Here is the story.
I started the shindig with a promissory note. Needless to say it was not well received. That was August 02. In December 02 I was the proud holder of a dun letter from an attorney. I CPM’d him as well as NbWC/SA. They basically laughed. In January 03 a summons arrived. Now we come to the end of my education. I didn’t know how to answer it or even what an answer was. A hearing was held in June 03. Even though I brought up things like FDCPA and yes I did swear myself in, I of course lost.
I then appealed but did not submit an appeal brief. I demanded a trial de novo. The way I read the rules for a trail de novo a brief is not required. The appellate court did not see it my way so they dismissed it.
In October 03 along came a writ of assistance from another law firm asking the sheriff to kick my buns out. He did in November.
Meanwhile I had taken the Cornforth seminar. Now let me throw in something else that happened during that time, up to now, is continuing and will continue. I studied. And I studied. Oh and did I mention that I studied.
As I recollect I did not use one Cornforth case in my petition to vacate. I spent many hours at law libraries looking up laws and cases that applied to those laws. I used Indiana cases and a few federal. For example:
Some speaker some place said they would get some clerk half way across the country to make an affidavit saying I signed the note. Yup, that’s what they did alright. Virginia to be exact. But wait! Look at this:
IC 34-37-1-7 Affidavits; foreign states; authenticated
Sec. 7. When an affidavit taken in another state is:
(1) certified by the officer or justice of the peace taking the affidavit, under the:
(A) hand of the officer or justice of the peace; and
(
seal of office, if the officer or justice of the peace has a seal; and
(2) attested by the clerk of the:
(A) circuit or district court; or
(
court of common pleas;
of the county where the officer exercises the duties of office, under the hand of the clerk and seal of the court; and
the clerk certifies that the officer or justice of the peace is, by the laws of the other state, duly empowered to administer oaths and affirmations and to take affidavits, the affidavit is sufficiently authenticated and may be received and used in any Indiana court. As added by P.L.1-1998, SEC.33.
That is in the petition under a heading NO EVIDENCE. There are several cases to back it up and some that state that an affidavit is required for a summary judgment. Example:
Therefore, a court should disregard any inadmissible information contained in an affidavit. Affidavits supporting or opposing summary judgment motions must be made upon personal knowledge of the Affiant and must show that the Affiant is competent to testify upon the matter. When an Affiant makes a conclusion of fact, it must appear that the Affiant had an opportunity to observe and did observe the matters about which he or she testifies. Lee V. Schroeder (1988) 529 N.E2d 349, 352.
There was no attempt by appellee to comply with the above statute. It is claimed, however by appellee that the affidavit is sufficient when attacked for the first time in the appellate courts and that an affidavit should be placed on the same footing as an authentication of commercial documents. With these contentions we cannot agree. It has been held by this court that the affidavit of residence required by ~1066 Burns 1914 [previous IC 34-37-1-7], supra, is jurisdictional; that the statute requiring it is mandatory, and that it cannot be waived by either of the immediate parties to the proceeding. Smith v. Smith, 185 Ind. 75.
I also checked with the court clerk and found that the evidence file was empty. Now an affidavit can substitute for a witness to present evidence. Remember the four legs of the table. The judge can only make a decision based on facts. Facts can only be submitted by a competent witness. But there was no evidence as shown by the court record. If they try to claim the affidavit is evidence I have already killed it with the law. Since I wrote the petition I have found another law:
IC 34-25-2-4
Plaintiff's affidavit
Sec. 4. The plaintiff or a person representing the plaintiff shall make an affidavit showing:
(1) the nature of the plaintiff's claim;
(2) that the plaintiff's claim is just;
(3) the amount that the plaintiff ought to recover; and
(4) that one (1) of the grounds for an attachment enumerated in section 1 of this chapter is present.
As added by P.L.1-1998, SEC.20.
I am keeping that one in storage for the moment. So that was about half of the meat of the petition. Try this one:
IC 32-30-10-3 “Venue Sec. 3. (a) If a mortgagor defaults in the performance of any condition contained in a mortgage, the mortgagee or the mortgagee's assigns may proceed in the circuit court of the county where the real estate is located to foreclose the equity of redemption contained in the mortgage. As added by P.L.2-2002, SEC.15”
Guess what folks this case was done in the SUPERIOR court. Some cites:
“Strong presumption that the legislature did not enact a useless provision…If two statutory provisions are repugnant, as in this case, then the most recent statute out rules and operates to repeal the former. See: Althaus v. Evansville Courier Co., 615 NE2d 441,444; Hinshaw v. Board of Commissioners of Jay County, 611 NE2d 637, 638; Indiana Alcoholic Beverage Com’n v. Osco Drug, 431 NE2d 823, 833.
…foreclosure of a mortgagee in Fountain County and such a foreclosure could only be had in that county in the circuit court. CHADWICIK et al. v. LOUISVILLE JOINT STOCK LAND BANK et al. 6 N.E.2d 741
Subject scatter jurisdiction is power of court to hear and to determine general class of cases to which Proceedings before it belong; that power must be derived from constitution or from statute. Santiago v. Kilmer, 605 N.E.2d 237, rehearing denied,
A summary judgment is a Decision on the merits which merges or bars the action for res judicata purposes and which may not be rendered by a court that itself lacks subject matter jurisdiction. FOSHEE v. SHONEY'S, INC. Cite as 637 N.E.2d 1277 (Ind. 1994)
I also filed four mandatory judicial notices: Case was in superior court. One for each of the two above laws that I used. And one that the original other defendants had signed off on the property. An affidavit was included stating facts about the laws, in superior court, no evidence and such. Go ahead rebut an empty evidence file MF. (not the attorney’s real initials)
I said those two were the meat of the petition. But they were only 2/3 of the petition. I added another section just about subject matter jurisdiction and for the most part only staffed it with cases. I did however, choose the cases with an eye on the “effect” they might have on the local judge.
But when a judge knows that he lacks jurisdiction, or acts in the face of clearly valid statutes or case law expressly depriving him of Jurisdiction, judicial immunity is lost. See Bradley v. Fisher, 80 U.S. (13 Wall.) at 351 ("when the want of jurisdiction is known to the judge, no excuse is permissible"); Turner v. Raynes, 611 F.2d 92, 95 (5th Cir. 1980) (Stump is consistent with the view that "a clearly inordinate exercise of unconferred jurisdiction by a judge-one so as to establish that he embarked on it either knowingly or recklessly-subjects him to personal liability") RANKIN v. HOWARD 633 F.2d 844 (1950)
The only exception to this Sweeping cloak of immunity exists for acts done in “the clear absence of all jurisdiction." GREGORY V. THOMPSON 500 F.2d 59
I do hope you all realize that judges don’t like their cases to be appealed largely because the appellate judges don’t want to mess with them. Gets better. If the appellate court gets a really stupid error case the appellate judges climb all over the local judge that screwed up. He may even loose his job.
Have you been waiting long for your question? Here it is (Ice is estopped):
Lack of subject matter jurisdiction may be raised at any time, and it is duty of reviewing court to raise and determine the issue sua sponte if not raised by parties. Gonnan v. Northeastern REMC, App. 3 Dist.1992, 594 N.E.2d 843, decision clarified on denial of rehearing 597 N.E.2d 366
Why did I put this one in the petition? What is the effect on the local judge?
Jim
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