Challenge to Jurisdiction Federal Rules of Civil Procedure, Rule 60.

Relief from Judgment or Order below "Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but, rather, should dismiss the action." Melo v. US, 505 F2d 1026. A judgment rendered by a court without personal jurisdiction over the defendant is void. It is a nullity. [A judgment shown to be void for lack of personal service on the defendant is a nullity.] Sramek v. Sramek, 17 Kan. App. 2d 573, 576-77, 840 P.2d 553 (1992), rev. denied 252 Kan. 1093 (1993). "Court must prove on the record, all jurisdiction facts related to the jurisdiction asserted." Latana v. Hopper, 102 F. 2d 188; Chicago v. New York, 37 F Supp. 150. "The law provides that once State and Federal Jurisdiction has been challenged, it must be proven." Main v. Thiboutot, 100 S. Ct. 2502 (1980). "Jurisdiction can be challenged at any time." and "Jurisdiction, once challenged, cannot be assumed and must be decided." Basso v. Utah Power & Light Co., 495 F 2d 906, 910. "Defense of lack of jurisdiction over the subject matter may be raised at any time, even on appeal." Hill Top Developers v. Holiday Pines Service Corp., 478 So. 2d. 368 (Fla 2nd DCA 1985) "Once challenged, jurisdiction cannot be assumed, it must be proved to exist." Stuck v. Medical Examiners, 94 Ca 2d 751. 211 P2d 389. "There is no discretion to ignore that lack of jurisdiction." Joyce v. US, 474 F2d 215. "The burden shifts to the court to prove jurisdiction." Rosemond v. Lambert, 469 F2d 416. "A universal principle as old as the law is that a proceedings of a court without jurisdiction are a nullity and its judgment therein without effect either on person or property." Norwood v. Renfield, 34 C 329; Ex parte Giambonini, 49 P. 732. "Jurisdiction is fundamental and a judgment rendered by a court that does not have jurisdiction to hear is void ab initio." In Re Application of Wyatt, 300 P. 132; Re Cavitt, 118 P2d 846. "Thus, where a judicial tribunal has no jurisdiction of the subject matter on which it assumes to act, its proceedings are absolutely void in the fullest sense of the term." Dillon v. Dillon, 187 P 27. "A court has no jurisdiction to determine its own jurisdiction, for a basic issue in any case before a tribunal is its power to act, and a court must have the authority to decide that question in the first instance." Rescue Army v. Municipal Court of Los Angeles, 171 P2d 8; 331 US 549, 91 L. ed. 1666, 67 S.Ct. 1409. "A departure by a court from those recognized and established requirements of law, however close apparent adherence to mere form in method of procedure, which has the effect of depriving one of a constitutional right, is an excess of jurisdiction." Wuest v. Wuest, 127 P2d 934, 937. "Where a court failed to observe safeguards, it amounts to denial of due process of law, court is deprived of juris." Merritt v. Hunter, C.A. Kansas 170 F2d 739. "The fact that the petitioner was released on a promise to appear before a magistrate for an arraignment, that fact is circumstance to be considered in determining whether in first instance there was a probable cause for the arrest." Monroe v. Papa, DC, Ill. 1963, 221 F Supp 685. Read US v. Lopez and Hagans v. Levine both void because of lack of jurisdiction. In Lopez the circuit court called it right, and in Hagans it had to go to the Supreme court before it was called right, in both cases, void. Challenge jurisdiction and motion to dismiss, right off the bat. If you read the Supreme Court cases you will find that jurisdiction can be challenged at any time and in the case of Lopez it was a jury trial which was declared void for want of jurisdiction. If it [jurisdiction] doesn't exist, it can not justify conviction or judgment. ...without which power (jurisdiction) the state CANNOT be said to be "sovereign." At best, to proceed would be in "excess" of jurisdiction which is as well fatal to the State's/ USA 's cause. Broom v. Page 1 of 74

Douglas, 75 Ala 268, 57 So 860 the same being jurisdictional facts FATAL to the government's cause ( e.g. see In re FNB, 152 F 64).

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---Federal Rules of Civil Procedure, Rule 60. Relief from Judgment or Order >(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. 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., Sec. 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill or review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. ----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. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. Where necessary parties in government have actual notice of suit, suffer no prejudice from technical defect in service, and there is justifiable excuse for failure to serve properly, courts should not construe rule 4 of these rules governing service so rigidly, or construe this rule governing relief from orders so narrowly, as to prevent relief from dismissal, especially where dismissal signals demise of all or some of plaintiff's claims. Jordan v. U.S., C.A.D.C. 1982, 694 F.2d 833, 224 U.S.App.D.C. 267. A liberal construction of this rule is particularly appropriate where equitable considerations are involved. Johnson Waste Materials v. Marshall, C.A.5 (Tex) 1980, 611 F.2d 593. This rule authorizing a court on motion to relieve a party or a legal representative from a final judgment or order for any reason justifying relief is to be liberally applied in a proper case, that is, in a case involving extraordinary circumstances or extreme hardship. U.S.S. v. Cirami, C.A.2 (N.Y) 1977, 563 F.2d 26, on remand 92 F.R.D. 483. See, also, Marquette Corp. v. Priester, D.C.S.C.1964, 234 F.Supp. 799; U.S. v. $3,216.59 in U.S. Currency, D.C.S.C.1967, 41 F.R.D. 433. Subd. (b)(4) to (6) of this rule that court may relieve party from final judgment if it is void, if it is no longer equitable that judgment should have prospective application or for any other reason justifying relief from operation of judgment, is to be liberally construed to carry out purpose of avoiding enforcement of erroneous judgment. Blanchard v. St. Paul Fire & Marine Ins. Co., C.A.5 (Fla.) 1965, 341 F.2d 351, certiorari denied 86 S.Ct. 66, 382 U.S. 829, 15 L.Ed.2d 73. This rule should be liberally construed for purpose of doing substantial justice. In re Hankins, N.D.Miss.1973, 367 F.Supp. 1370. See, also, Fackelman v. Bell, C.A.Ga.1977, 564 F.2d 734; Radack v. Norwegian America Line Agency, Inc., C.A.N.Y.1963, 318 F.2d 538; Triplett v. Azordegan, D.C.Iowa 1977, 478 F.Supp. 872; Tann v. Service Distributors, Inc., D.C.Pa.1972, 56 F.R.D. 593, affirmed 481 F.2d 1399. This rule establishing requirement for granting relief from a final judgment or order is to be given a liberal construction. U. S. v. One 1966 Chevrolet Pickup Truck, E.D.Tex.1972, 56 F.R.D. 459. 7. ---- Void judgment clause: Although this rule providing for relief from judgment is not substitute for appeal and finality of judgments ought not be disturbed except on very narrow grounds, liberal construction should Page 3 of 74

be given this rule to the end that judgments which are void or are vehicles of injustice not be left standing. Brennan v. Midwestern United Life Ins. Co., C.A.7 (Ind.) 1971, 450 F.2d 999, certiorari denied 92 S.Ct. 957, 405 U.S. 921, 30 L.Ed.2d 792. A claim for relief from judgment on basis of "any other reason justifying relief from operation of the judgment" is cognizable where there is evidence of extraordinary circumstances or where there is evidence of extreme hardship or injustice, and, once extraordinary circumstances or hardship is found, this rule is to be liberally applied to accomplish justice. U. S. v. McDonald, N.D.Ill.1980, 86 F.R.D. 204. Attorney's motion for reconsideration on ground that court lacked jurisdiction to order him to pay court reporter could be entertained under rule governing relief from judgment and was not subject to time constraints of rule governing motion to amend judgment. U.S. v. 789 Cases of Latex Surgeon Gloves, C.A.1 (Puerto Rico) 1993, 13 F.3d 12 Void judgments are those rendered by a court which lacked jurisdiction, either of the subject matter or the parties, Wahl v. Round Valley Bank 38 Ariz. 411, 300 P. 955 (1931); Tube City Mining & Milling Co. v. Otterson, 16 Ariz. 305, 146 P. 203 (1914); and Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 2d 278 (1940). A void judgment which includes judgment entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent power to enter the particular judgment, or an order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court, Long v. Shorebank Development Corp., 182 F.3d 548 ( C.A. 7 Ill. 1999). A void judgment is one which from the beginning was complete nullity and without any legal effect, Hobbs v. U.S. Office of Personnel Management, 485 F.Supp. 456 (M.D. Fla. 1980). Void judgment is one that, from its inception, is complete nullity and without legal effect, Holstein v. City of Chicago, 803 F.Supp. 205, reconsideration denied 149 F.R.D. 147, affirmed 29 F.3d 1145 (N.D. Ill 1992). Void judgment is one where court lacked personal or subject matter jurisdiction or entry of order violated due process, U.S.C.A. Const. Amend. 5 Triad Energy Corp. v. McNell 110 F.R.D. 382 (S.D.N.Y. 1986). Judgment is a void judgment if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process, Fed. Rules Civ. Proc., Rule 60(b)(4), 28 U.S.C.A.; U.S.C.A. Const. Amend. 5 Klugh v. U.S., 620 F.Supp. 892 (D.S.C. 1985). A void judgment is one which, from its inception, was, was a complete nullity and without legal effect, Rubin v. Johns, 109 F.R.D. 174 (D. Virgin Islands 1985). A void judgment is one which, from its inception, was a complete nullity and without legal effect, Lubben v. Selevtive Service System Local Bd. No. 27, 453 F.2d 645, 14 A.L.R. Fed. 298 (C.A. 1 Mass. 1972). A void judgment is one which, from its inception, is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind the parties or to support a right, of no legal force and effect whatever, and incapable of enforcement in any manner or to any degree Loyd v. Director, Dept. of Public Safety, 480 So. 2d 577 (Ala. Civ. App. 1985). A judgment shown by evidence to be invalid for want of jurisdiction is a void judgment or at all events has all attributes of a void judgment, City of Los Angeles v. Morgan, 234 P.2d 319 (Cal.App. 2 Dist. 1951). Void judgment which is subject to collateral attack, is simulated judgment devoid of any potency because of jurisdictional defects, Ward v. Terriere, 386 P.2d 352 (Colo. 1963). A void judgment is a simulated judgment devoid of any potency because of jurisdictional defects only, in the court rendering it and defect of jurisdiction may relate to a party or parties, the subject matter, the cause of action, the question to be determined, or relief to be granted, Davidson Chevrolet, Inc. v. City and County of Denver, 330 P.2d 1116, certiorari denied 79 S.Ct. 609, 359 U.S. 926, 3 L.Ed. 2d 629 (Colo. 1958). Void judgment is one entered by court without jurisdiction of parties or subject matter or that lacks inherent power to make or enter particular order involved and such a judgment may be attacked at any time, either directly or collaterally, Page 4 of 74

People v. Wade, 506 N.W.2d 954 (Ill. 1987). Void judgment may be defined as one in which rendering court lacked subject matter jurisdiction, lacked personal jurisdiction or acted in manner inconsistent with due process of law Eckel v. MacNeal, 628 N.E. 2d 741 (Ill. App. Dist. 1993). Void judgment is one entered by court without jurisdiction of parties or subject matter or that lacks inherent power to make or enter particular order involved; such judgment may be attacked at any time, either directly or collaterally People v. Sales, 551 N.E.2d 1359 (Ill.App. 2 Dist. 1990). Res judicata consequences will not be applied to a void judgment which is one which, from its inception, is a complete nullity and without legal effect, Allcock v. Allcock 437 N.E. 2d 392 (Ill. App. 3 Dist. 1982). Void judgment is one which, from its inception is complete nullity and without legal effect In re Marriage of Parks, 630 N.E. 2d 509 (Ill.App. 5 Dist. 1994). Void judgment is one entered by court that lacks the inherent power to make or enter the particular order involved, and it may be attacked at any time, either directly or collaterally; such a judgment would be a nullity People v. Rolland 581 N.E.2d 907, (Ill.App. 4 Dist. 1991). Void judgment under federal law is one in which rendering court lacked subject matter jurisdiction over dispute or jurisdiction over parties, or acted in manner inconsistent with due process of law or otherwise acted unconstitutionally in entering judgment, U.S.C.A. Const. Amed. 5, Hays v. Louisiana Dock Co., 452 n.e.2D 1383 (Ill. App. 5 Dist. 1983). A void judgment has no effect whatsoever and is incapable of confirmation or ratification, Lucas v. Estate of Stavos, 609 N. E. 2d 1114, rehearing denied, and transfer denied (Ind. App. 1 dist. 1993). Void judgment is one that from its inception is a complete nullity and without legal effect Stidham V. Whelchel, 698 N.E.2d 1152 (Ind. 1998). Relief form void judgment is available when trial court lacked either personal or subject matter jurisdiction, Dusenberry v. Dusenberry, 625 N.E. 2d 458 (Ind.App. 1 Dist. 1993). Void judgment is one rendered by court which lacked personal or subject matter jurisdiction or acted in manner inconsistent with due process, U.S.C.A. Const. Amends. 5, 14 Matter of Marriage of Hampshire, 869 P.2d 58 ( Kan. 1997). Judgment is void if court that rendered it lacked personal or subject matter jurisdiction; void judgment is nullity and may be vacated at any time, Matter of Marriage of Welliver, 869 P.2d 653 (Kan. 1994). A void judgment is one rendered by a court which lacked personal or subject matter jurisdiction or acted in a manner inconsistent with due process In re Estate of Wells, 983 P.2d 279, (Kan. App. 1999). Void judgment is one rendered in absence of jurisdiction over subject matter or parties 310 N.W. 2d 502, (Minn. 1981). A void judgment is one rendered in absence of jurisdiction over subject matter or parties, Lange v. Johnson, 204 N.W.2d 205 (Minn. 1973). A void judgment is one which has merely semblance, without some essential element, as when court purporting to render is has no jurisdiction, Mills v. Richardson, 81 S.E. 2d 409, (N.C. 1954). A void judgment is one which has a mere semblance, but is lacking in some of the essential elements which would authorize the court to proceed to judgment, Henderson v. Henderson, 59 S.E. 2d 227, (N.C. 1950). Void judgment is one entered by court without jurisdiction to enter such judgment, State v. Blankenship 675 N.E. 2d 1303, (Ohio App. 9 Dist. 1996). Void judgment, such as may be vacated at any time is one whose invalidity appears on face of judgment roll, Graff v. Kelly, 814 P.2d 489 (Okl. 1991). A void judgment is one that is void on face of judgment roll, Capital Federal Savings Bank v. Bewley, 795 P.2d 1051 (Okl. 1990). Where condition of bail bond was that defendant would appear at present term of court, judgment forfeiting bond for defendants bail to appear at subsequent term was a void judgment within rule that laches does not run against a void judgment Com. V. Miller, 150 A.2d 585 (Pa. Super. 1959). A void judgment is one which shows upon face of record a want of jurisdiction in court assuming to render the judgment, Underwood v. Brown, 244 S.W. 2d 168 (Tenn. 1951). Page 5 of 74

A Void judgment is one which shows upon face of record want of jurisdiction in court assuming to render judgment, and want of jurisdiction may be either of person, subject matter generally, particular question to be decided or relief assumed to be given, State ex rel. Dawson v. Bomar, 354 S.W. 2d 763, certiorari denied, (Tenn. 1962). A void judgment is one in which the judgment is facially invalid because the court lacked jurisdiction or authority to render the judgment, State v. Richie, 20 S.W.3d 624 (Tenn. 2000). A void judgment is one which shows on face of record the want of jurisdiction in court assuming to render judgment, which want of jurisdiction may be either of the person, or of the subject matter generally, or of the particular question attempted to decided or relief assumed to be given, Richardson v. Mitchell, 237 S.W. 2d 577, (Tenn.Ct. App. 1950). Void judgment is one which has no legal force or effect whatever, it is an absolute nullity, its invalidity may be asserted by any person whose rights are affected at any time and at any place and it need not be attacked directly but may be attacked collaterally whenever and wherever it is interposed, City of Lufkin v. McVicker, 510 S.W. 2d 141 (Tex. Civ. App. Beaumont 1973). A void judgment, insofar as it purports to be pronouncement of court, is an absolute nullity, Thompson v. Thompson, 238 S.W.2d 218 (Tex.Civ.App. Waco 1951). A void judgment is one that has been procured by extrinsic or collateral fraud or entered by a court that did not have jurisdiction over the subject matter or the parties." Rook v. Rook, 233 Va. 92, 95, 353 S.E.2d 756, 758 (1987) A void judgment is a judgment, decree, or order entered by a court which lacks jurisdiction of the parties or of the subject matter, or which lacks the inherent power to make or enter the particular order involved, State ex rel. Turner v. Briggs, 971 P.2d 581 (Wash. App. Div. 1999). A void judgment or order is one that is entered by a court lacking jurisdiction over the parties or the subject matter, or lacking the inherent power to enter the particular order or judgment, or where the order was procured by fraud, In re Adoption of E.L., 733 N.E.2d 846, (Ill.App. 1 Dist. 2000). Void judgments are those rendered by court which lacked jurisdiction, either of subject matter or parties, Cockerham v. Zikratch, 619 P.2d 739 (Ariz. 1980). Void judgments generally fall into two classifications, that is, judgments where there is want of jurisdiction of person or subject matter, and judgments procured through fraud, and such judgments may be attacked directly or collaterally, Irving v. Rodriquez, 169 N.E.2d 145, (Ill.app. 2 Dist. 1960). Invalidity need to appear on face of judgment alone that judgment or order may be said to be intrinsically void or void on its face, if lack of jurisdiction appears from the record, Crockett Oil Co. v. Effie, 374 S.W.2d 154 ( Mo.App. 1964). Decision is void on the face of the judgment roll when from four corners of that roll, it may be determined that at least one of three elements of jurisdiction was absent: (1) jurisdiction over parties, (2) jurisdiction over subject matter, or (3) jurisdictional power to pronounce particular judgment hat was rendered, B & C Investments, Inc. v. F & M Nat. Bank & Trust, 903 P.2d 339 (Okla. App. Div. 3, 1995). Void order may be attacked, either directly or collaterally, at any time, In re Estate of Steinfield, 630 N.E.2d 801, certiorari denied, See also Steinfeld v. Hoddick, 513 U.S. 809, (Ill. 1994). Void order which is one entered by court which lacks jurisdiction over parties or subject matter, or lacks inherent power to enter judgment, or order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that party is properly before court, People ex rel. Brzica v. Village of Lake Barrington, 644 N.E.2d 66 (Ill.App. 2 Dist. 1994). While voidable orders are readily appealable and must be attacked directly, void order may be circumvented by collateral attack or remedied by mandamus, Sanchez v. Hester, 911 S.W.2d 173, (Tex.App. Corpus Christi 1995). Arizona courts give great weight to federal courts interpretations of Federal Rule of Civil Procedure governing motion for relief from judgment in interpreting identical text of Arizona Rule of Civil Procedure, Estate of Page v. Litzenburg, 852 P.2d 128, review denied (Ariz.App. Div. 1, 1998). Page 6 of 74

