MOTION FOR PAYMENT OF RENT PENDING WRIT OF CERTIORARI.”

[ntellect]

SUMMARY



I'm still hanging in and fighting but I don't know what my next move is as of yet. Here's where I am thus far: After my loss at the Dispossessory Hearing Case when the judge signed the order/judgment for Writ Possession for the mortgage company I filed a Motion To Vacate Foreclosure Order/Judgment and a Writ of Certiorari both in Superior Court. The Writ is to petition the Superior Court to look at the state civil court (dispossessory warrant hearing) case and it's judgment. Which should force the issue of the court to consider the evidence that I submitted and force the mortgage company to submit evidence of the alleged debt. Of course the lawyers for the mortgage company on 5/27 filed a "First Amendment To Answer and Defenses Defendant's Answer and Defenses To Plaintiff's Writ of Certiorari", "Defendant's Response In Opposition To Plaintiff's Motion To Vacate Foreclosure Judgment/Order" and "Defendant's Motion To Dismiss Writ Of Certiorari". They have all kind of case precedents in their filings and I can't make heads or tails of it. So I guess I'm just sitting, waiting to see if the judge will now schedule a hearing on my motions or dismiss them. Any advise? Still fighting



UPDATE



I have been waiting to get a hearing date in Superior Court for the Motion To Vacate Foreclosure Order/Judgment and the Writ of Certiorari after the lawyers filed their motions to block it. Yesterday, 6/21, I received a notice in the mail notifying me that I am to appear in court on June 28th. The lawyers for the mortgage company have filed a “MOTION FOR PAYMENT OF RENT PENDING WRIT OF CERTIORARI.” This is a continuous civil action in the state court from the initial DISPOSSESSORY HEARING CASE which the judge gave WRIT POSSESSION to the mortgage company.



The MOTION FOR PAYMENT is requesting that the court order me to pay rent into the registry of this court until the issues have been finally determined on “appeal.” It also requests that if I don’t immediately pay into this registry that I no longer be entitled to possession of the property.



Firstly, if my Superior court case of Motion To Vacate Foreclosure Order/Judgment and the Writ of Certiorari is still pending, how can they force me into court to pay rent.



Secondly, “technically speaking”, a Motion To Vacate Foreclosure Order/Judgment and Writ of Certiorari is not an “appeal” or is it?



Thirdly, since I’m disputing title ownership because my alleged debt to the mortgage company has been legally discharged by way of a Promissory Note and B.O.E, I shouldn’t have to pay rent because I am not a tenant any more which the Security Deed initially made me, unknowingly to me.



Does anyone have any "advise" which might help me in the court room on June 28?



Ntellect

[Jerseee]

Ntellect,



Your post seems detailed but, I could only ascertain this since I do not have first hand knowledge.



1. Are they using the Constitution in this matter? You mentioned the First Amendment--I am confused. If they are using the Constitution in this matter and it is allowed, you better start working on your reply through Constitutional means since they have introduced it. Usually they will tell you that this is not a Constitutional issue.



2. Did you get the CRAs involved? I know it may sound like a weak attempt but, the CRAs are an investigative agency used by creditors, debt collectors, and the public. It is the latter party that does not use them effectively. You see, if the CRAs can't verify the debt--then that is evidence in your favor. Especially if they delete the entry on the credit report. Then the plantiff can't dismiss the evidience since it was them that reported it as valid in the first place.



3. I'm kind of a rogue but this is a strategy that I am thinking of using, if ever in a position that the judge allows copies. Get a copy of a judgement that that judge had signed. Create a statement, a letter and a bill and photocopy the signature on those docs. Then put a watermark on the docs that says "sample". On the docs put that the judge owes you $XXX,XXX,XXX.XX amount. Then you sign the docs and make copies of the whole package. The reason I say this is because, folks have been getting railroaded by photocopies of alleged debts. If the judge rules on addmission of photocopies then your copies could be evidence as well. This will bring an unwanted fury but, if it is allowed then the judge should see how his decision affects all--even him. (I know this is a bit off-track and radical but, I feel this technique should open their eyes as to what can happen to them).



