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Memorandum of law from Richard Cornforth Beating Up on Debt Collectors
Memorandums of law
Memorandum of law in support of the point of law that
party alleging to be creditor must prove standing
Discover Bank has failed or refused to produce the actual note which Discover Bank alleges Jalon M Johnson owes. Where the complaining party cannot prove the existence of the note, then there is no note. To recover on a promissory note, the plaintiff must prove: (1) the existence of the note in question; (2) that the party sued signed the note; (3) that the plaintiff is the owner or holder of the note; and (4) that a certain balance is due and owing on the note. See In Re: SMS Financial LLc. V. Abco Homes, Inc. No.98-50117 February 18, 1999 (5th Circuit Court of Appeals.) Volume 29 of the New Jersey Series, Chapter 10 Section 123, page 566, emphatically states, “…; and no part payment should be made on the bond or note unless the person to whom payment is made is able to produce the bond or note and the part payments are endorsed thereon. It would seem that the mortgagor would normally have a Common law right to demand production or surrender of the bond or note and mortgage, as the case may be. See Restatement, Contracts S 170(3), (4) (1932); C.J.S. Mortgages S 469 in Carnegie Bank v Shalleck 256 N.J. Super 23 (App. Div 1992), the Appellate Division held, “When the underlying mortgage is evidenced by an instrument meeting the criteria for negotiability set forth in N.J.S. 12A:3-104, the holder in due course pursuant to N.J.S. 12A:3-302” Since no one is able to produce the “instrument” there is no competent evidence before the Court that any party is the holder of the alleged note or true holder in due course. New Jersey Common law dictates that the plaintiff prove the existence of the alleged note in question, prove that the party sued signed the alleged note, prove that the plaintiff is the owner and holder of the alleged note. Federal Circuit Courts have ruled that the only way to prove the perfection of any security is by actual possession of the security. See Matter of Staff Mortg. & Inv. Corp., 550 F.2d 1228 (9th Cir 1977), “Under the Uniform Commercial Code, the only notice sufficient to inform all interested parties that a security interest in instrument has been perfected is actual possession by the secured party, his agent or bailee.” Bankruptcy Courts have followed the Uniform Commercial Code. In Re Investors & Lenders, Ltd. 165 B.R. 389 (Bkrtcy.D.N.J.1994), “Under the New Jersey Uniform Commercial Code (NJUCC), promissory note is “instrument,” security interest in which must be perfected by possession …”
Memorandum of law in support of the point of law that to prove
damages in foreclosure of a debt, party must enter the account or general ledger
statement into the record through a competent fact witness
To prove up claim of damages, foreclosing party must enter evidence incorporating records such as general ledger and accounting of an alleged unpaid promissory note, the person responsible for preparing
and maintaining the account general ledger must provide a complete accounting which must be sworn to and dated by the person who maintained the ledger. See Pacific Concrete F.C.U. V. Kauanoe, 62 Haw. 334, 614 P.2d 936 (1980), GE Capitol Hawaii, Inc. v. Yonekaka 25 P.3d 807, 96 Hawaii 32, (Hawaii App 2001), Fooks v. Norwich Housing Authority 28 Conn. L. Rptr. 371, (Conn. Super.2000), and Town of Brookfield v. Candlewood Shores Estates, Inc. 513 A.2d 1218, 201 Conn.1 (1986). See also Solon v. Godbole, 163 I11. App.3d 845, 114I1
Memorandum of law in support of the point of law that when jurisdiction is challenged,
the party claiming that the court has jurisdiction has the legal burden to prove that jurisdiction has the legal burden to prove that jurisdiction was conferred upon the court through the proper procedure. Otherwise, the court is without jurisdiction.