When rule providing for relief from void judgments is applicable, relief is not discretionary matter, but is mandatory, Orner v. Shalala, 30 F.3d 1307, (Colo. 1994). Judgments entered where court lacked either subject matter or personal jurisdiction, or that were otherwise entered in violation of due process of law, must be set aside, Jaffe and Asher v. Van Brunt, S.D.N.Y.1994. 158 F.R.D. 278. A void judgment as we all know, grounds no rights, forms no defense to actions taken thereunder, and is vulnerable to any manner of collateral attack (thus here, by ). No statute of limitations or repose runs on its holdings, the matters thought to be settled thereby are not res judicata, and years later, when the memories may have grown dim and rights long been regarded as vested, any disgruntled litigant may reopen the old wound and once more probe its depths. And it is then as though trial and adjudication had never been. 10/13/58 FRITTS v. KRUGH. SUPREME COURT OF MICHIGAN, 92 N.W.2d 604, 354 Mich. 97. On certiorari this Court may not review questions of fact. Brown v. Blanchard, 39 Mich 790. It is not at liberty to determine disputed facts (Hyde v. Nelson, 11 Mich 353), nor to review the weight of the evidence. Linn v. Roberts, 15 Mich 443; Lynch v. People, 16 Mich 472. Certiorari is an appropriate remedy to get rid of [({a void judgment one which there is no evidence to sustain.})] Lake Shore & Michigan Southern Railway Co. v. Hunt, 39 Mich 469. In Stoesel v. American Home, 362 Sel. 350, and 199 N.E. 798 (1935), the court ruled and determined that, Under Illinois Law and Federal Law, when any officer of the Court has committed fraud on the Court, the order and judgment of that court are void and of no legal force and effect. In Sparks v. Duval County Ranch, 604 F.2d 976 (1979), the court ruled and determined that, No immunity exists for co conspirators of judge. There is no derivative immunity for extra-judicial actions of fraud, deceit and collusion. In Edwards v. Wiley, 374 P.2d 284, the court ruled and determined that, Judicial officers are not liable for erroneous exercise of judicial powers vested in them, but they are not immune from liability when they act wholly in excess of jurisdiction. See also, Vickery v. Dunnivan, 279 P.2d 853, (1955). In Beall v. Reidy, 457 P.2d 376, the court ruled and determined, Except by consent of all parties a judge is disqualified to sit in trial of a case if he comes within any of the grounds of disqualification named in the Constitution. In Taylor v. OGrady, 888 F.2d 1189, 7th Cir. (1989), the circuit ruled, Further, the judge has a legal duty to disqualify, even if there is no motion asking for his disqualification. Also, when a lower court has no jurisdiction to enter judgment, the question of jurisdiction may be raised for the first time on appeal. See DeBaca v. Wilcox, 68 P. 922. The right to a tribunal free from bias and prejudice is based on the Due Process Clause. Should a judge issue any order after he has been disqualified by law, and if the party has been denied of any of his/her property, then the judge has engaged in the crime of interference with interstate commerce; the judge has acted in his/her personal capacity and not in the judges judicial capacity. See U.S. v. Scinto, 521 F.2d 842 at page 845, 7th circuit, 1996. Party can attack subject matter jurisdiction at anytime in the proceeding, even raising jurisdiction for the first time on appeal, State v. Begay, 734 P.2d 278. A prejudiced, biased judge who tries a case deprives a party adversely affected of due process. See Nelson v. Cox, 66 N.M. 397. There is no time limit when a judgment is void: Precision Eng. V. LPG, C.A. 1st (1992) 953 F.2d 21 at page 22, Meadows v. Dominican Republic CA th 9 (1987) 817 F.2d at page 521, In re: Center Wholesale, Inc. C.A. 10th (1985) 759 F.2d 1440 at page 1448, Misco Leasing v. Vaughn CA 10th (1971) 450 F.2d 257, Taft v. Donellen C.A. 7th (1969) 407 F.2d 807, and Bookout v. Beck CA 9th (1965) 354 F.2d 823. See also, Hawkeye Security Ins. V. Porter, D.C. Ind. 1982, 95 F.R.D. 417, at page 419, Saggers v. Yellow Freight D.C. Ga. (1975) 68 F.R.D. 686 at page 690, J.S. v. Melichar D.C. Wis. (1972) 56 F.R.D. 49, Ruddies v. Auburn Spark Plug. 261 F. Supp. 648, Garcia v. Garcia, Utah 1986 712 P.2d 288 at page 290, and Calasa v. Greenwell, (1981) 633 P.2d 555 at page 585, 2 Hawaii 395. Judgment was vacated as void after 30 years in entry, Crosby. V. Bradstreet, CA 2nd (1963) 312 F.2d 483 cert. denied 83 S.Ct. 1300, 373 US 911, 10 L. Ed. 2.d 412. Delay of 22 years did not bar relief, U.S. v. Williams, D.C. Ark. (1952) 109 F.Supp. 456. Page 7 of 74

---->A motion to set aside a judgment as void for lack of jurisdiction is not subject to the time limitations of Rule 60(b). See Garcia v. Garcia, 712 P.2d 288 (Utah 1986). >A judgment is void, and therefore subject to relief under Rule 60(b)(4), only if the court that rendered judgment lacked jurisdiction or in circumstances in which the court's action amounts to a plain usurpation of power constituting a violation of due process. United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 661 (1st Cir. 1990) >Where Rule 60(b)(4) is properly invoked on the basis that the underlying judgment is void, "'relief is not a discretionary matter; it is mandatory.'" Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994) (quoting V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 224 n.8 (10th Cir. 1979)). >In order for a judgment to be void, there must be some jurisdictional defect in the court's authority to enter the judgment, either because the court lacks personal jurisdiction or because it lacks jurisdiction over the subject matter of the suit. Puphal v. Puphal, 105 Idaho 302, 306, 669 P.2d 191, 195 (1983); Dragotoiu, 133 Idaho at 647, 991 P.2d at 379. >A court may not render a judgment which transcends the limits of its authority, and a judgment is void if it is beyond the powers granted to the court by the law of its organization, even where the court has jurisdiction over the parties and the subject matter. Thus, if a court is authorized by statute to entertain jurisdiction in a particular case only, and undertakes to exercise the jurisdiction conferred in a case to which the statute has no application, the judgment rendered is void. The lack of statutory authority to make particular order or a judgment is akin to lack of subject matter jurisdiction and is subject to collateral attack. 46 Am. Jur. 2d, Judgments 25, pp. 388-89. >"A court cannot confer jurisdiction where none existed and cannot make a void proceeding valid. It is clear and well established law that a void order can be challenged in any court", OLD WAYNE MUT. L. ASSOC. v. McDONOUGH, 204 U. S. 8, 27 S. Ct. 236 (1907). >"Jurisdiction, once challenged, cannot be assumed and must be decided." Maine v Thiboutot 100 S. Ct. 250. >"The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings." Hagans v Lavine 415 U. S. 533. Though not specifically alleged, defendant's challenge to subject matter jurisdiction implicitly raised claim that default judgment against him was void and relief should be granted under Rule 60(b)(4). Honneus v. Donovan, 93 F.R.D. 433, 436-37 (1982), aff'd, 691 F.2d 1 (1st Cir. 1982). >"A judgment is void if the court acted in a manner inconsistent with due process. A void judgment is a nullity and may be vacated at any time." 261 Kan. at 862. >A judgment obtained without jurisdiction over the defendant is void. Overby v. Overby , 457 S.W.2d 851 (Tenn. 1970). >Although Rule 60(b)(4) is ostensibly subject to the "reasonable" time limit of Rule 60(b), at least one court has held that no time limit applies to a motion under the Rule 60(b)(4) because a void judgment can never acquire validity through laches. See Crosby v. Bradstreet Co., 312 F.2d 483 (2nd Cir.) cert. denied, 373 U.S. 911, 83 S.Ct. 1300, 10 L.Ed.2d 412 (1963) where the court vacated a judgment as void 30 years after entry. See also Marquette Corp. v. Priester, 234 F.Supp. 799 (E.D.S.C.1964) where the court expressly held that clause Rule 60(b)(4) carries no real time limit. Challenge to Jurisdiction Challenging jurisdiction is one of the best defenses you can make, because if you use the right argument it is almost impossible for you to loose! If they attempt to tell you that you can't question their jurisdiction you can easily shut them up with these court rulings! Are we on the record? I don't say anything further until we are. Where is the competent fact witness? Where is the damaged party? Page 8 of 74

Who brings the claim? Who is underwriting this action? As a man, as an accused by law, I come with the presumption of innocent and I can go with that. Hey, as keeper of the records for the thing, I'm willing to plead the defendant guilty upon validated proof of claim. Where is the Form 1099OID? Who are you people and why do you deem yourselves better than me? Equality under the Law is paramount and mandatory by law. I am unrepresented, I don't "do Attorneys" as I have found them to be injurious to my freedom, life, liberty and pursuit of happiness. Am I under arrest or am I free to go?

I am a man, not a corporation or a legal "person" nor am I a surety for one. I am a man. I am competent. I am here under duress. I do not consent to this matter. I reserve all rights at all times in all places and I waive no rights at any time or in any place. I do waive benefit privilege. If I am here at all, I am here in special appearance to challenge jurisdiction and to have this matter dismissed. I see a yellow fringe around your flag which clearly advertises "admiralty matters settled here" - so again I say, where is the contract? Where is the contract wherein I knowingly and willingly, with full disclosure, consented or otherwise agreed to be treated this way? I believe this court lacks a jurisdiction. I want to see the supposed jurisdiction that was duly placed into evidence. Can this court move on facts not in evidence ? I do not understand the nature and cause of the accusation with regard to the elements of personal jurisdiction, venue, underwriting and the nature of the action until the prosecution properly alleges them. I cannot rebut an unstated presumption. I am therefore unable to plea to the charges until I have had an opportunity to raise a meaningful defense against the elements.

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VOID JUDGMENTS 4 Secrets of the Legal Industry Most judgments are not merely voidable, but are in fact VOID JUDGMENTS. They can be vacated; made to go away (Although, it is an up hill battle, much like pushing a rope). Rarely has any authenticated evidence, competent fact witness, or even a claim been put before a court and on the record. Defective affidavits, hearsay as evidence and no stated damages are but a few elements that rob the court of subject matter jurisdiction (at last count there are 22 elements that deprive the court of SMJ). Some of the elements are: denial of due process, denial of meaningful access to court, fraud upon the court, and fraud upon the court by the court. (Although these pages are aimed primarily towards debt, credit card debt, the principals set forth herein apply to virtually all civil and criminal cases.) Common pleas such as "open account" or "account stated" are often used in place of, and sometimes in conjunction with, breach of contract. To file under breach a contract would require that they bring in the signed contract, agreement, or note. They don't bring in a contract, they bring in the "terms of agreement" which has no signature or persons name on it, a template that could apply to anyone. These are just some of the tools used by debt collectors (credit card debt collectors in particular) and their counsel to perpetrate a fraud upon the court, with or without the courts cooperation or complicity. At the same time, courts, almost as a rule, openly display a bitter and venomous hatred of pro se / pro per litigants. So don't expect the courts to just roll over and give you what you demand without a battle. It doesn't matter to them that you are right, it matters only that you are pro se; an inferior, low life being, and the courts have a position and the income of their brotherhood to protect. This attitude by the courts and Bar authorized attorneys tends to support the position expressed by Bill Bauer from CreditWrench.com: "There's more value in being a pain in the arse than in being right." These are the four secrets: 1. Courts of general, limited, or inferior jurisdiction have no inherent judicial power.* Courts of general, limited, or inferior jurisdiction get their jurisdiction from one source and one source only: SUFFICIENT PLEADINGS. Someone before the court must tell the court what its jurisdiction is. Without pleadings sufficient to empower the court to act, that court cannot have judicial capacity. No judge has the power to determine whether he has jurisdiction. He does have the duty to tell when he does not. ....What this means to you is that no court can declare that it has the legal power to hear or decide cases, i.e. jurisdiction. Jurisdiction must be proved and on the record. Without sufficient pleadings, without jurisdiction, no court can issue a judgment that isnt void ab initio, void from the beginning, void on its face, a nullity, without force and effect. 2. We have a common law system. No statute, no rule, or no law means what it says as it is written. Only the holding tells you what it means. Page 10 of 74

The statute means what the highest court of competent jurisdiction has ruled and determined that the statute means in their most recent ruling. ....What this means to you is that courts are governed/ruled by case law, what has been determined before, what the highest court of competent jurisdiction has said the law is, means. It is called the Doctrine of Precedent. This doctrine is so powerful that it can kill and has. A family in Florida has become quite familiar with this doctrine when they tried for 15 years to prevent feeding tubes from being removed from their daughter who was in a vegetative state. 3. Attorneys CANNOT testify. Statements of counsel in brief or in argument are never facts before the court. ....What this means to you is that no attorney can state a fact before the court. This was more than adequately pointed out in 2000 when thousands of Florida ballots were taken before the U.S. Supreme Court, without even so much as one competent fact witness. Without a witness the court could not see the ballots, the ballots were not before the court, and the ballots could not be introduced as evidence. 4. Before any determination, there must be a court of complete or competent jurisdiction. There must be two parties with capacity to be there. There must be subject matter jurisdiction. Appearance or testimony of a competent fact witness. ....What this means to you is that without jurisdiction, complete jurisdiction, no court can issue a judgment that isnt void, a nullity, without force or effect, on its face and in fact. *"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." U.S. Const. art. III, 1, cl. 1. Void Judgment Details Restated with evidence cited 22 Reasons Simply Stated Research Links, Videos, Court Filings & Confessions Summary Interested in knowing more? ________________________________________________________ - Helm Society School Announcing Week Long Classes! A word from Richard on the Helm Society School. Meet Richard Cornforth - Video ___________________________ Why pay debt collectors when you can make them pay you?! Make'm pay when they break the rules!

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EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT VOID JUDGMENTS BUT WERE AFRAID TO ASK! Void judgments are those rendered by a court which lacked jurisdiction, either of the subject matter or the parties, Wahl v. Round Valley Bank 38 Ariz. 411, 300 P. 955 (1931); Tube City Mining & Milling Co. v. Otterson, 16 Ariz. 305, 146 P. 203 (1914); and Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 2d 278 (1940). A void judgment which includes judgment entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent power to enter the particular judgment, or an order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court, Long v. Shorebank Development Corp., 182 F.3d 548 ( C.A. 7 Ill. 1999). A void judgment is one which, from its inception, was a complete nullity and without legal effect, Lubben v. Selevtive Service System Local Bd. No. 27, 453 F.2d 645, 14 A.L.R. Fed. 298 (C.A. 1 Mass. 1972). A void judgment is one which from the beginning was complete nullity and without any legal effect, Hobbs v. U.S. Office of Personnel Management, 485 F.Supp. 456 (M.D. Fla. 1980). Void judgment is one that, from its inception, is complete nullity and without legal effect, Holstein v. City of Chicago, 803 F.Supp. 205, reconsideration denied 149 F.R.D. 147, affirmed 29 F.3d 1145 (N.D. Ill 1992). Void judgment is one where court lacked personal or subject matter jurisdiction or entry of order violated due process, U.S.C.A. Const. Amend. 5 - Triad Energy Corp. v. McNell 110 F.R.D. 382 (S.D.N.Y. 1986). Judgment is a void judgment if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process, Fed. Rules Civ. Proc., Rule 60(b)(4), 28 U.S.C.A., U.S.C.A. Const. Amend. 5 - Klugh v. U.S., 620 F.Supp. 892 (D.S.C. 1985). A void judgment is one which, from its inception, was, was a complete nullity and without legal effect, Rubin v. Johns, 109 F.R.D. 174 (D. Virgin Islands 1985). A void judgment is one which, from its inception, is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind the parties or to support a right, of no legal force and effect whatever, and incapable of enforcement in any manner or to any degree - Loyd v. Director, Dept. of Public Safety, 480 So. 2d 577 (Ala. Civ. App. 1985). A judgment shown by evidence to be invalid for want of jurisdiction is a void judgment or at all events has all attributes of a void judgment, City of Los Angeles v. Morgan, 234 P.2d 319 (Cal.App. 2 Dist. 1951). Void judgment which is subject to collateral attack, is simulated judgment devoid of any potency because of jurisdictional defects, Ward v. Terriere, 386 P.2d 352 (Colo. 1963). A void judgment is a simulated judgment devoid of any potency because of jurisdictional defects only, in the court rendering it and defect of jurisdiction may relate to a party or parties, the subject matter, the cause of action, the question to be determined, or relief to be granted, Davidson Chevrolet, Inc. v. City and County of Denver, 330 P.2d 1116, certiorari denied 79 S.Ct. 609, 359 U.S. 926, 3 L.Ed. 2d 629 (Colo. 1958). Void judgment is one entered by court without jurisdiction of parties or subject matter or that lacks inherent power to make or enter particular order involved and Page 12 of 74

such a judgment may be attacked at any time, either directly or collaterally, People v. Wade, 506 N.W.2d 954 (Ill. 1987). Void judgment may be defined as one in which rendering court lacked subject matter jurisdiction, lacked personal jurisdiction or acted in manner inconsistent with due process of law Eckel v. MacNeal, 628 N.E. 2d 741 (Ill. App. Dist. 1993). Void judgment is one entered by court without jurisdiction of parties or subject matter or that lacks inherent power to make or enter particular order involved; such judgment may be attacked at any time, either directly or collaterally People v. Sales, 551 N.E.2d 1359 (Ill.App. 2 Dist. 1990). Res judicata consequences will not be applied to a void judgment which is one which, from its inception, is a complete nullity and without legal effect, Allcock v. Allcock, 437 N.E. 2d 392 (Ill. App. 3 Dist. 1982). Void judgment is one which, from its inception is complete nullity and without legal effect In re Marriage of Parks, 630 N.E. 2d 509 (Ill.App. 5 Dist. 1994). Void judgment is one entered by court that lacks the inherent power to make or enter the particular order involved, and it may be attacked at any time, either directly or collaterally; such a judgment would be a nullity. People v. Rolland, 581 N.E.2d 907, (Ill.App. 4 Dist. 1991). Void judgment under federal law is one in which rendering court lacked subject matter jurisdiction over dispute or jurisdiction over parties, or acted in manner inconsistent with due process of law or otherwise acted unconstitutionally in entering judgment, U.S.C.A. Const. Amed. 5, Hays v. Louisiana Dock Co., 452 n.e.2D 1383 (Ill. App. 5 Dist. 1983). A void judgment has no effect whatsoever and is incapable of confirmation or ratification, Lucas v. Estate of Stavos, 609 N. E. 2d 1114, rehearing denied, and transfer denied (Ind. App. 1 dist. 1993). Void judgment is one that from its inception is a complete nullity and without legal effect Stidham V. Whelchel, 698 N.E.2d 1152 (Ind. 1998). Relief from void judgment is available when trial court lacked either personal or subject matter jurisdiction, Dusenberry v. Dusenberry, 625 N.E. 2d 458 (Ind.App. 1 Dist. 1993). Void judgment is one rendered by court which lacked personal or subject matter jurisdiction or acted in manner inconsistent with due process, U.S.C.A. Const. Amends. 5, 14 Matter of Marriage of Hampshire, 869 P.2d 58 ( Kan. 1997). Judgment is void if court that rendered it lacked personal or subject matter jurisdiction; void judgment is nullity and may be vacated at any time, Matter of Marriage of Welliver, 869 P.2d 653 (Kan. 1994). A void judgment is one rendered by a court which lacked personal or subject matter jurisdiction or acted in a manner inconsistent with due process. In re Estate of Wells, 983 P.2d 279, (Kan. App. 1999). Void judgment is one rendered in absence of jurisdiction over subject matter or parties, 310 N.W. 2d 502, (Minn. 1981). A void judgment is one rendered in absence of jurisdiction over subject matter or parties, Lange v. Johnson, 204 N.W.2d 205 (Minn. 1973). A void judgment is one which has merely semblance, without some essential element, as when court purporting to render is has no jurisdiction, Mills v. Richardson, 81 S.E. 2d 409, (N.C. 1954). A void judgment is one which has a mere semblance, but is lacking in some of the Page 13 of 74