4. Also, I think if you pay that rent--you admit to the debt and that can be used against you. To me, if you pay that rent--you validate the the order and the debt. It is a sticky situation.



5. DId you get the Richard Cornforth's void judgement series? Its in the downloads section and I think its worth listening to. Especially if the opposing attorney is stating facts! Counsel cannot give testimony. I think this is the most viable option of the five I have presented.



Ntellect,

Good luck and I know GA is palying games with you but, you should still try to do a land patent or something. I still believe that you can take that land out of the public and into the private. Here is case law to help you:



“8-1209. Patents for land.

pp. 8-1209. Patents for land. A PATENT FOR LAND SHALL BE DEEMED AND CONSIDERED A BETTER LEGAL AND PARAMOUNT TITLE IN THE PATENTEE, HIS OR HER LEGATEES, HEIRS OR ASSIGNE, THAN THE OFFICIAL CERTIFICATE OF ANY REGISTER OF A LAND OFFICE OF THE UNITED STATES, OF THE ENTRY OR PURCHASE OF THE SAME LAND.” (emphasis added)

Amended by P.A. 83-707, pp. 1, eff. Sept. 23, 1983.



Title 43 U.S.C. 59, established that duly certified copies of Federal Land Patents shall be evidence in all cases where the originals would be evidence. Section 83 of Title 43, covers the evidentiary effect of Certified Federal Land Patents for all States and all the courts in the United States must take Judicial Notice of the Federal Patents and their evidentiary effect under these Federal Statutes. All judges in all States shall be bound as to the power and validity of the patents.



U.S. v. Debell, (1915 CA8 SD) 227 F. 760



Patent as foundation of Title at Law



Fenn v. Holmes, 21 Howard 481



Immunity from Collateral Attack



Collins v. Bartlett, 44 Cal 371

Webber v. Pere Marguette Boom Co., 62 Mich. 6262, 30 NW 469

Surget v. Doe, 24 Miss 118

Pittsmont Copper Co. v. Vanina, 71 Mont. 44, 227 Pac. 46

Green v. Barker, 47 Neb. 934, 66 NW 1032

Neff v. U.S., 91 CCA 241

Paterson v. Ogden, 74 P. 443, 141 Cal. 43, 99Am. St. Rep. 31



Judicial Opinions of Form of Declaration of Land Patent



Wright v. Roseberry, 121 U.S. 488, 30 L.Ed. 1039 USCT

Scheimer v. Conway, 23 How. 235, 16 L.Ed. 452 (1860) USCT

Summa Corp. v. California ex rel., 104 S.Ct. 1751 (1984) USCT

Fiedler v. Pipes, 107 So. 2d. 409 (1958) Louisiana

Bennett v. Butterworth, 11 How 691



Land Patent as prima facie Conclusive Evidence of Unassailable Legal Title



Gibson v. Chouteau, 80 U.S. 92, 20 L.Ed. 534

State v. Crawford, 13 Ariz. App. 225, 475 P. 2d. 515

Texas, etc. R. R. v. Smith, 159 U.S. 68, 40 L.Ed. 78, 15 S.Ct. 935

Miller v. Grunsky, 66P. 858, 141 Cal. 441, reversed (1903) 75 P. 48



Ejectment against a defendant in possession cannot be maintained in Federal court on an equitable title, gained by entry made with the register and receiver, though the State statutes otherwise provide.

