the borrower.

The term comes from the Old French "dead pledge," apparently meaning that the pledge ends (dies) either when the obligation is fulfilled or the property is taken through foreclosure.[1]

In most jurisdictions mortgages are strongly associated with loans secured on real estate rather than other property (such as ships) and in some jurisdictions only land may be mortgaged. Arranging a mortgage is seen as the standard method by which individuals and businesses can purchase residential and commercial real estate without the need to pay the full value immediately. See mortgage loan for residential mortgage lending, and commercial mortgage for lending against commercial property.

http://en.wikipedia.org/wiki/Mortgage

[Notorial dissent]

Originally Posted by moishanb

One slight problem with this analysis............it doens't matter what court the cause is transferred to, if the cause lacks subject matter jurisdiction, no court can hear the cause, and subject matter jurisdiction can never be waived, granted by post-cause acts, and can be lost even if subject matter was properly established prior to the court accepting the cause.
A cause does not does not have “subject matter jurisdiction”, it may or may not be a matter that can be adjuducated, but “subject matter jurisdiction” applies to the court hearing the matter, and if it does not have jurisdiction, then some other court does. The court looks at the matter and says that is not a matter that this court has jurisdiction over, and then transfers it to the court that does, and the matter is ended. A common example is of a local court where a matter that comes in over $100 is received, by law it cannot here such a case, but the court above it can, and the case is transferred to the superior court. The lower court did not have subject matter jurisdiction, but the superior court did.

This is one of the most mis-understood topics that attorneys and judges(oh, I repeat myself) advise on, or, it is one of the most understood topics that attorneys and judges mislead people about. No it is misunderstood by people who actually refuse to read the law court rules and just make wild assed assumptions based on nothing but wishful thinking.

***************

[moishanb]

Quote from Notorial Dissent: "A cause does not does not have “subject matter jurisdiction”, it may or may not be a matter that can be adjuducated, but “subject matter jurisdiction” applies to the court hearing the matter, and if it does not have jurisdiction, then some other court does. The court looks at the matter and says that is not a matter that this court has jurisdiction over, and then transfers it to the court that does, and the matter is ended. A common example is of a local court where a matter that comes in over $100 is received, by law it cannot here such a case, but the court above it can, and the case is transferred to the superior court. The lower court did not have subject matter jurisdiction, but the superior court did."

Yes, I appreciate you proving my point. It really makes it easier that way. I specifically used 'cause' instead of 'case' because a 'cause' does not necessarily have subject matter jurisidiction, but a 'case' must have subject matter jurisdiction.

Your common example is just that, a common one. We on this forum, for the most part, are not common, and are not looking for common examples. The amount of a controversy is one of many reasons that a court cannot hear a 'cause'. What about the other reasons? I have supplied court decisions in my attachments from a post above.

You, Notorial Dissent, have provided none, and given opinion, and are also bold enouigh to state we refuse to read 'the law court rules'(not sure if you are combining rules and the law, or are stating that the rules are the law). Following rules are fine, but, rules come from law, not law from rules, so don't confuse this member. If you must learn, learn the law first, because it trumps rules/procedure. I know this is contrary to what attorneys are taught, but I do agree that the laws are perfect, it is men that are imperfect in their interpretation.

Once a man is more concerned with rules and policy than law, then the man is lawless.