essential elements which would authorize the court to proceed to judgment, Henderson v. Henderson, 59 S.E. 2d 227, (N.C. 1950). Void judgment is one entered by court without jurisdiction to enter such judgment, State v. Blankenship, 675 N.E. 2d 1303, (Ohio App. 9 Dist. 1996). Void judgment, such as may be vacated at any time is one whose invalidity appears on face of judgment roll, Graff v. Kelly, 814 P.2d 489 (Okl. 1991). A void judgment is one that is void on face of judgment roll, Capital Federal Savings Bank v. Bewley, 795 P.2d 1051 (Okl. 1990). Where condition of bail bond was that defendant would appear at present term of court, judgment forfeiting bond for defendant's bail to appear at subsequent term was a void judgment within rule that laches does not run against a void judgment, Com. V. Miller, 150 A.2d 585 (Pa. Super. 1959). A void judgment is one in which the judgment is facially invalid because the court lacked jurisdiction or authority to render the judgment, State v. Richie, 20 S.W.3d 624 (Tenn. 2000). Void judgment is one which shows upon face of record want of jurisdiction in court assuming to render judgment, and want of jurisdiction may be either of person, subject matter generally, particular question to be decided or relief assumed to be given, State ex rel. Dawson v. Bomar, 354 S.W. 2d 763, certiorari denied, (Tenn. 1962). A void judgment is one which shows upon face of record a want of jurisdiction in court assuming to render the judgment, Underwood v. Brown, 244 S.W. 2d 168 (Tenn. 1951). A void judgment is one which shows on face of record the want of jurisdiction in court assuming to render judgment, which want of jurisdiction may be either of the person, or of the subject matter generally, or of the particular question attempted to decided or relief assumed to be given, Richardson v. Mitchell, 237 S.W. 2d 577, (Tenn.Ct. App. 1950). Void judgment is one which has no legal force or effect whatever, it is an absolute nullity, its invalidity may be asserted by any person whose rights are affected at any time and at any place and it need not be attacked directly but may be attacked collaterally whenever and wherever it is interposed, City of Lufkin v. McVicker, 510 S.W. 2d 141 (Tex. Civ. App. - Beaumont 1973). A void judgment, insofar as it purports to be pronouncement of court, is an absolute nullity, Thompson v. Thompson, 238 S.W.2d 218 (Tex.Civ.App. - Waco 1951). A void judgment is one that has been procured by extrinsic or collateral fraud, or entered by court that did to have jurisdiction over subject matter or the parties, Rook v. Rook, 353 S.E. 2d 756, (Va. 1987). A void judgment is a judgment, decree, or order entered by a court which lacks jurisdiction of the parties or of the subject matter, or which lacks the inherent power to make or enter the particular order involved, State ex rel. Turner v. Briggs, 971 P.2d 581 (Wash. App. Div. 1999). A void judgment or order is one that is entered by a court lacking jurisdiction over the parties or the subject matter, or lacking the inherent power to enter the particular order or judgment, or where the order was procured by fraud, In re Adoption of E.L., 733 N.E.2d 846, (Ill.App. 1 Dist. 2000). Void judgments are those rendered by court which lacked jurisdiction, either of subject matter or parties, Cockerham v. Zikratch, 619 P.2d 739 (Ariz. 1980). Void judgments generally fall into two classifications, that is, judgments where there Page 14 of 74

is want of jurisdiction of person or subject matter, and judgments procured through fraud, and such judgments may be attacked directly or collaterally, Irving v. Rodriquez, 169 N.E.2d 145, (Ill.app. 2 Dist. 1960). Invalidity need to appear on face of judgment alone that judgment or order may be said to be intrinsically void or void on its face, if lack of jurisdiction appears from the record, Crockett Oil Co. v. Effie, 374 S.W.2d 154 ( Mo.App. 1964). Decision is void on the face of the judgment roll when from four corners of that roll, it may be determined that at least one of three elements of jurisdiction was absent: (1) jurisdiction over parties, (2) jurisdiction over subject matter, or (3) jurisdictional power to pronounce particular judgment hat was rendered, B & C Investments, Inc. v. F & M Nat. Bank & Trust, 903 P.2d 339 (Okla. App. Div. 3, 1995). Void order may be attacked, either directly or collaterally, at any time, In re Estate of Steinfield, 630 N.E.2d 801, certiorari denied, See also Steinfeld v. Hoddick, 513 U.S. 809, (Ill. 1994). Void order which is one entered by court which lacks jurisdiction over parties or subject matter, or lacks inherent power to enter judgment, or order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that party is properly before court, People ex rel. Brzica v. Village of Lake Barrington, 644 N.E.2d 66 (Ill.App. 2 Dist. 1994). While voidable orders are readily appealable and must be attacked directly, void order may be circumvented by collateral attack or remedied by mandamus, Sanchez v. Hester, 911 S.W.2d 173, (Tex.App. - Corpus Christi 1995). Arizona courts give great weight to federal courts' interpretations of Federal Rule of Civil Procedure governing motion for relief from judgment in interpreting identical text of Arizona Rule of Civil Procedure, Estate of Page v. Litzenburg, 852 P.2d 128, review denied (Ariz.App. Div. 1, 1998). When rule providing for relief from void judgments is applicable, relief is not discretionary matter, but is mandatory, Orner v. Shalala, 30 F.3d 1307, (Colo. 1994). Judgments entered where court lacked either subject matter or personal jurisdiction, or that were otherwise entered in violation of due process of law, must be set aside, Jaffe and Asher v. Van Brunt, S.D.N.Y.1994. 158 F.R.D. 278. A "void judgment" as we all know, grounds no rights, forms no defense to actions taken there under, and is vulnerable to any manner of collateral attack (thus here, by ). No statute of limitations or repose runs on its holdings, the matters thought to be settled thereby are not res judicata, and years later, when the memories may have grown dim and rights long been regarded as vested, any disgruntled litigant may reopen the old wound and once more probe its depths. And it is then as though trial and adjudication had never been. 10/13/58 FRITTS v. KRUGH. SUPREME COURT OF MICHIGAN, 92 N.W.2d 604, 354 Mich. 97. On certiorari this Court may not review questions of fact. Brown v. Blanchard, 39 Mich 790. It is not at liberty to determine disputed facts (Hyde v. Nelson, 11 Mich 353), nor to review the weight of the evidence. Linn v. Roberts, 15 Mich 443; Lynch v. People, 16 Mich 472. Certiorari is an appropriate remedy to get rid of a void judgment, one which there is no evidence to sustain. Lake Shore & Michigan Southern Railway Co. v. Hunt, 39 Mich 469. What about default judgments? Anybody you know been subjected to a default judgment? If you ask an attorney or a judge if there is relief from a default judgment, they will ask if you got notice. They will claim if you got notice, there's nothing you can do 'cause you had the opportunity Page 15 of 74

and didn't answer so you lost - tough luck! This just goes to show how little attorneys and judges know about real law. EVEN A DEFAULT JUDGMENT MUST BE PROVED! Oklahoma's law on default judgments = Trial court could not award damages to plaintiff, following default judgment, without requiring evidence of damages. Razorsoft, Inc. v. Maktal, Inc., Okla.App. Div. 1, 907 P.2d 1102 (1995), rehearing denied. A party is not in default so long as he has a pleading on file which makes an issue in the case that requires proof on the part of the opposite party in order to entitle him to recover. Millikan v. Booth, Okla., 4 Okla. 713, 46 P. 489 (1896). Proof of or assessment of damages upon petition claiming damages, it is error to pronounce judgment without hearing proof or assessing damages. Atchison, T. & S.F. Ry. Co. v. Lambert, 31 Okla. 300, 121 P. 654, Ann.Cas.1913E, 329 (1912); City of Guthrie v. T. W. Harvey Lumber Co., 5 Okla. 774, 50 P. 84 (1897). In the assessment of damages following entry of default judgment, a defaulting party has a statutory right to a hearing on the extent of unliquidated damage, and encompassed within this right is the opportunity to a fair post-default inquest at which both the plaintiff and the defendant can participate in the proceedings by crossexamining witnesses and introducing evidence on their own behalf. Payne v. Dewitt, Okla., 995 P.2d 1088 (1999). A default declaration, imposed as a discovery sanction against a defendant, cannot extend beyond saddling defendant with liability for the harm occasioned and for imposition of punitive damages, and the trial court must leave to a meaningful inquiry the quantum of actual and punitive damages, without stripping defendant of basic forensic devices to test the truth of plaintiff's evidence. Payne v. Dewitt, Okla., 995 P.2d 1088 (1999). Fracture of two toes required expert medical testimony as to whether such injury was permanent so as to allow damages for permanent injury, future pain, and future medical treatment on default judgment, and such testimony was not within competency of plaintiff who had no medical expertise. Reed v. Scott, Okla., 820 P.2d 445, 20 A.L.R.5th 913 (1991). Rendition of default judgment requires production of proof as to amount of unliquidated damages. Reed v. Scott, Okla., 820 P.2d 445, 20 A.L.R.5th 913 (1991). When face of judgment roll shows judgment on pleadings without evidence as to amount of unliquidated damages then judgment is void. Reed v. Scott, Okla., 820 P.2d 445, 20 A.L.R.5th 913 (1991). In a tort action founded on an unliquidated claim for damages, a defaulting party is deemed to have admitted only plaintiff's right to recover, so that the court is without authority or power to enter a judgment fixing the amount of recovery in the absence of the introduction of evidence. Graves v. Walters, Okla.App., 534 P.2d 702 (1975). Presumptions which ordinarily shield judgments from collateral attacks were not applicable on motion to vacate a small claim default judgment on ground that court assessed damages on an unliquidated tort claim without first hearing any supporting evidence. Graves v. Walters, Okla.App., 534 P.2d 702 (1975). Rule that default judgment fixing the amount of recovery in absence of introduction of supporting evidence is void and not merely erroneous or voidable obtains with regard to exemplary as well as compensatory damages. Graves v. Walters, Okla.App., 534 P.2d 702 (1975). Page 16 of 74

Where liability of father for support of minor daughter and extent of such liability and amount of attorney's fees to be allowed was dependent on facts, rendering of final judgment by trial court requiring father to pay $25 monthly for support of minor until minor should reach age 18 and $100 attorney's fees without having heard proof thereof in support of allegations in petition was error. Ross v. Ross, Okla., 201 Okla. 174, 203 P.2d 702 (1949). Refusal to render default judgment against codefendant for want of answer was not error, since defendants and court treated answer of defendant on file as having been filed on behalf of both defendants, and since plaintiff could not recover without offering proof of damages and offered no such proof. Thomas v. Williams, Okla., 173 Okla. 601, 49 P.2d 557 (1935). Under R.L.1910, 4779, 5130 (see, now, this section and 2007 of this title), allegation of value, or amount of damages stated in petition, were not considered true by failure to controvert. Cudd v. Farmers' Exch. Bank of Lindsay, Okla., 76 Okla. 317, 185 P. 521 (1919). Hearing Trial court's discovery sanction barring defendant from using crossexamination and other truth-testing devices at post-default non-jury hearing on plaintiff's damages violated due process. Payne v. Dewitt, Okla., 995 P.2d 1088 (1999). If you or anybody you know has a default judgment, go to the courthouse and check the record. If they failed to prove up their claim-that default judgment is void ab initio subject to vacation without time limitation! The really big deal, the real issue in void judgments is, tah, dum, de dum, SUBJECT MATTER JURISDICTION!!!! Remember, subject matter can never be presumed, never be waived, and cannot be constructed even by mutual consent of the parties. Subject matter jurisdiction is two part: the statutory or common law authority for the court to hear the case and the appearance and testimony of a competent fact witness, in other words, sufficiency of pleadings. Even if a court (judge) has or appears to have subject matter jurisdiction, subject matter jurisdiction can be lost. Major reason why subject matter jurisdiction is lost: (1) fraud upon the court, In re Village of Willowbrook, 37 Ill.App.3d 393 (1962) (2) a judge does not follow statutory procedure, Armstrong v Obucino, 300 Ill 140, 143 (1921), (3) unlawful activity of a judge or undisclosed conflict of interest. Code of Judicial Conduct, (4) violation of due process, Johnson v Zerbst, 304 U.S. 458, 58 S.Ct. 1019 (1938); Pure Oil Co. v City of Northlake, 10 Ill.2d 241, 245, 140 N.E.2d 289 (1956); Hallberg v Goldblatt Bros., 363 Ill 25 (1936), (5) if the court exceeded its statutory authority, Rosenstiel v Rosenstiel, 278 F.Supp. 794 (S.D.N.Y. 1967), (6) any acts in violation of 11 U.S.C. 362(a), (the bankruptcy stay) In re Garcia, 109 B.R. 335 (N.D. Illinois, 1989), (7) where no justiciable issue is presented to the court through proper pleadings, Ligon v Williams, 264 Ill.App.3d 701, 637 N.E.2d 633 (1st Dist. 1994), (8) where a complaint states no cognizable cause of action against that party, Charles v Gore, 248 Ill.App.3d 441, 618 N.E. 2d 554 (1st Dist 1993), (9) where any litigant was represented before a court by a person/law firm that is prohibited by law to practice law in that jurisdiction, (10) when the judge is involved in a scheme of bribery (the Alemann cases, Bracey v Page 17 of 74

Warden, U.S. Supreme Court No. 96-6133 (June 9, 1997), (11) where a summons was not properly issued, (12) where service of process was not made pursuant to statute and Supreme Court Rules, Janove v Bacon, 6 Ill.2d 245, 249, 218 N.E.2d 706, 708 (1955), (13) where the statute is vague, People v Williams, 638 N.E.2d 207 (1st Dist. 1994), (14) when proper notice is not given to all parties by the movant, Wilson v. Moore, 13 Ill.App.3d 632, 301 N.E.2d 39 (1st Dist. 1973), (15) where an order/judgment is based on a void order/judgment, Austin v. Smith, 312 F.2d 337, 343 (1962);English v English, 72 Ill.App.3d 736, 393 N.E.2d 18 (1st Dist. 1979), or (16) where public policy is violated, Martin-Tregona v Roderick, 29 Ill.App.3d 553, 331 N.E.2d 100 (1st Dist. 1975). SUMMARY OF THE LAW OF VOIDS Before a court (judge) can proceed judicially, jurisdiction must be complete consisting of two opposing parties (not their attorneys - although attorneys can enter an appearance on behalf of a party, only the parties can testify and until the plaintiff testifies the court has no basis upon which to rule judicially), and the two halves of subject matter jurisdiction = the statutory or common law authority the action is brought under (the theory of indemnity) and the testimony of a competent fact witness regarding the injury (the cause of action). If there is a jurisdictional failing appearing on the face of the record, the matter is void, subject to vacation with damages, and can never be time barred. A question which naturally occurs: "If I vacate avoid judgment, can they just come back and try the case again?" Answer: A new suit must be filed and that can only be done if within the statute of limitations. "Lack of jurisdiction cannot be corrected by an order nunc pro tunc. The only proper office of a nunc pro tunc order is to correct a mistake in the records; it cannot be used to rewrite history." E.g., Transamerica Ins. Co. v. South, 975 F.2d 321, 325-26 (7th Cir. 1992); United States v. Daniels, 902 F.2d 1238, 1240 (7th Cir. 1990); King v. Ionization Int'l, Inc., 825 F.2d 1180, 1188 (7th Cir. 1987). And Central Laborer's Pension and Annuity Funds v. Griffee, 198 F.3d 642, 644(7th cir. 1999). The number of void judgments on the books in America's courthouses is so great, there is no practical way to estimate how many there are. IF EVERY VOID JUDGMENT WAS VACATED WITH DAMAGES, IT WOULD REPRESENT THE GREATEST SHIFT IN MATERIAL WEALTH IN THE HISTORY OF THE WORLD! 22 Reasons Simply Stated Research Links, Videos, Court Filings & Confessions Summary Home Interested in knowing more? _______________________________________________________________ - Helm Society School Announcing Week Long Classes! A word from Richard on the Helm Society School. Meet Richard Cornforth - Video ___________________________ Why pay debt collectors when you can make them pay you?! Page 18 of 74

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1. What is a Motion for a New Trial? 2. Grounds for the Motion 3. Procedural Aspects If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group. You may also find helpful information in our related articles on California Jury Trials; Bail Laws; Probation Laws; Mentally Disordered Offender "MDO" Commitment Hearings; and California Sentencing Hearings. 1. What is a Motion for a New Trial? Let's say that during the course of your trial...or shortly thereafter...you discover

jury misconduct, prosecutorial misconduct, an error of law by the court, insufficient evidence, the trial record or transcript has been lost or destroyed, and/or new evidence exists,

your California criminal defense lawyer will want to file a motion for a new trial. A motion for new trial is just that ...a request to have a new jury hear and decide your case.3 If granted, you begin the new trial with a completely clean slate, as if no previous trial had ever taken place.4 Let's take a closer look at these issues to gain a better understanding of the appropriate grounds for raising this type of motion. 2. Grounds for the Motion A motion for a new trial may only be granted if it is raised on one of the following grounds. In addition, it can only be granted if the grounds are clearly stated in your motion. This means that even if the judge identifies a different or additional reason why you should benefit from a new trial, he/she cannot raise or address that issue if you (or your attorney on your behalf) failed to do so.5 Jury misconduct The phrase "jury misconduct" can refer to a variety of issues.6 Perhaps the most common in connection with a California motion for a new trial is that the jury received information outside of the "record"...that is, outside of the admitted evidence. As Riverside criminal defense attorney Michael Scafiddi7 explains, "If the information was 'inherently and substantially likely' to influence at least one member of the jury in a prejudicial manner towards the defendant, the motion should be granted."8 But regardless of whether the jury

received outside information,

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engaged in improper deliberations (for example and, where applicable, the jury improperly discussed the fact that you chose not to testify), intentionally mislead the attorneys during jury selection, or participated in any other form of jury misconduct,

the critical issue is whether that misconduct led to prejudice against you. If it did not, it was essentially harmless, and the motion for a new trial will be denied. If it did, the motion should be granted.9 Prosecutorial misconduct If the prosecutor engages in prosecutorial misconduct...that is, misconduct to the point of prejudice...you are entitled to a new trial.10 "Prosecutorial misconduct" refers to the use of "deceptive or reprehensible methods to influence the jury".11 Examples of prosecutorial misconduct include (but are not limited to):

commenting on inadmissible evidence,12 intentionally eliciting inadmissible and/or prejudicial answers from witnesses,13 conducting an improper cross-examination of you or other defense witnesses,14 and appeals to passion or prejudice.15

But again, if the misconduct isn't prejudicial, a motion for a new trial will not be granted. As the California Supreme Court explains, "The ultimate question to be decided is: Had the prosecutor refrained from the misconduct, is it reasonably probable that a result more favorable to the defendant would have occurred?"16 If the answer is yes, you will most likely prevail on the motion. If the answer is no, the court will likely hold that the misconduct was harmless and deny you a new trial. An error of law by the court If the court is guilty of committing a legal error, such as

misdirecting the jury on a matter of law, or making an erroneous legal ruling,

you may be entitled to a new trial.17 But like the misconduct grounds described above, this error, too, must have impacted one of your substantial rights. If it has not, the motion will be denied.18 Along these same lines, if the court commits legal error by proceeding with a trial in your absence, you should prevail on a motion for a new trial.19 The exception to this rule is when you have 1. legally waived your presence, or 2. been removed from the courtroom for misconduct.20 It is important to note that a motion for a new trial may be granted even if you were only "mentally absent", as long as the condition was not voluntarily induced. Page 33 of 74