Langdon v. Sherwood, 124 U.S. 83, 84. 8 S.Ct. 431

Carter v. Ruddy, 56 Fed. 544, 15 U.S. App. 129 or 429

Le Beau v. Armitage, 47 Mo. 139

Johnson v. Christian, 128 U.S. 382, 33 L.Ed. 415, 9 S.Ct. 90

Doe v. Aiken, 31 Fed. 393

Steel v. St. Louis Smelting & Refining Co., 106 U.S. 417, 27 L.Ed. 226



Ejectment not maintainable on State Certificate of Purchase



Kircher v. Murray, 60 Fed. 52, 23 U.S. App. 214

affirming S.C. 54 Fed. 626

Harrest v. Kinney, 44 Mich. 460, 7 N.W. 64

Moran v. Moran, 106 Mich. 12, 58 Am. St. Rep. 465, 63 N.W. 990

Headley v. Coffman, 38 Neb. 72, 56 N.W. 702

Clagett v. Kilbourne, 1 Black. 350, 17 L.Ed. 216

Wilson v. Fine, 14 Sawy. 35, 36. 38 Red. 790, 791

Sheffield Furnace Co. v. Witherow, 149 U.S. 579, 37 L.Ed. 856, 13 S.Ct. 939

Abbott v. Union, ect., Ins. Co., 127 Ind. 73, 26 N.E. 154



Estoppel has been sustained as against a municipal corporation (county)



Beadle v. Smyser, 209 U.S. 393, 52 L.Ed. 849

See Title 43, Sections 83 and 43 USC 57-59

Diversity of Citizenship, 28 USC 1331, 1332, 1343

Treaties, 8 Stat. 80, 8 Stat. 200, 8 Stat. 218, 9 Stat. 869, 10 Stat. 1031

Ware v. Hylton, 3 U.S. 199



Lead Case Louisiana Purchase States



Am. Ins. Co. v. Canter, 1 Pet. (26 U.S.) 511



On ultra vires



1st Nat. Bank of Tallapoosa v. Monroe, 69 SE 1123

Norton Grocery Co. v. Peoples Nat’l Bank, 144 SE 501

Federal Intermediate Credit Bank v. L. Herisson, 33 F.2d. 841

Am. Exp. Co. v. Cit. St. Bank, 194 NW 427

Ashley v. Southwestern Bell Telephone Co., 410 F. Supp. 1389

Blackburn v. Portland Gold Mining Co., 175 U.S. 571, 44 L.Ed. 20 S.Ct. 222

Davidson v. Lovett, 446 F. Supp. 1171

Florida Cent. & Pen. R.R. v. Bell, 176 U.S. 321, 44 L.Ed. 486, 20 S.Ct. 399

Hanford v. Davies, 163 U.S. 273, 41 L.Ed. 157, 16 S.Ct. 1051 (1896)

Joy v. St. Louis, 201 U.S. 273, 41 L.Ed. 157, 16 S.Ct. 478 (1906)

Kirklin v. Ellerbe, 225 F. 168

Shulthis v. McDougal, 225 U.S. 561

Nolan v. Cal. Coast. Comm., 177 Call. App. 3d 719, 722 (1986) 55 U.S.L.W. 5145

First English Evan. Luth. Church of Glendale v. Co. of L.A. 55 U.S.L.W. 4781

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

Agins v. City of Tiburon, 24 Cal. 3d. 266

Davis v. Pima County, 590 P. 2d. 459 (1978)

Corrigan v. City of Scottsdale, 720 P. 2d. 513 (1986)

Fred F. French Investing Co., Inc. v. City of New York, 39 N.Y. 2d. 587 (1976)

San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621

U.S. v. Pewee Coal Co., 341 U.S. 114

Moore v. East Cleveland, 431 U.S. 494 (1977)

Loretta v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)

Norwood v. Baker, 172 U.S. 269 (1898)

Candid Ent. Inc., v. Grossmont Union H.S. Dist., 39 Cal. 3d. 878, 890 (1985)

Trent Meredith, Inc. v. City of Oxnard, 114 Cal. Ap. 3d. 317, 325 (1981)

Selby Realty Co. v. City of San Buenaventura, 10 Cal. App. 3d. 110, 128 (1973)