Whenever a party denies that the court has subject-matter jurisdiction, it becomes the duty and the burden of the party claiming that the court has subject matter jurisdiction to provide evidence from the record of the case that the court holds subject-matter jurisdiction. Bindell v City of Harvey, 212 I11.App.3d 1042, 571 N.E.2d 1017 (1st Dist. 1991)(“the burden of proving jurisdiction rests upon the party asserting it.”). Until the plaintiff submits uncontroversial evidence of subject-matter jurisdiction to the court that the court has subject-matter jurisdiction, the court is proceeding without subject-matter jurisdiction. Loos v American Energy Savers, Inc., 168 I11.App.3d 558, 522 N.E.2d 841(1988)(“Where jurisdiction is contested, the burden of established it rests upon the plaintiff.”) The law places the duty and burden of subject-matter jurisdiction upon the plaintiff. Should the court attempt to place the burden upon the defendant, the court has acted against the law, violates the defendant’s due process rights, and the judge has immediately lost subject-matter jurisdiction.
Mandatory Judicial Notice
Discover Bank is a subset of the debt collection racket, a wide-spread, far reaching scam of artists such as ERIC M BERMAN, P.C. How the scam works: In a back room of the Chicago Board of Trade, worthless bundles of commercial paper in the form of copies of charged of debt are sold at auction. The typical face value of the bundles often amounts to tens of millions of dollars. The mortgagees are often not harmed because they often have hypothecated the loan and have risked nothing. Actors up line from such artists as ERIC M BERMAN, P.C. then break apart the bundles and resell the worthless commercial paper in clusters based on the original mortgage and geographic location of the individual copies. Artists such as ERIC M BERMAN, P.C. are the actual holders in due coarse although typically in the scam, these artists invest as little as .75 cents on the hundred face for the worthless commercial paper, then they allege they are a third party debt collector attempting to collect for the original maker of the loan. This racket is particularly heinous in the case of credit card contracts, which as a continuing series of offers to contract, are non-transferable. The scam is complete when artists such as ERIC M BERMAN, P.C., with the cooperation of a local judge, defraud parties such as Jalon M Johnson. This scam is wide-spread, far reaching and the main racket of the private business organizations to which artists such as ERIC M BERMAN, P.C. belong. For other examples of this racket, see Discover Bank versus Angie G. Walker and Elser C. Walker, Civil Action File number 03-CV-2295, Muscogee County, Georgia, Discover Bank versus Larry Pasket, case number 03-SC-640, Clark County, Wisconsin, and Discover Bank versus Roger Braker and Sharon A. Braker, case number CS-2003-2248, Oklahoma County, Oklahoma, Bancorp V. Carney, Los Angeles County, California, case number EC 032786, First USA Bank v. Borum, Oklahoma County, Oklahoma Case number CS 99-332-25, Bank of America v. Bascom, County of Monroe, New York, index number 4522/00, Discounts R. US (a major syndicate player in the holder in due course fraud racket) v. Hausler, General Sessions Court, Smith County, Tennessee, case number 8758-24-179, Banco Popular v. Plosnich, DuPage County, Illinois, case number 98 CH 0913, Citicorp Mortgage v. Tecchio, Monmouth County, New Jersey, case number F-12473-97, Direct Merchants Credit Card Bank v. Sommers, Caddo County, Oklahoma case number CS-2002 116, Creditors Recovery Corporation v. Choisnard, Tulsa County, Oklahoma case number CS 02-7225, First Collection Services v. Elowl, General Court of Justice, New Hanover County, North Carolina case number 02 SP 338 & 02 SP 598, CitiMortgage v. Lance, Court of Common Pleas, County of Orangeburg, South Carolina, docket number 00-CP-38-1033, UMB USA Versus David Majectic, Combined Court Fremont County, Colorado, case number 2003C 000890, Capitol One Bank versus Barbara Davis and Phil C. Davis, Highlands County Michigan, Case number 03-754-SPS, and Conseco Finance Corporation v. Ray, Court of Common Pleas, County of Columbia, South Carolina, docket number 00-CP-02-397.
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Do or do not; there is no such thing as try.
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