Example: A defendant who voluntarily takes drugs or who is in pain is not "mentally absent" for purposes of a motion for a new trial.21 An individual who becomes insane during the trial is.22 A basic rule of thumb is that as long as the defendant is coherent, lucid, and able to communicate with his/her attorney, he/she will be deemed mentally present for the trial.23 Insufficient evidence California criminal law gives the judge broad discretion when it comes to determining whether the evidence was sufficient to sustain a guilty verdict.24 If the court believes that the evidence was, in fact, insufficient to prove your guilt, the judge will grant your motion for a new trial...even if the jury has found you guilty. "Insufficient evidence" presents a unique remedy for a motion for a new trial. If the judge grants this motion, you will not actually receive a new trial, but instead will receive a dismissal of the charges. This is because once a judge grants a motion for a new trial on this ground, "double jeopardy" prevents the prosecution from retrying the case. If you were entitled to an acquittal...which you were if there was insufficient evidence to support a guilty verdict...the government does not get a "second bite at the apple". Newly discovered evidence If...following the trial...you discover new evidence that probably would result in a more favorable outcome for you if you were to retry the case, you may be entitled to a new trial.26 Factors that the court will consider before granting your California motion for a new trial include: 1. whether the evidence, and not merely its relevance is new, 2. whether the evidence is cumulative of what has previously been admitted, 3. whether the evidence would probably yield a different result during a retrial, 4. whether the defense could have reasonably been discovered or produced the evidence at trial, and 5. whether these facts are shown by the best evidence available under the circumstances.27 Loss or destruction of trial record or transcript Trial records and/or transcripts are preserved so that the attorneys and judges can properly analyze and review appeals. When those records are lost or destroyed...and you have therefore lost your ability to present an appeal...you may be entitled to a new trial.28 "The test is whether in light of all the circumstances it appears that the lost portion is 'substantial' in that it affects the ability of the reviewing court to conduct a meaningful review and the ability of the defendant to properly perfect his appeal."29 Other grounds In addition to the grounds we just reviewed, there are some additional justifications for securing a new trial. Referred to as "nonstatutory" grounds, these issues have been held by California courts as interfering with a defendant's right to a fair and impartial trial.30 Examples of nonstatutory grounds that justify a new trial include (but are not limited to):

ineffective assistance of counsel,31

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erroneous admission of evidence,32 the prosecutor's failure to disclose exculpatory evidence (that is, evidence favorable to the accused),33 and a material change in the law.34

3. Procedural Aspects In order to be valid, a California motion for a new trial must be submitted prior to

sentencing (which is usually pronounced during a California sentencing hearing), the judge's granting of probation, or the defendant's commitment as a narcotic addict, an insane person, or a mentally disordered sex offender.35

The judge must also rule on the motion prior to any of these events and within 20 days...up to 30 days with a proper extension...of a verdict in a felony case. The failure to do so will automatically result in a new trial.36 Once the court hears the motion, it has three options. It may either 1. grant the motion and order a new trial (which means that you may request to be released on bail under California bail laws37), 2. deny the motion and pronounce judgment on the verdict, or 3. modify the verdict to a lesser included offense of the convicted charge or reduce the degree of the charge.38 And even if the judge denies the motion, you can still win a new trial by filing the motion with the California Court of Appeals.39 Call us for help... For questions about a California "motion for a new trial", or to discuss your case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group. We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities. Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to law and motion in Nevada's criminal court system. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.40 For information about motions for a new trial in Nevada, law go to our article motions for a new trial in Nevada. Legal References:
1

California Penal Code 1181 PC -- Motion for a new trial. ("When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: 1. When the trial has been had in his absence except in cases where the trial may Page 35 of 74

lawfully proceed in his absence; 2. When the jury has received any evidence out of court, other than that resulting from a view of the premises, or of personal property; 3. When the jury has separated without leave of the court after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented; 4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors; 5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial, and when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury; 6. When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed; 7. When the verdict or finding is contrary to law or evidence, but in any case wherein authority is vested by statute in the trial court or jury to recommend or determine as a part of its verdict or finding the punishment to be imposed, the court may modify such verdict or finding by imposing the lesser punishment without granting or ordering a new trial, and this power shall extend to any court to which the case may be appealed; 8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable. 9. When the right to a phonographic report has not been waived, and when it is not possible to have a phonographic report of the trial transcribed by a stenographic reporter as provided by law or by rule because of the death or disability of a reporter who participated as a stenographic reporter at the trial or because of the loss or destruction, in whole or in substantial part, of the notes of such reporter, the trial court or a judge, thereof, or the reviewing court shall have power to set aside and vacate the judgment, order or decree from which an appeal has been taken or is to be taken and to order a new trial of the action or proceeding.") 2 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities. Please contact us at Shouse Law Group with any questions. 3 California Penal Code 1179 PC -- Definition. ("NEW TRIAL DEFINED. A new trial is a reexamination of the issue in the same Court, before another jury, after a verdict has been given.") 4 California Penal Code 1180 PC -- Effect of grant; parties; evidence; former verdict or finding. ("The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict or finding cannot be used or referred to, either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the accusatory pleading.") 5 People v. Masotti (2008) 163 Cal.App.4th 504, 508. ("Here, we will address whether the trial court could grant a new trial based on grounds not raised in the new trial motion, as it is a jurisdictional question of pure law on facts that are uncontested by the parties. A [California] motion for new trial may be granted only upon a ground raised in the motion. ( People v. Johnston (1940) 37 Cal.App.2d 606, 609, 100 P.2d 307; People v. Skoff (1933) 131 Cal.App. 235, 240, 21 P.2d 118.) "[A] defendant waives his right to a new trial upon all grounds included within the provisions of [section 1181] unless he specifies the grounds upon which he relies in his application therefor." ( Skoff, at p. 240, 21 P.2d 118.) Allowing a court to grant a new trial on a ground not raised by the moving party would be the equivalent of allowing the court to grant a new trial on its own motion, an act which the court is without authority to do.") Page 36 of 74

California Penal Code 1181 PC -- California motion for a new trial. ("("When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only...2. When the jury has received any evidence out of court, other than that resulting from a view of the premises, or of personal property; 3. When the jury has separated without leave of the court after retiring to deliberate upon their verdict, or been guilty of any misconduct by which a fair and due consideration of the case has been prevented; 4. When the verdict has been decided by lot, or by any means other than a fair expression of opinion on the part of all the jurors...") 7 Riverside criminal defense attorney Michael Scafiddi uses his former experience as an Ontario Police Officer to represent clients throughout the Inland Empire including San Bernardino, Riverside, Banning, Fontana, Joshua Tree, Barstow and Victorville. 8 In re Carpenter (1995) 9 Cal.4th 634, 653. ("To summarize, when misconduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. (E.g., People v. Holloway, supra, 50 Cal.3d at pp. 1110-1112; People v. Marshall, supra, 50 Cal.3d at pp. 951-952.) Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. (E.g., In re Hitchings, supra, 6 Cal.4th at p. 121.) The judgment must be set aside if the court finds prejudice under either test.") 9 See California Penal Code 1181 PC - California motion for a new trial, endnote 6, above. 10 See same. ("When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only... 5...when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury...") 11 People v. Strickland (1974) 11 Cal.3d 946, 955. 12 People v. Aragon (1957) 154 Cal.App.2d 646. Prosecutor referred to the defendant failing a lie detector test. 13 People v. Williams (1951) 104 Cal.App.2d 323. Prosecutor continuously tried to elicit hearsay and to illegally impeach his own witness. 14 People v. Chandler (1957) 152 Cal.App.2d Supp. 916. Prosecutor sought to elicit testimony about unrelated arrest and misdemeanor convictions. 15 People v. Stansbury (1993) 4 Cal.4th 1017. Improper for prosecutor to ask jury to view crime from eyes of murder victim, as appeal to sympathy for victim is out of place during an objective determination of guilt. 16 People v. Prysock (1982) 127 Cal.App.3d 972, 998. 17 California Penal Code 1181 PC -- California motion for a new trial. ("When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only...5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial...") 18 People v. Honeycutt (1946) 29 Cal.2d 52, 61-62. ("It is true that "In a case where there is a conflict in the instructions and the court erred in the giving of one or more of them, and where it is impossible to determine whether the jury followed the law as correctly or as incorrectly set before them, a new trial will be ordered if by such error the defendant's substantial rights were affected." (8 Cal.Jur. 608, p. 633; People v. Dail (1943), 22 Cal.2d 642, 653 [140 P.2d 828].) This principle of law will be vigilantly enforced.") 19 California Penal Code 1181 PC -- California motion for a new trial. ("When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the Page 37 of 74

following cases only: 1. When the trial has been had in his absence except in cases where the trial may lawfully proceed in his absence...") 20 California Penal Code 977 PC -- Presence of defendant; exception; presence of counsel. ("(b)(1) In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present, as provided by paragraph (2). If the accused agrees, the initial court appearance, arraignment, and plea may be by video, as provided by subdivision (c). (2) The accused may execute a written waiver of his or her right to be personally present, approved by his or her counsel, and the waiver shall be filed with the court. However, the court may specifically direct the defendant to be personally present at any particular proceeding or portion thereof.") See also California Penal Code 1043 PC -- Presence of defendant; felony cases; misdemeanor cases; procedure. ("(a) Except as otherwise provided in this section, the defendant in a felony case shall be personally present at the trial. (b) The absence of the defendant [FN1] in a felony case after the trial has commenced in his presence shall not prevent continuing the trial to, and including, the return of the verdict in any of the following cases: (1) Any case in which the defendant, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that the trial cannot be carried on with him in the courtroom. (2) Any prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent. (c) Any defendant who is absent from a trial pursuant to paragraph (1) of subdivision (b) may reclaim his right to be present at the trial as soon as he is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings. (d) Subdivisions (a) and (b) shall not limit the right of a defendant to waive his right to be present in accordance with Section 977. (e) If the defendant in a misdemeanor case fails to appear in person at the time set for trial or during the course of trial, the court shall proceed with the trial, unless good cause for a continuance exists, if the defendant has authorized his counsel to proceed in his absence pursuant to subdivision (a) of Section 977. If there is no authorization pursuant to subdivision (a) of Section 977 and if the defendant fails to appear in person at the time set for trial or during the course of trial, the court, in its discretion, may do one or more of the following, as it deems appropriate: (1) Continue the matter. (2) Order bail forfeited or revoke release on the defendant's own recognizance. (3) Issue a bench warrant. (4) Proceed with the trial if the court finds the defendant has absented himself voluntarily with full knowledge that the trial is to be held or is being held. Nothing herein shall limit the right of the court to order the defendant to be personally present at the trial for purposes of identification unless counsel stipulate to the issue of identity.") 21 People v. Cox (1978) 81 Cal.App.3d Supp. 1, 4. ("Where disabilities resulting in either physical or mental absence during the course of trial have been self-induced, the courts have characterized the resulting absences as voluntary and have been uniformly unsympathetic to defendant's due process claims.") 22 People v. Williams (1961) 194 Cal.App.2d 523 (California motion for new trial granted because defendant declared insane during trial). 23 See same at 525-526. (""The only reasonable interpretation of the above requirement that a defendant be present at every stage of a felony prosecution is that the accused person must be both physically and mentally present. Mere physical presence without mental realization of what was going on would obviously be of no value to the accused. A defendant in such condition would be unable to confer with or assist counsel, unable to testify, and without ability to understand the nature of the accusation or the mechanics or consequences of the trial. An interpretation of the rule as requiring only physical presence would lead to such an absurdity as the purported trial of an imbecile or an insane person without the least understanding of what was taking place in the courtroom. Only in the most unenlightened age could such a so-called trial be countenanced.") Page 38 of 74

24

People v. Robarge (1953) 41 Cal.2d 628, 633. ("While it is the exclusive province of the jury to find the facts, it is the duty of the trial court to see that this function is intelligently and justly performed, and in the exercise of its supervisory power over the verdict, the court, on [a California] motion for a new trial, should consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. ( People v. Knutte, 111 Cal. 453, 455 [44 P. 166]; People v. Lum Yit, 83 Cal. 130, 133-134 [23 P. 228]; Estate of Bainbridge, 169 Cal. 166, 168-170 [146 P. 427].)...In passing upon a motion for a new trial the judge has very broad discretion...") 25 People v. Trevino (1985) 39 Cal.3d 667 (overruled on other grounds). 26 California Penal Code 1181 PC -- California motion for a new trial. ("When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only...8. When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial. When a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given, and if time is required by the defendant to procure such affidavits, the court may postpone the hearing of the motion for such length of time as, under all circumstances of the case, may seem reasonable.") 27 People v. Turner (1994) 8 Cal.4th 137, 212 (overruled on other grounds). 28 California Penal Code 1181 PC -- Motion for a new trial. ("When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only...9. When the right to a phonographic report has not been waived, and when it is not possible to have a phonographic report of the trial transcribed by a stenographic reporter as provided by law or by rule because of the death or disability of a reporter who participated as a stenographic reporter at the trial or because of the loss or destruction, in whole or in substantial part, of the notes of such reporter, the trial court or a judge, thereof, or the reviewing court shall have power to set aside and vacate the judgment, order or decree from which an appeal has been taken or is to be taken and to order a new trial of the action or proceeding.") 29 People v. Holloway (1990) 50 Cal.3d 1098, 1116 (overruled on other grounds). 30 People v. Davis (1973) 31 Cal.App.3d 106, 110-111. ("The power to grant a new trial on such nonstatutory grounds obviously is derived from the trial court's constitutional duty to insure an accused a fair trial. (See In re Saunders, 2 Cal.3d 1033, 1041 [88 Cal. Rptr. 633, 472 P.2d 921].) As said in People v. Lyons, 47 Cal.2d 311, 319 [303 P.2d 329], "It is axiomatic that when an accused is denied that fair and impartial trial guaranteed by law, such procedure amounts to a denial of due process of law ...." And, of course, a constitutional duty may not be abridged by statute. In the instant case the trial court in its discretion reasonably concluded, on the substantial showing made, that without fault on his part the defendant had not received a fair trial. In passing on a motion for a new trial the trial court has very broad discretion...") 31 People v. Cornwell (2005) 37 Cal.4th 50 (overruled on other grounds). 32 People v. Albarran (2007) 149 Cal.App.4th 214. 33 Merrill v. Superior Court (1994) 27 Cal.App.4th 1586. 34 People v. DeLouize (2004) 32 Cal.4th 1223. 35 California Penal Code 1182 PC -- Application; time; entry of order. ("The application for a new trial must be made and determined before judgment, the making of an order granting probation, the commitment of a defendant for observation as a mentally disordered sex offender, or the commitment of a defendant for narcotics addiction or insanity, whichever first occurs, and the order granting or denying the application shall be immediately entered by the clerk in the minutes.") 36 California Penal Code 1191 PC -- Appointment of time for pronouncing judgment; reference to probation officer or placement in diagnostic facility; extension of time. ("In a felony case, after a plea, finding, or verdict of guilty, or after a finding or verdict against the defendant on a plea of a former Page 39 of 74

conviction or acquittal, or once in jeopardy, the court shall appoint a time for pronouncing judgment, which shall be within 20 judicial days after the verdict, finding, or plea of guilty, during which time the court shall refer the case to the probation officer for a report if eligible for probation and pursuant to Section 1203. However, the court may extend the time not more than 10 days for the purpose of hearing or determining any motion for a new trial, or in arrest of judgment, and may further extend the time until the probation officer's report is received and until any proceedings for granting or denying probation have been disposed of. If, in the opinion of the court, there is a reasonable ground for believing a defendant insane, the court may extend the time for pronouncing sentence until the question of insanity has been heard and determined, as provided in this code....") See also California Penal Code 1202 PC -- Pronouncement of judgment; California motion for a new trial for failure to pronounce judgment at proper time, for refusal to hear motion for new trial, or for neglect to determine motion within time. ("If no sufficient cause is alleged or appears to the court at the time fixed for pronouncing judgment, as provided in Section 1191, why judgment should not be pronounced, it shall thereupon be rendered; and if not rendered or pronounced within the time so fixed or to which it is continued under the provisions of Section 1191, then the defendant shall be entitled to a new trial. If the court shall refuse to hear a defendant's motion for a new trial or when made shall neglect to determine such motion before pronouncing judgment or the making of an order granting probation, then the defendant shall be entitled to a new trial.") 37 In re Weiner (1995) 32 Cal.App.4th 441, 444. ("After conviction of a noncapital offense, a defendant who has appealed may request the trial court to release him or her on bail. ( 1272.) Bail is a matter of right in misdemeanor cases and cases where only a fine has been imposed. ( Ibid.) In all other cases, release on bail is subject to court discretion. ( Ibid.) However, the court shall order release on bail if the appeal is not for the purpose of delay and raises a substantial legal question that, if decided in the defendant's favor, will likely result in reversal and the defendant demonstrates by clear and convincing evidence both that he or she does not pose a danger to other persons and is unlikely to flee. ( 1272.1.) Upon application for release on bail pending appeal, the trial court must consider the application on its merits.") 38 California Penal Code 1181 PC -- California motion for a new trial. ("When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only...6. When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed...") 39 California Penal Code 1237 PC -- Appeal by defendant. ("An appeal may be taken by the defendant: (a) From a final judgment of conviction except as provided in Section 1237.1 and Section 1237.5. A sentence, an order granting probation, or the commitment of a defendant for insanity, the indeterminate commitment of a defendant as a mentally disordered sex offender, or the commitment of a defendant for controlled substance addiction shall be deemed to be a final judgment within the meaning of this section. Upon appeal from a final judgment the court may review any order denying a motion for a new trial.") See also California Penal Code 1466 PC -- Judgments and orders appealable; people; defendant. ("An appeal may be taken from a judgment or order, in an infraction or misdemeanor case, to the appellate division of the superior court of the county in which the court from which the appeal is taken is located, in the following cases...(2) By the defendant: (A) From a final judgment of conviction. A sentence, an order granting probation, a conviction in a case in which before final judgment the defendant is committed for insanity or is given an indeterminate commitment as a mentally disordered sex offender, or the conviction of a defendant committed for controlled substance addiction shall be deemed to be a final judgment within the meaning of this section. Upon appeal from a final judgment or an order Page 40 of 74

granting probation the court may review any order denying a motion for a new trial. (B) From any order made after judgment affecting his or her substantial rights.") 40 Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's criminal court system. Our Nevada law offices are located in Reno and Las Vegas. search site bookmark print page link to us like us follow us share article translate

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The California Criminal Appeals Process Explained..... Appeals Process 3 Strikes Appeals California Appellate Project Chances of Winning Federal Appeals Felony Appeals Grounds for Appeal Habeaus Corpus Misdemeanor Appeals Motion for New Trial Role of the Appeals Lawyer Timeframes & Deadlines Our Criminal Appeals Attorneys In the News..... Call Us for Help | 888.327.4652 If you or a loved one faces misdemeanor or felony charges, contact our California criminal defense attorneys for help. We'd be glad to meet with you for a free consultation at one of our local criminal law offices in Los Angeles, San Francisco, Van Nuys, Pasadena, Long Beach, Orange County, Rancho Cucamonga, San Bernardino or Riverside. Client Reviews A Powerful, Effective Advocate to Have in Your Corner In my time of need I called on Neil Shouse and his law firm. It was one of the best decisions I've made in my life. Not only did he step up to assist me, he went the extra mile in every sense of the word. I found Neil to be honest, professional, and tireless in his efforts on my behalf. - Jay, a DUI client Burbank Criminal Attorneys Burbank Office: 3500 W Olive Ave 3rd Floor Page 42 of 74

Burbank, CA 91505 (818) 904-5900 Glendale Criminal Attorneys Glendale Office: 450 N Brand Blvd 6th Floor Glendale, CA 91203 (818) 904-5900 Las Vegas Criminal Attorneys Las Vegas Office: 2300 W. Sahara Ave. Suite 450 Las Vegas, NV 89102 (702) 333-3673 Long Beach Criminal Attorneys Long Beach Office: 444 W Ocean Blvd Suite 800 Long Beach, CA 90802 (562) 633-8155 Los Angeles Criminal Attorneys Los Angeles Office: 5670 Wilshire Blvd Suite 1350 Los Angeles, CA 90036 (310) 385-7895 Newport Beach Criminal Attorneys Newport Beach Office: 4000 MacArthur Blvd Suite 900 Newport Beach, CA 92660 (949) 644-0600 Pasadena Criminal Attorneys Pasadena Office: 1055 E Colorado Blvd 9th Floor Pasadena, CA 91101 (626) 345-9200 Rancho Cucamunga Attorneys Rancho Cucamonga Office: 3200 Guasti Rd Suite 100 Ontario, CA 91761 (909) 483-2814 Riverside Criminal Attorneys Riverside Office: 4480 Main St Riverside, CA 92501 (951) 734-1600 Page 43 of 74