Strumansky v. San Diego Co. Emp. Tetirement Assoc., 11 Cal. 3d. 28, 32 (1974)

Avco Community Dev. Inc. v. South Caost Regional Comm., 17 Cal. 3d. 785 (1976)

Kaiser Aetna v. U.S., 444 U.S. 164, 179 (1979)

Matthews v. Eldridge, 424 U.S. 319, 334 (1976)

Pfeiffer v. City of La Mesa, 69 Cal. App. 3d. 74, 78 (1977)

PennCentral, 438 U.S. 124

Armstrong v. U.S., 364 U.S. 40, 49 (1960)

Northern Pipeline v. Marathon, U.S. 102 Reporter, p. 2858, 28 June, 1982. Art. I v. Art. 3 usage, Does not have force of law. V 104, Supra Reporter, 175-1, April 17, 1984.

31 Cal. 3d. 288; 182 Cal. Rptr. 599, 644 p. 2d. 792, 104 S.Ct. 1751 (1984)



U.S. Circuit Court will enforce new equity created by State statute



Wisconsin etc., R.R. v. Wisconsin, et., Land Col, 71 Wis. 102, 36 N.W. 841

State v. Hewit Land Co., 134 Pac. Rep. 474

Hogan v. Page, 2 S.Ct. 605, 69 U.S. 605, 17 L.Ed. 854 98 Stat. 1671

Wisconsin Central Railroad Co. v. Price County

Bagnell et al. v. Broderick, 13 Pet. 450

Raestle v. Whitson, 582 P.2d. 170

Walliker v. Escott, 608 P.2d. 1272

Litchfield v. Register and Receiver, 9 Wall. (U.S.) 575, 19 L.Ed. 681

U.S. v. Steenerson, et al, 50 Fed 504, CCA 552, 4 US App. 332

Jenkins v. Gibson, 2 La. Ann. 203, Louisiana 18 How. 87

Minter v. Crommelin, 18 U.S. 87, 15 L.Ed. 279

King v. McAndrews, 11F 860, 50 CCA 29

Davis v. Fell, 211 P. 30, 59 Call. App. 438

Thompson v. Thompson, 155 P. 1190, 79 Or. 513

Vanderheyden v. Crandall, 2 Denio (N.Y.) 21

Backus v. McCoy, 3 Ohio 221, 17 Am. Dec. 585

Tate v. Jay, 31 Ark. 579

Wallace v. Harmstad, 44 Pa. 492

Barker v. Dayton, 28 Wis., 367

Wilcox v. Jackson, 13 Pet. (U.S.) 498, 10 L.Ed. 264

Wineman v. Gastrell, 54 Fed. 810

U.S. v. Cherokee Nations, 474 F.2d. 628 (1973)

Ruddy v. Rossi, 248 U.S. 104 (1918)

Desenroth v. Dodge, 350 Il. App. 20, 11 NE 2d. 575 (1953)

Lomax v. Pickering, 173 U.S. 26, 43 L.Ed. 601

[suijuris]

The land patent is the best defense, if you want something firmly grounded in law on your side, make use of the patent!



Chapter 11 may also be an option - I always mention it when nobody else does. It allows you to switch roles - you go on the offense instead of playing defense.



Have you demanded the ORIGONAL NOTE in discovery? Anything less is not acceptable and there are cites supporting this if you will search this forum.

[ntellect]

Can I still file Ch 11 even though the mortgage company has already foreclosed on my property? Secondly, I haven't had an opportunity to request the ORIGINAL NOTE in the court room yet. What is "discovery?"



I go to court on Monday and the lawyers are attempting to make me pay rent. Part of the evidence that they submitted in their motion is a "copy" of the adjustable rate note that I signed but it's not the original.



Any advice?

Ntellect

[suijuris]

Ntellect,



As far as I know, chapter 11 is still a viable option, as long as the court has not granted the mortgage company title.



What is discovery? It is a rule of the court that allows you to DEMAND papers and statements from the other party you are in court with. Please, take the time to read your state's rules of civil proceedure.

[Ice]

Why are you not attempting to have the judgment vacated?



Get in touch with R. Cornforth for more info.

[ntellect]

I filed a Motion To Vacate Foreclosure Order/Judgment and a Writ of Certiorari both in Superior Court. The Writ is to petition the Superior Court to look at the state civil court (dispossessory warrant hearing) case and it's judgment. Which should force the issue of the court to consider the evidence that I submitted and force the mortgage company to submit evidence of the alleged debt. Of course the lawyers for the mortgage company on 5/27 filed a "First Amendment To Answer and Defenses Defendant's Answer and Defenses To Plaintiff's Writ of Certiorari", "Defendant's Response In Opposition To Plaintiff's Motion To Vacate Foreclosure Judgment/Order" and "Defendant's Motion To Dismiss Writ Of Certiorari".



The vacated judgment is still pending. Yet they were able to get a hearing to apparently attempt to make me pay rent until either a hearing or dismissal of the Vacate Foreclosure.



Ntellect

Jerseee,



It's a been a couple years since I have plunged myself into studying the Federal Rules of Evidence, but in your post above, #2 - using the CRA's inability to verify the debt as evidence - smells like hearsay, and as such would be inadmissable. There are about a billion exceptions to the hearsay rule, but I really can't see a court accepting any CRA's docs as evidence.



GENERAL HEARSAY RULE - If it is a statement made outside of court and offered into evidence to prove the truth of the matter asserted, the statement is inadmissible. Is there an exception you are aware of? Or other? (We may want to start a new thread on this one so as not to 'steal' ntellect's thread).



-squirrels

[Ice]

squirrels,



Think of how the CRA's verification of an alleged debt is performed. If I make a claim and cannot offer proof of the claim then the CRA will not report the claim. If the CRA cannot get a bank or mortgage company to properly and lawfully support their claim -- how can the court? Should the court be allowed to accept anything "less" than what the CRA's would accept as "proof of claim" for its verification process?



The point of using the CRA's inability to verify is to supply evidence that the claim cannot be "lawfully" supported. If any entity cannot find verification within the law -- how can the court?



They might bark about "hearsay" -- but when the "rule" used is "LAW" and the 3rd party is bound to adhere to that LAW (as is the court) - the hearsay argument shouldn't be difficult to overcome.

[Jerseee]

Hhhmm Squirrels,



Didn't think you'd have time to join us--I know you are busy nowadays:-)



Anyways, nice sleuthing. i totally understand where you are coming from and thanks for the observation. I do have some questions that you may answer (if you have time) that may help me understand a bit more clearly and tease your mind just a tad.



Would it be hearsay if these are considered to be public records?



Would it border on hearsay if the very agency that is reporting debt (to whomever requests it) is getting the info directly from the alleged creditor?



The CRAs must report accurate information according to the code. (USC 15, CHP 41)



Wouldn't the CRAs be considered a witness after they report this information to the public, which was provided by the alleged creditor?



Wouldn't this situation fall under:



fre, Rule 1005, Public Records



The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.



With this being the case and since the CRAs can never verify anything, which by the code they must remove unverifiable info.... wouldn't the CRAs document make a perfect piece of evidence to disproving the debt and set the table for libel, and a host of other federal crimes?



Especially since the creditors go out of their way to report to them.



Squirrels, I truly believe that this method of using the CRAs would help me ferret out original documents and should make the court force the alleged creditor to cough up the original signed contract--not just the terms of it. And this tactic could possible move the court to dismiss copies and statements since the alleged creditor may have passed fraudulent info to the CRAs and force them into dishonor of the code.



OOh, so many things I think this would do by using the alleged creditors own actions against them. But I could be wrong and missed something critical.....you know me.



Thanks for the help Squirrels, always a pleasure brainstorming with you.