Sacramento Criminal Attorneys Sacramento Office: 455 Capitol Mall Suite 604 Sacramento, CA 95814 (916) 391-6500 San Bernardino Criminal Attorneys San Bernardino Office: 432 N Arrowhead Ave San Bernardino, CA 92401 (909) 863-5500 San Diego Criminal Attorneys San Diego Office: 3111 Camino del Rio Norte, Suite 400 San Diego, CA 92116 (619) 275-6100 San Francisco Criminal Attorneys San Francisco Office: 425 Market Street Suite 2200 San Francisco, CA 94105 (415) 333-0300 San Jose Criminal Attorneys San Jose Office: 95 S Market St Suite 300 San Jose, CA 94111 (408) 347-1200 Santa Ana Criminal Attorneys Santa Ana Office: 500 N State College Blvd Suite 1100 Orange, CA 92868 (714) 288-9455 Van Nuys Criminal Attorneys Van Nuys Office: 14500 Roscoe Blvd 4th Floor Van Nuys, CA 91402 (818) 904-5900 Ventura Criminal Attorneys Ventura Office: 2625 Townsgate Rd Suite 330 Westlake Village, CA 91361 (805) 648-1680 If you'd like further assistance... Page 44 of 74

Join us to discuss your DUI case at any of our local offices: You can also contact us 24/7 at 888.327.4652 for a free consultation West Covina Criminal Attorneys West Covina Office: 100 N Barranca Ave Suite 700 West Covina, CA 91791 (626) 345-9200 home attorneys locations crimes a to z dui help center interactive faq Copyright 2013 Shouse Law Group - Southern California Criminal Defense Attorneys - Los Angeles Defense Lawyers - All rights reserved. San Bernardino Motion for New Trial Attorney Disclaimer: The insufficient evidence, jury misconduct, erroneous legal ruling, or other legal defense information presented at this site should not be considered formal legal advice nor the formation of a lawyer or attorney client relationship. Our criminal defense law firm serves the following communities, among others: Los Angeles County, Orange County, Rancho Cucamonga, Riverside County, San Bernardino and Santa Barbara. 2013 Shouse Law Group. All rights reserved. We employ Copyscape Premium. Any republishing of copyrighted material without the express written consent of the publisher is prohibited. Such plagiarism is illegal, constitutes professional misconduct and constitutes an infringement of the Digital Millennium Copyright Act. Sitemap | Privacy Policy | Los Angeles County criminal defense lawyers | Orange County criminal defense attorneys | Ventura County criminal defense attorneys San Bernardino County criminal defense lawyers | Las Vegas Nevada criminal defense lawyers | Neil Shouse

#131, Drano Series

Amended Motion to

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Amended Motion to Dismiss on Grounds of Void Judgment Dorothy LaFortune's home was foreclosed and a Writ of Possession issued. LaFortune contends that the foreclosure and writ were unlawful. In Barb's opinion, the bureaucrats of the City of Biddeford goofed and LaFortune was not trespassing. Where the foreclosure and writ were unlawful, the charge of criminal trespass must be dismissed. STATE OF MAINE SUPERIOR COURT York, ss. Location: Alfred Docket No. CR-03-1979 State of Maine Plaintiff v. Dorothy LaFortune Defendant _______________________________________________ AMENDED MOTION TO DISMISS ON GROUNDS OF WHERE JUDGMENT OF CIVIL COURT WAS VOID ON JURISDICTIONAL GROUNDS, DEFENDANT WAS OWNER OF PROPERTY AND COULD NOT TRESPASS, MAKING DISMISSAL MANDATORY BY OPERATION OF LAW Now comes Defendant Dorothy LaFortune ["LaFortune"] and moves to dismiss the criminal complaint for trespass in this case.\1/ FN1 That statute reads, "A person is guilty of criminal trespass if, knowing that that person is not licensed or privileged to do so, that person . . . [r]emains in any place in defiance of a lawful order to leave that was personally communicated to that person by the owner or another authorized person." 17A M.R.S.A. 167; 402(1)(D). As grounds for her opposition, LaFortune states where judgment of civil court was void on jurisdictional grounds, defendant was owner of property and could not trespass, making dismissal mandatory by operation of law. ARGUMENTS 1. District Court does not have jurisdiction over the determination of title, making the order void ab initio. Certain events are undisputed. For instance, on 10 April 2002, the City of Biddeford published the pending sale on 5 June 2002 of its tax liens on LaFortunes Graham Street property. The newspaper advertisement set forth 5 June 2002 as the date on which the sealed bids would be opened, reviewed, and awarded. On 22 May 2002, without notice of any kind without actual notice to LaFortune or notice by publication -- as required by 36 M.R.S.A. 943 and Page 46 of 74

notwithstanding the publicly announced date for bidding, City Manager Bruce Benway ["Benway"] and Tax Collector Gayle Doyon ["Doyon"] prematurely both conducted a sealed-bid sale of the tax liens on the subject property and opened the bids. On 4 June 2002, the Biddeford City Council voted to accept a bid from Tim Q. Ly ["Ly"] and authorized the purchase by Tim Q. Ly of the subject property. On 21 June 2002, the City of Biddeford, through Benway and Doyon, delivered a Municipal Quitclaim Deed to Ly "to release the City of Biddefords interest, if any, arising from matured tax liens dated . . . and recorded. . . . Meaning and intending to convey to the Grantee, the Grantors tax-acquired interest." The consideration given by Ly in exchange for the deed was $80,000, a sum more than $50,000 in excess of the amount of the Citys monetary interest in the liens.\2/ FN2 It has never been revealed to LaFortune where the more than $50,000-plus surplus went. The statutes are specific as to the procedure to be followed, but they were not followed. Subsequent to the City delivering of the deed to Ly, LaFortunes only recourse was to challenge the validity of both the tax taking and the sale of the subject property, by initiating suit in York Superior Court against the City of Biddeford.\3/ This her prior counsel did on or around 24 June 2002. The rule, however, was not strictly followed by that court: she was denied a jury trial. The appeal of that case, which predated Lys FED action against her by about a month, is pending. Amongst the issues in her appeal is that she was not granted a full and fair hearing either before a bench or a jury in her case against the City. FN3 LaFortune v. City of Biddeford, York Superior Court, Docket #AP-02-036 (filed 6/24/02) (Brennan, J.), affd __ ME ___ (SJC, [YOR-04-197] 2004). During or around the week between 30 July 2002 and 7 August 2002,\4/ Tim Q. Ly, seeking possession of the subject property, initiated his forcible entry and detainer ["FED"] action against LaFortune in York District Court,\5/ which had "exclusive original jurisdiction of all actions of forcible entry and detainer to recover the possession of real property." Bicknell Manufacturing Company v. Bennett, 417 A.2d 414, 416 (Me. 1980). FN4 There appears to be a discrepancy in the records. FN5 See note 3, supra. The forcible entry and detainer statute, 14 M.R.S.A. 6001 et seq., under which Ly sued, applies to landlords and tenants. To be applicable to the case between Ly and LaFortune, Ly had to be deemed a landlord and LaFortune, a tenant. The definitions of tenant in 6001(1) [1995, c. 372, 1 (amd)] do not include a person such as LaFortune and process may not be maintained against her; e.g., LaFortune was not a disseisor who has not acquired any claim by possession and improvement; LaFortune was not a tenant holding under a written lease or contract or person holding under such a tenant; LaFortune was not a tenant where the occupancy of the premises is incidental to the employment of a tenant; LaFortune was not, at the expiration or forfeiture of the term, without notice, if commenced within 7 days from the expiration or forfeiture of the term, a tenant at will, whose tenancy has been terminated as provided in Page 47 of 74

section 6002; and LaFortune was not a mobile home owner and tenant pursuant to Title 10, chapter 951, subchapter VI. LaFortune was not one of multiple occupants of an apartment or residence whose name appeared on a lease or rental agreement for the premises or whose tenancy Ly acknowledged by acceptance of rent or otherwise. A defendant such as LaFortune in a FED action may find relief in Rule 76C(d) of the Maine Rules of Civil Procedure:\6/ FN6 Section 6006 of Title 36 had been repealed around 1995 or 1996. (This is the statute counsel did not realize had been repealed, and wrote about in her original opposition. Not all, but some of the provisions were available in the rules as discussed below.). And Rule 73(b), the removal statute, had been abrogated, but Rules 76C and 76D took its place functionally. "Rule 76C(d) carries forward provisions of the prior rule permitting removal by either party if title to real estate is put in issue by the pleading. An exception is made for the statutory provision concerning forcible entry and detainer discussed in connection with subdivision (a) above." RULE 76C. REMOVAL TO SUPERIOR COURT FOR JURY TRIAL, Advisory Committees Notes. 1991, at 281.\7/\8/\9/ FN7 Rule 76D allows removal of a FED action for appeal from District to Superior court when the defendant pleads title. FN8 Under Rule 80D(i), removal is permitted in FED actions "only in accordance with the statutory provision for entry of the action in the Superior Court by the plaintiff when the defendant pleads title." RULE 76C. REMOVAL TO SUPERIOR COURT FOR JURY TRIAL, Advisory Committees Notes. 1991, at 280. FN9 Rule 80D(i) conflicts with Rule 76C(d) in that Rule 80D(i) prohibits removal of FED actions, except as provided by statute . . . and 76C(d) is a Rule, not a statute. Rule 80D(g), however, not only prohibited LaFortune from filing a counterclaim against Ly, it also prohibited her from joining Lys forcible entry and detainer ["FED"] action with her action against the City in Superior Court. Her existing suit against the City in Superior Court regarding title to her property should have alerted the District Court judge to put a stay on the FED action, but he did not do so. Nevertheless, where there had beenand still has been--no final resolution of LaFortune v. City of Biddeford, the issuance of the writ of possession by the district court against her was premature and unlawful: it deprived her of her constitutional rights to due process and equal protection and made meaningless her First Amendment right to petition as well her right to appeal under Rule 76C(d) or 80D. See Rule 80D, FORCIBLE ENTRY AND DETAINER, Advisory Committees Notes, 1990, at 338-339. The writ of possession should have been precluded. Id. at 339. Specifically, under Town of Pownal v. Anderson, infra, LaFortune was a homeowner who was deprived of rights protected by statutory and common law: Page 48 of 74

A forcible entry and detainer action is "a summary proceeding to decide who is entitled to the immediate possession of land." Tozier v. Tozier, 437 A.2d 645, 647 (Me. 1981) (quoting Bicknell Mfg. Co. v. Bennett, 417 A.2d 414, 421 (Me. 1980)). In this matter, the determination of title is dispositive of the right to immediate possession. If the Town failed to perfect its title through the tax lien process, the Andersons remain entitled to immediate possession of the property. If, on the other hand, the Town properly obtained title through the lien process, the Town is entitled to immediate possession of the property. Town of Pownal v. Anderson, 1999 ME 70, 5, __ A.2d __ (Docket #Cum-98-644) (1999) (emphasis supplied). This area of law requires careful attention to statutory requirements by both the Town and the taxpayer. Just as the taxpayer may lose her property if she fails to be vigilant in complying with the requirements, see Fitzgerald v. City of Bangor, 1999 ME 50, 17, __ A.2d __, so must the Town strictly adhere to its requirements. See Dubois v. City of Saco, 645 A.2d 1125, 1127 (Me. 1994); Blaney v. Inhabitants of Shapleigh, 455 A.2d 1381, 1387 (Me. 1983); Arsenault v. Inhabitants of Roxbury, 275 A.2d 598, 599-600 (Me. 1971). Only if departure from the statutory requirements is explicitly allowed by statute will such departure be tolerated. See Avco Delta Fin. Corp. v. Town of Whitefield, 295 A.2d 921, 924 (Me. 1972). Town of Pownal v. Anderson, 1999 ME 70, 14 (emphasis supplied). Missing from the chronology were events that had to occur but seem not to have occurred: 2. Notice to LaFortune between 30 and 45 days prior to the scheduled sale date. 36 M.R.S.A. 943. This is to give notice of the approach of the end of the redemption period; and 3. The recording of a Notice of Impending Automatic Foreclosure of the last few recorded municipal liens. Without Notice of Impending Automatic Foreclosure in place in the Registry, the City was unable to lawfully foreclose on LaFortunes property. In the civil cases, LaFortune argued that one significant event occurred which should not have occurred, and that was the delivery of the deed to Tim Q Ly before her redemption period under 36 M.R.S.A. 1076 had expired.\10/ In Ly v. LaFortune, 2003 Maine 119, the SJC wrote that because the City had chosen to foreclose under 36 M.R.S.A. 943, the alternative process in 1076 was inapplicable. The SJC, however, had no citation for that proposition (because it is an issue of first impression) and the wording in neither statute supports that proposition. LaFortune contends that in 943, the redemption period to which the statute refers is the 18-month redemption period prior to the "Impending Automatic Foreclosure" and that in 1076, the redemption period to which the statute refers is the 2-year redemption period that after the sale to a purchaser of the property sold by the City.\11/ They are not alternatives. The SJC erred.\12/ The provisions in 943 and 1076 refer explicitly to two totally different periods. Indeed, it is reasonable to conclude from the explicit language of those sections that the Maine legislature was giving a homeowner an opportunity both (1) to challenge the City-imposed real-estate tax and to defend the nonpayment thereof on grounds of disability or poverty (which was denied LaFortune)\13/ and (2) to challenge the sale of the property to a third party by the City. Page 49 of 74

FN10 Section 1076 is entitled "Purchaser to notify mortgagee of sale; right of redemption." FN11 LaFortune was without counsel for that appeal. The decision by the SJC on that point, she contends, was unconstitutional on the well-settled grounds that every word in a statute must be given plain meaning . . . and they were not. FN12 LaFortune contends that the Maine SJC committed reversible error and deprived her of her constitutional property rights. Indeed, had LaFortune had the assistance of effective counsel in the Ly v. LaFortune case, she might have sought certification for the issue raised by the Maine SJC to the United States Supreme Court. After all, fundamental property rights were being attacked and she was being deprived of them. FN13 LaFortune has a letter [Figure 3 in Exhibit B, infra at 15] from the City telling her that abatement was not available to her, despite the language in 943 and 943-A. If you cannot pay the property taxes you owe please contact me to discuss this notice. Municipal Treasurer. [1985, c. 364, 1 (new).] 36 M.R.S.A. 943 Beginning with taxes that are assessed after April 1, 1985, each notice under section 942 and 1281 which is sent by a municipality or the State Tax Assessor to a person against whom taxes have been assessed, shall contain a statement that that person may apply for an abatement of taxes if the person cannot pay the taxes that have been assessed because of poverty or infirmity. [1985, c. 364, 2 (new).] 36 M.R.S.A. 943-A. Application for abatement In Ly v. LaFortune, LaFortune also argued that there were many deficiencies in the tax-lien process, and Biddeford District Court Justice Douglas so found: Although both parties submitted copies of various official records relating to the citys efforts to foreclose on the instant property, and the city manager was called to testify on the subject, the city itself was not a party to this action. The court, therefore, may not have had the benefit of fully developed record with regard to all actions taken by the city in connection with the foreclosure process in issue. Based solely on the record presented, it appears there may have been irregularitiesin the statutory foreclosure process for some of the years in question. However, as is discussed above, the city correctly followed the process with respect to the taxes committed on the property in August 1998. The citys compliance with statutory foreclosure requirements in connection with the August 1998 tax commitment, coupled with Defendants awareness of, and responsibility for, her unpaid taxes, is sufficient to satisfy any due process safeguards, notwithstanding the fact that there may have been technical deficiencies in the foreclosure processes in other years. Ly v. LaFortune, Biddeford District Court Docket #SA-02-311, slip op. at 2-3 n. 1 (Douglas, J.) [emphasis supplied].\14/\15/ FN14 There were technical deficiencies not in the years prior to and after 1998 through 2003, but also in 1998. Assuming arguendo that Justice Douglas was correct, doing it correctly only one year out of a decade does not, however, constitute a preponderance of the evidence in the Citys or Lys favor in the civil cases. It certainly does create reasonable doubt in this criminal case as to whether the Ly order that the State wants to have admitted without challenge is a lawful order. It certainly does create reasonable doubt in this criminal case as to whether LaFortune was trespassing on the Graham Street property on the Page 50 of 74

day a SWAT team was sent in to forcibly remove her from her home. FN15 According to the Registry, nothing happened regarding the property in August 1998. In fact the deficiencies and/or irregularities were continuous for years. See Exhibit A, attached hereto this opposition to the Motion in Limine. In Exhibit A, LaFortune has summarized the deficiencies and/or irregularities found after a title search was performed for purposes of this opposition. In addition to the bold-faced comments, another of Justice Douglass comments stands out: "[T]he city correctly followed the process with respect to the taxes committed on the property in August 1998." In the Title Search which LaFortune caused to be conducted, there were two documents recorded by the City: Notice of Impending Automatic Foreclosure (943) undated notary signature but recorded on 02/02/98 (referring to #22 above) in Book 8622, Page 006, setting a foreclosure date of 12/29/97. Notice of Impending Automatic Foreclosure in name of John G. DellaJacova dated 04/09/98 (referring to #23 above) in Book 8732, Page 069, setting a foreclosure date of 03/27/98. The first had an undated notary signature, which has been forgiven in one case, but both Notices of Impending Automatic Foreclosure were filed AFTER the scheduled foreclosure dates. Under Town of Pownal, supra, that extreme noncompliance would result in the title being left in LaFortunes name, supra. Judge Douglas also did not take into consideration the provisions of Maine District Court Civil Rule 76C(d) or 80D, by which LaFortune was entitled to have her claim that she had title to the subject property fully litigated in Superior Court. Where LaFortune made title the only issue to be decided, the FED case came "within the cognizance of the Superior Court. Bicknell, 417 A.2d at 416. Clearly, 4. given the noncompliance by Ly and the District Court with the relevant statutes, 5. given the multiple acknowledgements by the District Court judge in footnote 1 of his memorandum and order that there were deficiencies and iregularities in the process followed by the City, and 6. given the explicit pronouncement by the Court in Town of Pownal v. Anderson, supra,that if the Town failed to perfect its title through the tax lien process, the defendants remained entitled to immediate possession of the property and that any departure without explicit statutory permission -- from the statutory requirements will not be tolerated, the District Court did not have jurisdiction over the determination of title, making the court order void ab initio and unavailable for use under the doctrine of collateral estoppel, or issue preclusion. Thus Biddeford District Court did not have the authority to determine which of the parties had superior title [Bicknell, at 415-416]. "Forcible entry and detainer is not a plenary action to quiet title to land but is, rather, a summary proceeding to decide who is entitled to the immediate possession of land." Bicknell, at 421, citing Throumoulos v. Bernier, 143 Me. 286, 61 A.2d 681 (1948). But if [a court] act without authority, its judgments and orders are nullities; they are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal, in opposition to them; they constitute no justification, and all persons concerned in executing such judgments, or sentences, are considered in law as trespassers.' Page 51 of 74

Williamson v. Berry, 49 U.S. (8 How.) 495, 541 (1850). When the court lacks jurisdiction, "the court has no authority to reach merits" and should then dismiss the action. Melo v. U.S., 505 F.2d 1026, 1030 (8th Cir. 1974). "Where there is no jurisdiction over the subject matter, there is, as well, no discretion to ignore that lack of jurisdiction. See F.R.Civ.P. 12(h)(3)."\16/Joyce v. U.S., 474 F.2d 215, 219 (3rd Cir. 1973). FN16 F.R.Civ.P. 12(h)(3): "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." . . . whenever the right to property is claimed to have been changed under a judgment or decree by a court, and it is set up as a defence in another court, the jurisdiction of the former may be inquired into. The rule is, that where a limited tribunal takes upon itself to exercise a jurisdiction which does not belong to it, its decision amounts to nothing, and does not create a necessity for an appeal. Attorney-General v. Lord Hotham, Turn. & Russ., 219. Williamson v. Berry, 49 U.S. (8 How.) 495, 543 (1850) [emphasis supplied]. After the District Court issued its void judgment and/or unlawful order, LaFortune appealed the ruling in Ly v. LaFortune to the Superior Court. That court used M.R.Civ.P. 80D(f)(5) as grounds to dismiss the appeal, despite Justice Douglass acknowledgement of the Citys noncompliance with the statutes, i.e., of the existing "deficiencies" and "irregularities" in the process. LaFortune had been denied a full and fair adjudication to which she was entitled. Restatement (Second) of Judgments, 27-29 and the First Circuits Levasseur, 699 F. Supp. at 981. On 15 May 2003, Ly sought a Writ of Possession, and on 3 June 2003, over LaFortunes opposition, the court issued the first Writ of Possession to Ly. Thereafter, diverse pleadings, including Motions to Stay, were filed in diverse courts. During June 2003, LaFortune appealed the ruling of the York Superior Court in Ly v. LaFortune to the Maine Supreme Judicial Court. Superior Court had also denied Lafortune's motion for a stay and issued a Writ of Possession, but her request for a stay of the Writ of Possession was granted by a single justice of the SJC.Ly v. LaFortune, 2003 Me. 119, 3. SJC Justice Levy then affirmed the lower-court decisions on 14 October 2003. 2003 Me. 119. On 4 November 2003, a second Writ of Possession issued from Biddeford District Court giving the sheriffs the authority to remove LaFortune from her Graham Street property. On 12 November 2003, Lys Writ of Possession was again served on LaFortune. On 14 November 2003, Ly sought the assistance of the Biddeford police to enforce the writ and on 19 November 2003, a SWAT time forcibly removed LaFortune from her home on Graham Street. On or around 20 July 2004, LaFortune appealed the ruling of the York Superior Court in LaFortune v. City of Biddeford to the Maine Supreme Judicial Court, which has not yet disposed of the case. At no time since 24 June 2002 has LaFortune been given an opportunity to present evidence of her claims and defenses in her action against the Biddeford. At no time since 24 June 2002, when she filed LaFortune v. City of Biddeford, has LaFortune been given the opportunity in York Superior Court to have a "a Page 52 of 74

trial bearing on the aspects of the merits of the action," that is, to determine whether she had superior title to the real property on Graham Street. LaFortune was similarly precluded in Ly v. LaFortune from defending her title during the trial in Biddeford District Court. In sum, it is both undisputed that LaFortune has been at all times denied a full and fair trial on her claim of title, and indisputable that the judgment in Ly v. LaFortune issued before her claim of title was fully litigated, thereby voiding the judgment, if not making it unlawful. Where two of the several basic requisites for the invocation of the doctrine of collateral estoppel no full and fair trial and the lack of a valid judgment -- are absent, the doctrine of collateral estoppel is inapplicable. Conclusion WHEREFORE, LaFortune prays this motion be ALLOWED. Respectfully submitted, Dorothy LaFortune, By her attorneys, _____________________________________ Barbara C. Johnson, Esq., Mass. B.B.O. 6 Appletree Lane Andover, MA 01810-4102 978-474-0833 Local Counsel, _________________________________________ Thomas A. Grossman, Esq., Maine B.B.O. Grossman & Grossman, PC 40 Babcock Street P.O. Box 2011 Brookline, MA 02446 617-975-0005 16 September 2004 CERTIFICATE OF SERVICE I, Barbara C. Johnson, hereby certify that I caused to be emailed on 16 September 2004 and served by first-class mail on 16 September 2004 a true and accurate copy of this document on District Attorney Mark W. Lawrence, York County Courthouse, P.O. Box 399, 45 Kennebunk Road, Alfred, Maine 040020399. __________________________________ Barbara C. Johnson 16 September 2004 EXHIBIT A SUMMARY OF TITLE SEARCH (A RUNDOWN) 7. The Judgment of Foreclosure and Sale, BID-94-CV-323, Saco and Biddeford Savings Bank v. Dorothy Ruel, dated 2/13/95 and recorded at Book 7390, page 271, on 4/21/95, but it appears not to have shown up at Registry. 8. Two Notices of Impending Automatic 943 Foreclosures [Book 8622, Page 006, setting a foreclosure date of 12/29/97; and Book 9240, Page 327, Page 53 of 74

setting a foreclosure date a year later, of 12/30/98] had undated notary signatures.\17/ FN17 Since 2000, a jurat of a notary must be dated; otherwise the jurat is defective. 32 M.R.S.A. 352(2), as amended [2001, c. 275, Pt. B, 1 (amd).]: A record of a deed or other instrument, . . . made prior to January 1, 2000 for the conveyance of real property, or of any interest in the property, and recorded in the registry of deeds of the county in which the real property is located is valid and enforceable even if: (2) [t]he records in relating to the title to real property fail to disclose the date when received for record or the records have not been signed by the register of deeds or other duly authorized recording officer for the county. In other jurisdictions, too, the date is required in the jurat of notary public. Com. v. Reynolds, 36 Mass.App.Ct. 963, 635 N.E.2d 254, 255 (1994) ("As to the jurat of a notary public . . . within Massachusetts, . . . the act of affixing one's signature and writing in the date on which one's commission expires is formality adequate to the occasion"). closures were filed AFTER the scheduled foreclosure date: e.g., notices filed in Book 8622, Page 006; Book 9240, Page 327; Book 8732, Page 069; Book 9825, Page 163; and Book 9825, Page 237.\18/ Where Notice of Impending Automatic Foreclosure is filed AFTER the scheduled date for sale, the Notice is not notice. FN18 The Notices included claims by the City that demands for payment were made of LaFortune, but none of the Notices included the dates of demands. Given the lack of safeguards of a homeowners fundamental right to own real property, the statute is likely unconstitutional. discharged in Book 11771, at both Page 292 and Page 293. Notices of Foreclosure (those at Book 9825, Page 163, and Book 9825, Page 2370) referred were not recorded. (a) recorded in Book 9825, Page 163, (b) pursuant to 14 M.R.S.A. 943, and (c) of a non-existent or, at the very least, un-recorded Municipal Lien Certificate for Sewer arrearages has no effect, given that it is not a notice pursuant to the applicable statute, namely, 38 M.R.S.A. 1208. pursuant to 14 M.R.S.A. 942, 943 for Sewer arrearages has no effect, given that it is not the lien that is required under 38 M.R.S.A. 1208, which sets forth explicitly the lien to be used for sewer arrearages. in Book 10060, Page 125, pursuant to 14 M.R.S.A. 942, 943 for Sewer arrearages has no effect, given that it is not the lien that is required under 38 M.R.S.A. 1208, which sets forth explicitly the lien to be used for sewer arrearages. ecording of Notice of Impending Automatic Foreclosure on the Municipal Lien Certificate recorded on 6/10/92 in Book 11695, Page 199. It was this foreclosure which culminated in the alleged sale of LaFortunes Graham Street property to Tim Q. Ly. Under 36 M.R.S.A. 943, the City was not to issue a Page 54 of 74

Quitclaim Deed until after the period of redemption, but held onto it only a 2 weeks after the purported acceptance on 4 June 2002 of Tim Q. Lys allegedly sealed bid, made on 22 May 2002. Note: On 4/10/02, the City published that the foreclosure sale pursuant to 36 M.R.S.A. 841, 942, and 943 would take place on 22 May 2002 and that the bids would be opened, reviewed, and awarded on 5 June 2002. They were opened on 22 May 2002 and approved on 4 June 2002. The Bottom Line: Between 1991 and 1994, there were recorded municipal liens primarily for sewer arrearages and one for taxes. All of them appear to have been discharged by actual payment. During April 1995, the Saco & Biddeford Savings Institution was granted a judgment of foreclosure and sale of the property located at 22 Graham Street in Biddeford, but that institution never did foreclose. According to Attorney Roger Elliott, a mistake had occurred in the processing of the foreclosure and caused a fatal noncompliance with the applicable statute. After 1995, there was either waiver of the right to sell or noncompliance by the City. If and when the Notices of Impending Automatic Foreclosure were in compliance with 36 M.R.S.A. 943, the city took ownership of the Graham Street property by operation of law when the liens were automatically foreclosed upon expiration of the period for redemption. The following are examples of the conduct of the City of Biddeford after it filed its Notices of Impending Automatic Foreclosure pursuant to 36 M.R.S.A. 943: i. failed to record discharges of those tax liens until 6/24/02, after it had sold the property to Tim Q. Ly, as also required under 36 M.R.S.A. 943, j. repeatedly failed to conduct a sale on any of the dates set out explicitly in the Notices, k. repeatedly waived its ownership of the property when it sent Dorothy LaFortune (a/k/a Dorothy Ruel) tax bills for each of the ensuing years, and l. repeatedly caused a growing cloud on the title, inhibiting the sale of the property. By the above conduct in (a) through (d), the City repeatedly waived its rights to ownership. And in addition to the above conduct, the City sent LaFortune ["Dorothy Ruel"] a tax bill in 2003, which she paid and received a receipt. SeeFigures 1and 2, infra at 13. With that bill, the City was continuing to consider LaFortune the owner of the Graham Street property. When the foreclosure sale was advertised on 4/10/02, the following according to the Registry records were true: m. there were three municipal instruments that had been recorded but not either discharged or waived or reincarnated either by statute or by judicial process; they were:

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Figure 1. Tax bill for period from July 1, 2002 through June 30, 2003 after the alleged purchase by Tim Q. Ly of the property

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Figure 2. Receipt for Tax Payment Installment Municipal Lien Certificate Sewer Charges -- dated 06/06/01 in the amount of $564.13 plus interest of $53.60 and $34.74 in costs, and recorded in 6/7/01 in Book 10698, Page 200. Municipal Lien Certificate dated 06/06/01 in the amount of $1630.53 plus interest of $70.60 and $34.74 in costs and recorded on 6/07/01 in Book 10699, Page 214. Municipal Lien Certificate dated 06/10/01 in the amount of $1523.78 plus interest of $72.97 and $34.94 in costs, and recorded on 6/10/02 in Book 11695, Page 199. When the sale occurred on 22 May 2002, the period of redemption on none of them had expired. When the sale occurred on 22 May 2002, the City had not made a statutorily proper demand on LaFortune for payment of any of the three liens. When the sale occurred on 22 May 2002, the City had not recorded a Notice of Impending Automatic Foreclosure for any one of them. In sum, the City had not complied with 942 and 943, thereby causing the bidding and subsequent sale of the Graham Street property to be unlawful, as well as causing the order allowing the Writ of Possession to be an unlawful order. Moore v. Dick, 187 Mass. 207, 211-212, 72 N.E. 967 (1905), where the court, in Page 57 of 74

setting aside a foreclosure sale on account of defective notice, stated: "It is familiar law that one who sells under a power (of sale) must follow strictly its terms. If he fails to do so there is no valid execution of the power and the sale is wholly void ... (citations omitted). The manner in which the notice of the proposed sale shall be given is one of the important terms of the power and a strict compliance with it is essential to the valid exercise of the power." McGreevey v. Charlestown Five Cents Sav. Bank, 294 Mass. 480, 483-484, 2 N.E.2d 543 (1936). Tamburello v. Monahan, 321 Mass. 445, 447, 73 N.E.2d 734 (1947). Bottomly v. Kabachnick, 434 N.E.2d 667, 670, 13 Mass.App.Ct. 480, (1982). [18] The automatic foreclosure of a tax lien under section 943, upon the failure to redeem, divests an owner of her equity of redemption. See City of Auburn v. Mandarelli, 320 A.2d 22, 30 (Me. 1974). We have stated that: after the filing of the tax lien certificate and notice properly given thereon and the passage of eighteen months' time, during which the taxes remain unpaid, complete record title to the property is placed in the municipality. The former owner's right of redemption and in fact his title are extinguished. Morissette v. Connors, 350 A.2d 332, 333 (Me. 1976).{13}\19/ In addition, "[u]nder Maine law, a mortgage on real property is a conditional conveyance with legal title vested in the mortgagee." Duprey v. Eagle Lake Water and Sewer Dist., 615 A.2d 600, 602 (Me. 1992). "The mortgagor retains only the right to possess the premises and the equity right of redemption." Id. (citing Martel v. Bearce, 311 A.2d 540, 543 (Me. 1973)). Because tax lien foreclosures vest full and unencumbered title in the municipality upon the failure to redeem, pursuant to section 943, the mortgagees' interests appear to be divested as well.{14} Ocwen Federal Bank, FSB v. Anne Gile et al., 2001 ME 120, 18 (2001) (Yor-00625). Unfortunately, the Court in Ocwen wrote: " This opinion does not address the issue of post-deadline waiver of an automatic foreclosure deadline" [id., at n. 8]. Neither does it address the issue with which LaFortune is concerned here. FN19 {13} . See also Magno v. Town of Freeport, 486 A.2d 137 (Me. 1985) (stating "in the absence of contrary provisions by statute or constitution, a municipality's title to property acquired under the tax-lien-mortgage- foreclosure statute . . . is absolute" and the municipality has "no duty to reconvey the property to the former taxpayer-owner on any theory of equity and good conscience" if payment is then tendered). Ocwen, 2001 ME at 18 n. 13. The issue here appears to be one of first impression: Whether a city waives its absolute ownership when it sends a tax bill to the mortgagor i.e., the owner of the property prior to the foreclosure -- on a date after the foreclosure but before a sale of the property to a third-party. LaFortune contends that Biddeford waived its absolute ownership each and every time it failed to sell the property and continued to send her tax bills. And further, when the City failed to follow the foreclosure procedures of 942 and 943, it did not re-acquire ownership of her Graham Street property. EXHIBIT B Page 58 of 74

FEBRUARY 2000 LETTER FROM CITY MANAGER MISLEADING LAFORTUNE REGARDING ABATEMENT

Figure 3. Boldface emphasis added to sentence regarding abatements.

Page 59 of 74

Justice for the persecuted Stop Child Abuse and Legal Kidnapping Crimes by Kent County Child Protective Services and 17th Circuit Court Nanaruth Carpenter. CPS twice substantiated this father of child abuse on 1/19/01 and 12/2006. Abandoned his parental role 11/9/2004. CPS Bolden testified,September 8, 2008 mom did nothing except love and protect her children Carpenter has committed the crime failure to protect. The 12 custody factors do not include common sense. (All evidence can be viewed upon request) Tuesday, February 9, 2010 Void Judgment any court anytime. Supreme Court Writ of Mandamus CIVIL CASE NO: 009-02680-DM Defendant/Counter Plaintiff, ) COA CASE NO: 292875 ) COA CASE NO: 289312 ) **************************************** Denise Bruns Kim Alexander Bruns Pro Se Litigant Pro Se Litigant

PETITION FOR WRIT OF MANDAMUS FOR REVISORY REVIEW OF FRAUD, PERJURY, ABUSE OF DISCRETION AND ORDERS EXCEEDING JURISDICTION on motion of a party filed at any time, the court may exercise revisory power and control over in case of fraud, mistake or irregularity. (Lapeer Co Clerk v Lapeer Circuit Judges, 465 Mich 559 *2002+). as provided for by MCR 9.122(A) (2) MOTION TO VOID JUDGMENTS ISSUED IN EXCESS OF JURISDICTION There is no discretion to ignore lack of jurisdiction. Joyce v. U.S. 474 2D 2). Once jurisdiction is challenged, the court cannot proceed but rather, should dismiss the action. Melo v. US, 505 F2d 1026 TABLE OF CONTENTS INDEX OF AUTHORITIES..4 STATEMENT OF ISSUES PRESENTED....8 STANDARD OF REVIEW9 JURISDICTIONALSTATEMENT...10 STATEMENT OF FACTS.16 ISSUES...18 COMPLAINT .32 RELIEF SOUGHT,.33 INDEX OF AUTHORITIES Lapeer Co Clerk v Lapeer Circuit Judges, 465 Mich 559 *2002+) 2 Joyce v. U.S. 474 2D 2)..2 Melo v. US, 505 F2d 1026......2 30A Am Jur Judgments '' 44, 45..8 Long v. Shorebank Development Corp., 182 F.3d 548 (C.A. 7 Ill. (1999)..9 (Lapeer Co Clerk v Lapeer Circuit Judges, 465 Mich 559 *2002+).....9 Rose v. Himely (1808) 4 Cranch 241, 2 L ed 608...9 Pennoyer v. Neff (1877) 95 US 714, 24 L ed 565..9 Thompson v. Whitman (1873) 18 Wall 457, 21 l ED 897..9 Windsor v. McVeigh (1876) 93 US 274, 23 L ed 914....9 Page 60 of 74

McDonald v. Mabee (1917) 243 US 90, 37 Sct 343, 61 L ed 608.9 (Lubben v. Selective Service System Local Bd. No. 27, 453 F.2d 645 (1st Cir. 1972)...9 Reynolds v. Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087, 1092.9 Sramek v. Sramek, 17 Kan. App 2d 573, 576-7, 840 P. 2d 553 (1992).10 rev. denied 252 Kan. 1093(1993)...10 First Federal Commodity Trust Corp. v. Commr of Sec.,272 Md.329,333(1974) 11 Kraft, Supra, 35 Md. App. at 311..11 Ventresca, Supra, 266 Md. At 40312 Davis v. Attorney General of Md No.123 (2009).13 Eyler. Quoting Bland vs. Hammond 177 Md. App. 340, 347, 168 Md..13 Davis v. Attorney General of Md No.123 (2009).13 Eyler. Quoting Weitz, Supra, 272 Ms. At 63113 Early v. Early, 338 Md. 639, 652(1995).13 Long v. Shorebank Development Corp., 182 F.3d 548 (C.A. 7 Ill. (1999).13 Fredman Brothers Funiture v. Dept. of Revenue, 109 Ill. 2D 202, 486 N.E. 2D 893(1985)..13 Village of Willowbrook, 37 Ill. App. 3D 393(1962)...13 The U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683,1687 (197413 Brown v. Vankeuren, 340 Ill. 118, 122 (1930)...13 Snowden v. Balt. Gas & Electric Co. 300 Md. 555, 559-60n.2(1984)13 id at 560 n.2 quoting United States v. Fort Sill Apache Tribe, Stateb of Okla.,501 F2d 861, 863-64 (t. Cls, 1974). ..13 Davis v. Attorney General of Md No.123 (2009)13 Eyler. quoting Platt v. Platt, 302 Md. 9, 13(1984).13 J.T. Masonry Co. v. Oxford Construction Srvs., Inc., 314 Md. 498, 506 (1989)13 Sabariego v Maverick, 124 US 261, 31 L Ed 430, 8 S Ct 461.14 (1 Freeman on Judgments, 120-c.)..14 Yates v. Village of Hoffman Estates, Illinois, 209 F.Supp. 757 (N.D. Ill. 1962)14 U.S.C.A. Const. Amend. 5-Triad Energy Corp. v. McNell, 110 F.R.D. 382 (S.D.N.Y. 1986). Klug v. U.S., 620 F. Supp. 892 (D.S.C. 1985).14 Johnson v. Zerbst, 304 U.S. 458 S Ct.1019.14 Pure Oil Co. v. City of Northlake, 10 Ill. 2D 241, 245, 140 N.E. 2D 289 (1956) ..14 Hallberg v. Goldblatt Bros., 363 Ill. 25 (1936)14 U.S.C.A. Const. Amend. 5 Triad Energy Corp. v. McNell 110 F.R.D. 382 (382 (S.D.N.Y. 1986)14 Stillwell v. Markham 10 P.2d 15, 16, 135 Kan. 206 (1932).....15 Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872)..15 U.S. v. Will,449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980) 15 Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821)15 Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958)15 Quinn v Mouw-Quinn, 552 NW2d 843 (SD, 1996)........16 Clarke v Wayne Circuit Judge, 193 Mich 33; 159 NW 387 (1916)........16 Johns v Johns, 178 Mich App 101, 106; 443 NW2d 446 (1989)....21 Quinn v Mouw-Quinn, 552 NW2d 843 (SD, 1996)........21 Burba v Burba (After Remand), 461 Mich 637, 643-645, 647; 610 NW2d 873 (2000).....22 Macomb Co Dept of Social Services v Westerman, 250 Mich App 372, 377; 645 NW2d 710 (2002)..22 Evink v Evink, 214 Mich App 172, 175-176; 542 NW2d 328 (1995).22 People ex. re. Brzica v Village of Lake Barrington, 644 NE 2d 66 (Ill app. 2 dist. 1994)..23 Long v. Shorebank Development Corp., 182 F.3d 548 (C.A. 7 Ill. (1999).........25 Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974)...25 Page 61 of 74

Village of Willowbrook, 37 Ill. App. 3D 393(1962) including the Fourth......25 Reynolds v. Bolunteer State Life Ins. Co., Tex. Civ.App., 80 S.W.2d 1087.......27 Klugh v. U.S., D.C.S.C., 610 F Sup.892, 901.....27 Brown v. Vankeuren, 340 Ill. 118, 122 (1930)....28 Rose v. Himely (1808) 4 Cranch 241, 2 L ed 608....29 Pennoyer v. Neff (1877) 95 US 714, 24 L ed 565...29 Thompson v. Whitman (1873) 18 Wall 457, 21 l ED 897...29 Windsor v. McVeigh (1876) 93 US 274, 23 L ed 914.....29 McDonald v. Mabee (1917) 243 US 90, 37 Sct 343, 61 L ed 608.....29 (Lubben v. Selective Service System Local Bd. No. 27, 453 F.2d 645 (1st Cir. 1972)........29 Clarke v Wayne Circuit Judge, 193 Mich 33; 159 NW 387 (1916)....31

Statutes Cited MI. Code. (1973, 2006 Repl. Vol.), 6-408 of the Courts and Judicial Proceedings Article (CJ), and Rule-535(b)..12 Fed. Rules of Civil Procedure, Rule 60(B) (4),..14 28 U.S.C.A., U.S.C.A. Const. Amend. 5...14 Michigan Child Protection Law Act of 1975.16 Michigan Supreme Court Custody Act.....21 False Claims Act (31 U.S.C. 3729).20 False Claims Act and (Title 31U.S.C. 3729-3733)..22 18 USC - U.S. Code - Title 18: Crimes and Criminal Procedure (January 2004).22 Fourth and Fourteenth Amendment26 CHILD CUSTODY ACT OF 1970 Act 91 of 1970, 722.27a, Parenting time, Sec. 7a. (3)..27 Federal Questions Case (28U.S.C. 1331).31 Diversity Case (28 U.S.C. 1332)...31 42 U.S.C. 1983...31 1746 of title 28 United States Code.33

Court Rules Cited MCR 9.122(A) (2)..2 MI. Code. (1973, 2006 Repl. Vol.), 6-408 of the Courts and Judicial Proceedings Article (CJ), and Rule535(b).....15 MCL 552.23(1)..17 MCL 552.605(2)21 MCL 552.17(1)..22 MCR 2.114(a) 22

STATEMENT OF ISSUES PRESENTED A - WERE DUE PROCESS VIOLATIONS USED TO UNLAWFULLY CHANGE CUSTODY AND DESTROY THE DEFENDANTS? B WAS FRAUD, PERJURY and VIOLATIONS OF FALSE CLAIMS ACT USED BY PLAINTIFF AND HIS ATTORNEYS TO CHANGE CUSTODY? C WAS FRAUDULENT GAL & CPS REPORT USED TO UNLAWFULLY REMOVE THE MINOR CHILD AND CHANGE OF CUSTODY? Page 62 of 74

D WERE DEFENDANTS PRO SE RIGHTS AND HER DEFENDANTS RIGHTS VIOLATED? E - DID JUDGES CONTINUE AFTER JURISDICTIONAL CHALLENGES WERE SUBMITTED? F WAS THERE A PATTERN & PRACTICE OF EXTREME JUDICIAL BIAS?

STANDARD OF REVIEW ISSUE: Revisory Review of Fraud, Perjury, Abuse of Discretion and Orders Exceeding Jurisdiction This Court in Melo v. US, 505 F2d 1026 succinctly explained: Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but rather, should dismiss the action, 30A Am Jur Judgments '' 44, 45. A void judgment is not entitled to the respect accorded a valid adjudication, but may be entirely disregarded, or declared inoperative by any tribunal in which effect is sought to be given to it. All proceedings founded on the void judgment are themselves regarded as invalid,

JURISDICTIONAL STATEMENT Defendants petition for void judgment: An order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court, Long v. Shorebank Development Corp., 182 F.3d 548 (C.A. 7 Ill. (1999). Void judgment issued in excess of jurisdiction: There is no discretion to ignore lack of jurisdiction. Joyce v. U.S. 474 2D 2). Once jurisdiction is challenged, the court cannot proceed but rather, should dismiss the action. Melo v. US, 505 F2d 1026 Defendants petition for writ of mandamus: For Revisory Review of Fraud, Perjury, Abuse of Discretion and Orders Exceeding Jurisdiction: on motion of a party filed at any time, the court may exercise revisory power and control over in case of fraud, mistake or irregularity. (Lapeer Co Clerk v Lapeer Circuit Judges, 465 Mich 559 *2002+). as provided for by MCR 9.122(A) (2) An order that exceeds the jurisdiction of the court, is void, or voidable, and can be attacked in any proceeding in any court where the validity of the judgment comes into issue Rose v. Himely (1808) 4 Cranch 241, 2 L ed 608; Pennoyer v. Neff (1877) 95 US 714, 24 L ed 565; Thompson v. Whitman (1873) 18 Wall 457, 21 l ED 897; Windsor v. McVeigh (1876) 93 US 274, 23 L ed 914; McDonald v. Mabee (1917) Page 63 of 74

243 US 90, 37 Sct 343, 61 L ed 608. "a Court must vacate any judgment entered in excess of its jurisdiction," (Lubben v. Selective Service System Local Bd. No. 27, 453 F.2d 645 (1st Cir. 1972) Void judgment is one which has no legal force or effect, invalidity of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally, Reynolds v. Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087, 1092. - Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but rather, should dismiss the action, Melo v. US, 505 F2d 1026 - A void judgment is not entitled to the respect accorded a valid adjudication, but may be entirely disregarded, or declared inoperative by any tribunal in which effect is sought to be given to it. All proceedings founded on the void judgment are themselves regarded as invalid, 30A Am Jur Judgments '' 44, 45. - A judgment rendered by a court without personal jurisdiction over the defendant is void. It is a nullity. A judgment shown to be void for lack of personal service on the defendant is a nullity, Sramek v. Sramek, 17 Kan. App 2d 573, 576-7, 840 P. 2d 553 (1992) rev. denied 252 Kan. 1093(1993) Therefore, Defendant/Counter submits that her void judgment and writ of mandamus lies properly before this Court. Now comes the Defendant, Denise Bruns, a reluctant pro se litigant and victim of ineffective assistance of counsel, unlawful malicious prosecution, attorney fraud and perjury that usurped the judicial process, and a pattern and practice of extreme judicial bias that began with the Defendant Denise Bruns submission of her financial form informing the court she was a 15 (fifteen) year stay-at-home mother without any income the court being fully aware the plaintiff was the only source of income during the fifteen year marriage denied the defendant paid legal representation. The court being fully aware the plaintiff was the only source of income during the fifteen year marriage denied the defendant paid legal representation. Defendant Denise Bruns kept the family together during the two year period when Plaintiff deserted the family, and caused a nine-year divorce-custody battle to cover-up the kidnapping of her children under color of law by judicial appointees, lawyers and judges that profited financially. The felonies and offenses in the above-cited case threatens the Constitution, and Defendant Bruns preys the Michigan Supreme Court will interpret this pro se pleading as broadly as possible to ensure justice, and exercise revisory jurisdiction, review and correct glaring injustice and irremediable injury as a supervisory review of the unlawful hearings, void judicial orders. Attorney Catherine Appel and Defendants oral requests and Motions to Void Judgment December 26, 2002 continuing to o that have been suppressed and ignored, despite that they remain unchallenged and unadjudicated, yet the Court continued on the merits in excess of jurisdiction and unlawfully deprived Defendant of custody, and pursuant to the MI. Court of Appeals and US Supreme Court citations listed below (Pgs. 12-15) Defendant petitions this Court to perform a Revisory Review of orders based on fraud and perjury, orders that exceeded jurisdiction and abuse of judicial discretion as the irrefutable evidence herein was submitted to inferior Courts only to be suppressed, ignored or dismissed for fabricated procedural reasons to usurp the judicial process and deny justice. Therefore, as a result of the Kent County, 17th Circuit Court and the MI. Court of Appeals and the Attorney Grievance Committee denying Defendant justice, there is no remedy available in the inferior Courts First Federal Commodity Trust Corp. v. Commr of Sec.,272 Md.329,333(1974 ); Kraft, Supra, 35 Md. App. at 311, Defendant requests this Court exercise Supervisory Jurisdiction and review the merits and issue a Writ of Mandamus and; 1) issue orders to void judgments or vacate custody orders entered after November 9, 2004 that unlawfully awarded custody to Plaintiff based on overt fraud and perjury in emergency ex-parte hearings when no emergency existed (See Exhibits 5 & 6)(case #00-02680-DM), and immediately revert sole custody of the minor child, Alida Georgette Bruns, to Defendant Bruns as it existed before attorney fraud upon the Court and perjury robbed the Court of jurisdiction, refer the Page 64 of 74

fraud upon the Court and perjury by Plaintiff and his corrupt attorneys to the proper authorities to prosecute their felonies, pursuant to the following rulings by the MI. Court of Appeals and the US Supreme Court and other well established citations issued regarding jurisdiction, fraud and perjury that usurped the judicial process. 1) SUPERVISORY JURISDICTION - MI COURT OF APPEALS First Federal Commodity Trust Corp. v. Commr of Sec., 272 Md.329, 333(1974); Kraft, Supra, 35 Md.App. at 311 states Courts Supervision grant a motion to vacate as and an appeal is necessary to vindicate rights wrongfully lost, Ventresca, Supra, 266 Md. At 403; Appeals of orders that are not final but treated as if they are, Snowden v. Balt. Gas & Electric Co. 300 Md. 555, 559-60n.2(1984). All other rulings are intertwined with the Courts decision to issue an arrest warrant these rulings properly may be challenged, See id at 560 n.2 quoting United States v. Fort Sill Apache Tribe, Stateb of Okla.,501 F2d 861, 863-64 (t. Cls, 1974). in appeal a Circuit Courts judgment is governed by MI. Code. (1973, 2006 Repl. Vol.), 6-408 of the Courts and Judicial Proceedings Article (CJ), and Rule-535(b) on motion of a party filed at any time , the court may exercise revisory power and control over in case of fraud, mistake or irregularity. Once fraud, mistake, or irregularity has been shown, the court may vacate the judgment upon consideration of equitable factors, including whether the moving party has shown that he has acted in good faith and with ordinary diligence, and that he has meritorious cause of action or defense Davis v. Attorney General of Md No.123 (2009) Eyler. quoting Platt v. Platt, 302 Md. 9, 13(1984); also see J.T. Masonry Co. v. Oxford Construction Srvs., Inc., 314 Md. 498, 506 (1989). We review the courts exercise of discretion to vacate the judgment, upon consideration of the equitable factors for abuse Davis v. Attorney General of Md No.123 (2009) Eyler. Quoting Bland vs. Hammond 177 Md. App. 340, 347, 168 Md; and quoting Furthermore, an irregularity in the contemplating of Rule 2-535(b) is not an error, but a nonconformity of process or procedure Davis v. Attorney General of Md No.123 (2009) Eyler. Quoting Weitz, Supra, 272 Ms. At 631; Early v. Early, 338 Md. 639, 652(1995) 2) VOID ORDERS BASED ON FRAUD An order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court, Long v. Shorebank Development Corp., 182 F.3d 548 (C.A. 7 Ill. (1999). An order is void if fraud was committed in the procurement of jurisdiction, Fredman Brothers Funiture v. Dept. of Revenue, 109 Ill. 2D 202, 486 N.E. 2D 893(1985) An order is void if it was procured by fraud upon the court, In re Village of Willowbrook, 37 Ill. App. 3D 393(1962) The U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683,1687 (1974) states "when a state officer acts under a state law in a manner violative of the Federal Constitution, he "comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States"; A judgment is void if a defective petition was filed, Brown v. Vankeuren, 340 Ill. 118, 122 (1930) A judgment of a court without hearing the party or giving him an opportunity to be heard is not a judicial determination of his rights, and is not entitled to respect in any other tribunal Sabariego v Maverick, 124 US 261, 31 L Ed 430, 8 S Ct 461 "If a court grants relief, which under the circumstances it hasn't any authority to grant, its judgment is to that extent void." (1 Freeman on Judgments, 120-c.) When judges act when they do not have jurisdiction to act, or they enforce a void order (an order issued by a judge without jurisdiction), they become trespassers of the law, and are engaged in treason, The Court in Yates v. Village of Hoffman Estates, Illinois, 209 F.Supp. 757 (N.D. Ill. 1962) held that "not Page 65 of 74

every action by a judge is in exercise of his judicial function. ... it is not a judicial function for a judge to commit an intentional tort even though the tort occurs in the courthouse." 3) AUTHORITIES REGARDING DUE PROCESS VIOLATIONS Void judgment is one where court lacked personal or subject matter jurisdiction or entry of order violated due process, U.S.C.A. Const. Amend. 5-Triad Energy Corp. v. McNell, 110 F.R.D. 382 (S.D.N.Y. 1986). - Judgment is a void judgment if the court that rendered the judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process, Fed. Rules of Civil Procedure, Rule 60(B) (4), 28 U.S.C.A., U.S.C.A. Const. Amend. 5 Klug v. U.S., 620 F. Supp. 892 (D.S.C. 1985). - A judgment is void if it violated due process, Johnson v. Zerbst, 304 U.S. 458 S Ct.1019; Pure Oil Co. v. City of Northlake, 10 Ill. 2D 241, 245, 140 N.E. 2D 289 (1956) Hallberg v. Goldblatt Bros., 363 Ill. 25 (1936) Void judgment where the court lacked personal or subject matter jurisdiction or entry of order violated due process, U.S.C.A. Const. Amend. 5 Triad Energy Corp. v. McNell 110 F.R.D. 382 (382 (S.D.N.Y. 1986) The subject-matter of a criminal offense is the crime itself. Subject-matter in its broadest sense means the cause; the object; the thing in dispute. Stillwell v. Markham 10 P.2d 15, 16, 135 Kan. 206 (1932) Due Process is a requirement of the U.S. Constitution. Violation of the United States Constitution by a judge deprives that person from acting as a judge under the law. He/she is acting as a private person, and not in the capacity of being a judge,:Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13 Wall. 335, 20 L.Ed. 646 (1872) any judge who acts without jurisdiction is engaged in an act of treason, U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821). Engaging in an act of treason against the United States Constitution by any citizen of the United States is an act of war against the United States, Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958): 4) FACTS OF THE CASE Plaintiff Kim Bruns and Defendant Denise Bruns were married on November 7, 1987. Three children were born to the marriage, to wit, Josiah Alexander Bruns, Oliver Mitchell Bruns, Alida Georgette Bruns, dob, 5/27/1997, only custody and visitation as to Alida Georgette is in dispute in this matter. Defendant Bruns, a 15 (fifteen) year stay-at-home mother who kept the family together during the two year period when Plaintiff deserted the family October 13, 2004 and Amended November 9, 2004 orders: The defendant shall have sole legal and physical custody of the parties minor children, because the court finds that the Plaintiff has abandoned his role as a parent. (Exhibit 1) as the father did not attempt to contact the children until the defendant filed her petition); Quinn v Mouw-Quinn, 552 NW2d 843 (SD, 1996) Pursuant to law: Unfit parent: One who failed to visit, provide support been abusive, neglected, or failed to provide proper care. 5) CASE HISTORY On December 25, 1991 the plaintiffs pattern of documented domestic violence began with the charge of a non aggravated assault with 1 year probation against Defendant Bruns see (Exhibits 2 8) December 13, 1999 plaintiff admitted in writing to criminal sexual misconduct to the parties three minor children, I did that with the boys also. It was her butt not her genially. Dont start getting weird on me Denise but if you want me to stop, I will. (Exhibit 4) The Michigan Child Protection Law Act of 1975 states that sexual misconduct includes but is not limited to any contact or inter-action between a child and an adult, January 19, 2001, the Plaintiff (Kim Bruns) pinched the minor child Oliver Bruns, DOB 7/21/90 on his chest leaving a large bruise. This incident was reported to Child Protective Services their investigation substantiated the Plaintiff of child abuse. Clarke v Wayne Circuit Judge, 193 Mich 33; 159 NW 387 (1916). Page 66 of 74

Being fully advised of the above documented incidents of abuse by the Plaintiff the lower court appointed Guardian Ad Litem-Attorney Mary Benedict, as a ringer, on November 21, 2001 (Exhibit 9) to investigate the facts relating to the care, custody of the minor children Josiah Bruns dob 1/14/89, Oliver Bruns dob 7/21/90 and Alida Bruns dob 5/27/97. Benedicts investigation and report (Exhibit 9) began a pattern and practice of fraud upon the Court that usurped the judicial process and included false child abuse allegations, false attorney affidavits, and perjury used to maliciously prosecute defendant Bruns to cover up the kidnapping of the minor child under color of law. Specifically, GAL/Attorney ignored the minor children repeated reports of abuse by the plaintiff supported with evidence of material facts of his documented history of abuse, properly leaving the trial court to decide. (Police Reports Attached Exhibits 2-8) 6) ISSUE: PATTERN & PRACTICE OF EXTREME JUDICIAL BIAS November 21, 2001 (Exhibit 10) the Parties were ordered to equally compensate the GAL-Attorney at the rate of $80.00 per hour, to further oppress Defendant financially and judicial malfeasance, in violation of: Chapter 215: Section 56A. Investigations; The compensation shall be fixed by the Court and shall be paid by the commonwealth, together with any expense approved by the court, upon certificate to the state treasurer. The judges order ignored the plaintiff was the sole source of support for the defendant a 15 (fifteen) year stay home mother. The judge denied Defendant, a fifteen year stay at home mother who kept the family together during the two years that Plaintiff deserted the family, alimony in violation of MCL 552.23(1) with another order exhibiting extreme judicial bias and another example of the pattern and practice of judicial wrong doings in an attempt to eliminate the defendant from the lives of her children. GAL-Attorney Benedict and therapist Steven Griffioen agreed to conceal exculpatory evidence by only providing the children a safe place to express their feelings during the custody proceeding and keeping the childrens therapy records confidential and would not be brought into the custody dispute. February 14, 2002 (Exhibit 11) court ordered Griffioen by recommendation of Benedict custody evaluations to be performed by Dr. Griffioen. (Exhibit 12) August 6, 2004 (Exhibit 13) the defendant a pro se litigant ordered to pay the GAL-Attorney Fees within 15 day. GAL-Attorney Benedict Im asking the court to order her to list the house for sale at a price to pay my fee, as well as the existing mortgage. I dont care if Ms. Bruns gets anything out of the house at this point. The defendant advised the court the Plaintiff had not voluntarily paid child support for the three minor children with the defendant since November 19, 2002. The defendant request for a quick claim deed to refinance the home and retroactive child support back to the entry of the consent judgment was denied. Referee Dok it is not properly before this court. If Benedict forecloses on the defendants home where would she like the children to live? The defendants request for an evidentiary Hearing to reduce the GAL-Attorney bill was denied. October 28, 2005 (Exhibit 14), reintroduction therapy after plaintiff abandoned his parental role court denied the minor children confidentiality. Plaintiffs Attorney Irons petitioned a show cause the martial home hadnt been sold or refinanced and the defendant was ordered by Judge Carpenter to sign a release disclosing the minor childrens therapy records. The request for a quick claim was denied on August 6, 2004 defendant could not proceed without the plaintiff and Attorney Irons cooperation to execute the quick claim deed. September 26, 2008: The defendant having sole, legal physical custody of the minor child Alida paid $427.20 dollars for her to continue attending Tri-unity Unity Christian School. (Exhibit 15) October 10, 2008 (Exhibit 16), The Plaintiff did not have custody and arbitrarily changed the minor childrens schools, the proper procedure to change schools would have been to file a motion. The Defendants Attorney Catherine Appel asked the court to hold the Plaintiff in contempt. Judge Carpenter denied charging the plaintiff in contempt and further responded According to case law, change custody on and ex parte or a temporary basis. Reality is even though Mr. Bruns technically is given extended parenting time opposed to some type of custody , at this time he is the person the child is spending days and night. I believe it would be very inappropriate and very destabilizing to change her school setting in a couple of weeks we will have completion of the evidence in the trial and Ill be in a position to make a long-term decision. Defendant concluded Biasthats bias Carpenter Page 67 of 74

January 11, 2006 (Exhibit 17) Motion to determine responsibility for uninsured health care expensed was adjourned, defendants Attorney James Kraayeveld did not appear, the motions was never rescheduled. Do to ineffective counsel the defendant shall reimburse the Plaintiffs attorney fees $350.00. The defendant properly submitted Dr. Makedonski therapy bills for the minor children in compliance with the FOCs recommendation and order. Plaintiff was not held responsible for childrens therapy bills. FOC on December 11, 2007 abated defendants child support 100%. Referee Komar: Judge Carpenter is doing and issued and order consistent with what she has in Mind. Im not going to make any changes to what she is doing, its inappropriate for me to step in and do something for a couple months. Judge Carpenter Ordered on December 11, 2008, March 14, 2009, April 25, 2009, October 24, 2009 (Transcript Exhibit 18) child support for Alida was not to be abated. October 10, 2008 Attorney Appel asked Judge Carpenter to enforced two previous child support orders. Attorney Appel: There are two prior orders. The last I checked, the court speaks through its orders except today when legal custody means nothing. Judge Carpenter: I believe that the motion is not timely. All aspects of issues relating to the children are before the court in a trial status. Defendants request reinstatement of child support in compliance with courts orders denied 7) ISSUE B: WERE FRAUD, PERJURY and VIOLATIONS OF FALSE CLAIMS ACT USED BY GAL-ATTORNEY, PLAINTIFF AND HIS ATTORNEYS TO CHANGE CUSTODY? CUSTODY ORDERS December 14, 2001 (Exhibit 19) Gal- Attorney Benedict a ringer Emergency Petition for a change of custody declaring the defendant was mentally abusive and a threat to the minor children. Judge Carpenter issued a restraining order and forced into supervised visitation based on fraudulent allegations contained no first-hand evidence of any kind to support Benedicts claim that Defendant Bruns had abused neglected or mentally harmed her children. Therefore, the emergency motion on its face is legally insufficient absent of first-hand evidence or knowledge, and overtly violates the False Claims Act (31 U.S.C. 3729). The histrionics and hearsay it contains is legally insufficient and, by law, does not provide probable cause to convene an emergency immediate removal without due process of law. Since this time the defendant has been forced to defend herself against a pattern of false allegations of child abuse whose due process rights have been violated, Defendant pro se rights have been violated and those of her minor children as Defendant Bruns original lawyers took her money and sold her out, and failed to submit to the Court that Defendant is a good parent who has injured no one and broken no law, The lower court did not have jurisdiction to entertain a change of custody when there was no emergency and did not have probable cause that any emergency existed. The Michigan Court of Appeals and the US Supreme Court have ruled repeatedly that when jurisdiction is challenged the merits of the case are to be halted and jurisdiction addressed before continuing on the merits. 8) ISSUE D: CONSENT JUDGMENT November 19, 2002 (Exhibit 20) the parties entered a consent judgment for a change in custody. Defendant was always the primary caretaker of the children and support would be awarded to neither party. *a+n agreement by the parties regarding support will not suspend the authority of the court to enter a support order. Johns v Johns, 178 Mich App 101, 106; 443 NW2d 446 (1989). October 13 and November 9, 2004: (Exhibit 1) The defendant shall have sole legal and physical custody of the parties minor children, because the court finds that the Plaintiff has abandoned his role as a parent. as the father did not attempt to contact the children until the defendant filed her petition); Quinn v Mouw-Quinn, 552 NW2d 843 (SD, 1996) (Exhibit 4) Pursuant to law: , Unfit parent: One who failed to visit, provide support been abusive, neglected, or failed to provide proper care. Michigan Supreme Court Custody Act provides, in pertinent part: There is a rebuttable presumption that a parent who has a history of perpetrating domestic violence against the other parent, a child, may not be Page 68 of 74

awarded sole legal custody, sole physical custody, joint legal custody, or joint physical custody of a child. A parent has a history of perpetrating domestic violence if the court finds that, during one incident of domestic violence, the parent caused serious physical injury or the court finds that the parent has engaged in more than one incident of domestic violence. The presumption may be overcome by a preponderance of the evidence. obligated to enter a support order in compliance with the consent judgment and the childrens rights and entitlement to support obligation of the plaintiff. Judge Carpenter had a statutory duty and is required to comply with MCL 552.605(2) to follow the criteria set forth in the Michigan Child Support Formula Manual (MCSFM), when modifying a child support award. Burba v Burba (After Remand), 461 Mich 637, 643-645, 647; 610 NW2d 873 (2000). The consent judgment was contrary to the well-established principle and public policy of the state of Michigan that parents may not bargain away their childrens right and entitlement to support, by obligation of the plaintiff. Macomb Co Dept of Social Services v Westerman, 250 Mich App 372, 377; 645 NW2d 710 (2002); Evink v Evink, 214 Mich App 172, 175-176; 542 NW2d 328 (1995). Judge Carpenter October 13, 2004 and November 9, 2004 order violated MCL 552.17(1), it effectively nullified the plaintiffs child support obligation, contrary to the child support formula, and as the circumstances of the parents and the benefit of the children require, (Exhibit 1) 9) ISSUE B: WERE FRAUD, PERJURY and VIOLATIONS OF THE FALSE CLAIMS ACT AND 18 USC - U.S. Code AND MCR 2.114 (a) WILLFULLY USED TO CHANGE CUSTODY? December 11, 2007 Ex Parte Motion (Exhibit 21) Attorney Irons ringer Emergency Petition for a change of custody declaring Child Protective Services Boldens report (Exhibit 21)found the defendant had abused, neglected and threatened harmed her minor child Alida. Attorney Irons and Plaintiff Bruns certified as true and accurate procured by fraudulent allegations of child abuse, restraining orders and supervised visitation orders were issued. The Plaintiffs affidavit, (Exhibit 22) certified as true and accurate was prima facia procured by fraudulent allegations of child abuse the Emergency Petition contained no first-hand evidence or knowledge of any kind to support their claim that Defendant Bruns had abused neglected or mentally harmed her daughter. Therefore, the affidavit on its face is legally insufficient, and overtly violates the False Claims Act and (Title 31U.S.C. 3729-3733), 18 USC - U.S. Code - Title 18: Crimes and Criminal Procedure (January 2004) and MCR 2.114(a) The histrionics and hearsay it contains is legally insufficient and, by law, does not provide probable cause to convene an emergency ex-parte hearing. The lower court did not have jurisdiction to convene an ex-parte hearings when there was no emergency and did not receive probable cause that any emergency existed. The Plaintiff has a documented history of abuse MOLESTATION and abandonment towards the Defendant and children, (Exhibits attached) according to law that alone gives no rights to custody of the minor child, when the Defendant HAS NO PROVEN HISTORY OF ABUSE, MOLESTATION AND ABANDONEMENT OF THE CHILDREN. This cannot be disputed. September 8, 2008 CPS Bolden (Exhibit 24) testified her report was erred, which she did not correct. In fact she could not substantiate neglect, emotional abuse or threatened harm. The lower court lost subject matter jurisdiction based on the CPS Boldens retraction, which negated the allegation for a change in circumstance. In People ex. re. Brzica v Village of Lake Barrington, 644 NE 2d 66 (Ill app. 2 dist. 1994) it was stated that orders lacked jurisdiction over parties or subject matter lacks inherent power to enter judgment. December 11, 2008 (Exhibit 25) Decision and Order by Administrative Law Judge C. David Jones reviewed the evidence and determined: The evidence on the record does not show child abuse or neglect of Alida. There is no evidence of actual harm, negligent treatment or that the Petitioner placed Alida at an unreasonable risk and the great weight of evidence there was no threatened harm. Petitioners dispute was resolved by the time CPS investigation. Indeed Alida reported no neglect or abuse (although in regular conflict with her father); she wanted to continue living with Petitioner. (Exhibit 25) July, 28, 2009 Oliver Bruns retracted his allegations of abuse and further reported the CPS exaggerated and pushed the situation far beyond a point of reason. (Exhibit 26) Page 69 of 74

CPS Bolden and Oliver Bruns retractions (Exhibit 24 & 26) of their allegations against the defendant, Administrative Law Judge David C. Jones reviewed the evidence and determined she was innocent the change of custody was unwarranted and unfounded. (See Exhibits 24-26) Despite the fact the defendant had two previous Psychological evaluations (Exhibit 27 & 28) the most recent Psychological Evaluation by Dr. Jarchows (Exhibit 29) and Dr. Makedonsky whose credentials as an expert witness have been accepted in Michigan, testified September 8, 2008 the mother/child relationship is positive and appropriate. Based on clinical knowledge its Dr Makedonskis (Transcript Exhibit 30) opinion that its in Alidas best interest to return to live with her mother, separation anxiety will be detrimental to Alida. It is not unreasonable to assume that Plaintiff Bruns and corrupt Attorneys Joan Irons and corrupt Judges Carpenter and Referee Komar ignored and suppressed Makedonskis testimony and Interim Report to unlawfully get rid of the defendant so that Plaintiff Kim Bruns could take her child away December 2, 2007 (Exhibit 31) custody order awarding custody to the plaintiff was unlawful based on his Psychological Evaluation, (Exhibit 32) CPS Boldens September 8, 2008 retraction of her abuse allegations, Oliver Bruns 7-28-09 retraction, December 11, 2008 order and recommendation of Administrative Law Judge C.David Jones Petitioners dispute was resolved by the time CPS investigation. (Exhibit 25) Alida reported no neglect or abuse (although in regular conflict with her father); she wanted to continue living with Petitioner. September 8, 2008: Dr. Makedonsky expert witness testimony and interim report. ( Exhibit 30) the mother/child relationship is positive and appropriate. Based on clinical knowledge its in Alidas best interest to return to live with her mother, separation anxiety will be detrimental to Alida. Pursuant to: VICTIMS RIGHTS AMENDMENT (C) Section 71.004 for the U.S. Constitution which states: the court shall not appoint as sole managing conservator a party who has a history of committing family violence. - MICHIGAN SUPREME COURT CUSTODY ACT provides, in pertinent part: There is a rebuttable presumption that a parent who has a history of perpetrating domestic violence against the other parent, a child, may not be awarded sole legal custody, sole physical custody, joint legal custody, or joint physical custody of a child. An order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court, Long v. Shorebank Development Corp., 182 F.3d 548 (C.A. 7 Ill. (1999). The U.S. Supreme Court, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974) states "when a state officer acts under a state law in a manner violative of the Federal Constitution, he "comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States"; Judge Carpenter, Attorney Joan Irons and Plaintiff Bruns all have engaged in a pattern and practice of human trafficking based on fraud, perjury, false child abuse reports, motions, attorney affidavits, ex parte orders violating due process, and civil and constitutional rights all under the color of law. (Village of Willowbrook, 37 Ill. App. 3D 393(1962) including the Fourth, Fourteenth Amendments and other violations of the False Claims Act, (31 U.S.C. 3729) and 18 USC - U.S. Code - Title 18: Crimes and Criminal Procedure (January 2004) and MCR 2.114(a) December 2, 2008 custody order is void pursuant to: 1) The Plaintiff has a documented history of abuse MOLESTATION and abandonment towards the Defendant and children, (Exhibits attached) 2) according to law that alone gives no rights to custody of the minor child this cannot be disputed. 3) VICTIMS RIGHTS AMENDMENT (C) Section 71.004 for the U.S. Constitution states: the court shall not appoint as sole managing conservator a party who has a history of committing family violence. 4) MICHIGAN SUPREME COURT CUSTODY ACT provides, in pertinent part: There is a rebuttable presumption that a parent who has a history of perpetrating domestic violence against the other parent, a child, may not be awarded sole legal custody, sole physical custody, joint legal custody, or joint physical custody of a child. 10) ISSUE A: WAS A PATTERN & PRACTICE OF DUE PROCESS VIOLATIONS USED TO UNLAWFULLY Page 70 of 74

DESTROY THE DEFENDANT BRUNS? Secret Hearings Violate Due Process June 3, 2009 (Exhibit 33) Attorney Irons petitions and emergency ex parte hearings alleging the defendant attempted to abduct the minor child from a school event which parents were invited and the minor child Alida was involved. Attorney Irons affidavit, (Exhibit 34) certified as true and accurate was prima facia procured by fraudulent allegations of child abduction issued an order to suspend any and all contact between the minor child and the defendant until further order of this court. Emergency Petition contained no first-hand evidence or knowledge of any kind but instead contained false claims, fraud, histrionics and quotes from unnamed third parties to support her claim that Defendant Bruns had attempted to abduct the minor child and that the defendant was not invited to the school event at Michigan Adventure. Therefore, the emergency petition on its face is legally insufficient, absent of probable cause and overtly violates the False Claims Act and (Title 31U.S.C. 3729-3733), 18 USC - U.S. Code - Title 18: Crimes and Criminal Procedure (January 2004), MCR 2.114(a) and CHILD CUSTODY ACT OF 1970 Act 91 of 1970, 722.27a, Parenting time, Sec. 7a. (3) June 19, 2009 (Exhibit 35) the docket reflects the defendant Bruns petitioned the court for a void judgment, re-instate visitation of the June 3, 2009 restraining order as the court did not have jurisdiction over the parties or subject matter pursuant to Reynolds v. Bolunteer State Life Ins. Co., Tex. Civ.App., 80 S.W.2d 1087, Klugh v. U.S., D.C.S.C., 610 F Sup.892, 901. Despite the exculpatory evidence (Exhibits 36) Referee Komar dismissed the motion with no delegation of authority cited to support the ruling The Defendant argues this court lacks subject matter jurisdiction to decide on this issue Defendant is strongly cautioned about making representations to the court that have no basis in law or fact, Defendant offered no creditable explanation her pleading have no basis in law or fact, no reasonable reading or interpretation of that same order could lead the defendant to believe that contacting the minor child was permissible. The defendants I would be granted a hearing or jury trial o this evidence. Referee Komar I dont think youll get a jury trial. You might get an evidentiary hearing, thought. When judges act when they do not have jurisdiction to act, or they enforce a void order (an order issued by a judge without jurisdiction), they become trespassers of the law, and are engaged in treason, The Court in Bolunteer State Life Ins. Co., Tex. Civ.App., 80 S.W.2d 1087, Klugh v. U.S., D.C.S.C., 610 F Sup.892, 901.Yates v. Village of Hoffman Estates, Illinois, 209 F.Supp. 757 (N.D. Ill. 1962) held that "not every action by a judge is in exercise of his judicial function it is not a judicial function for a judge to commit an intentional tort even though the tort occurs in the courthouse." Attorney Irons June 2, 2009 Affidavit (Exhibit 34) certified as true and accurate was absent first-hand knowledge as she is not a party to the action. A judgment is void if a defective petition was filed,Brown v. Vankeuren, 340 Ill. 118, 122 (1930). The pleading was insufficient robbed the Court of jurisdiction. A secret hearing convened under color of law held to usurp justice and falsely condemn Defendant Bruns. The case docket reflects that on July 17, 2009 (Exhibit 37) the defendant request a denovo review of the June 19, 2009 order, void judgment and reinstate visitation which is a constitutional right according to Michigan parenting time guidelines of the unlawful June 2, 2009 Ex Parte order. Judge Carpenter denied the defendant a denovo review based on her request had expired even though her motion was filed properly, the court clerk decided it wasnt the proper signature. (Exhibit38) The defendant was stifled in all her attempts to present the facts being advised You dont have a right to reargue your appeal. Judge Carpenter advised the defendant she has made it very difficult to determine or to establish a routine which is not one that creates conflict and is distressing to Alida it continues to be problematic. Defendant was further advised: Ms. Bruns if you do not discontinue your litigation I will have you escorted from the court room. The intent was to have Defendant incarcerated. Judge Carpenter willfully suppressed and ignored the prima facia exculpatory evidence (Exhibits 39) that proved the Defendant Bruns innocents and Attorney Irons allegations of fraud upon the court are Page 71 of 74

founded in fact and well documented. This is another act of this court and attorney Irons to destroy the defendants relationship with her child. Pursuant to An order that exceeds the jurisdiction of the court, is void, or voidable, and can be attacked in any proceeding in any court where the validity of the judgment comes into issue Rose v. Himely (1808) 4 Cranch 241, 2 L ed 608; Pennoyer v. Neff (1877) 95 US 714, 24 L ed 565; Thompson v. Whitman (1873) 18 Wall 457, 21 l ED 897; Windsor v. McVeigh (1876) 93 US 274, 23 L ed 914; McDonald v. Mabee (1917) 243 US 90, 37 Sct 343, 61 L ed 608. "a Court must vacate any judgment entered in excess of its jurisdiction," (Lubben v. Selective Service System Local Bd. No. 27, 453 F.2d 645 (1st Cir. 1972) Judge Carpenter dismissed the motion with no delegation of authority cited to support the ruling (Exhibit 23 & 25). 11) ISSUE E: Malicious Prosecution From the beginning of this case Judge Carpenter changed custody, issued restraining ordered supervised visitation all based on fraudulent reports , prima facia affidavits and motions all in violation of 18 USC U.S. Code - Title 18: Crimes and Criminal Procedure (January 2004) and MCR 2.114(a) the exculpatory evidence proved that Defendant Bruns was innocent of child abuse, neglect, threatened harm and attempted abduction of the minor child. Judge Carpenter and Referee Komar knowingly suppressed the defendants innocence despite the fact that the Defendant had three psychological evaluations stating the she could effectively parent her children, and despite the fact that the Plaintiff has a documented history of abuse and molestation to which he has admitted and despite the fact that he was court ordered to attend therapy before he could be considered as a custodial parent.

12) ISSUE E: DID JUDGES CONTINUE TO ADJUDICATE AFTER JURISDICTIONAL CHALLENGES WERE SUBMITTED? Defendant Bruns Attorney Catherine Appel challenged Judge Carpenters authority to remove the children from the defendant custody on December 14, 2001 (Exhibit 19) without evidence or proof of neglect or abuse. Judge Carpenter advised Attorney Appel If you dont like my ruling you can always file and Appeal The docket reveals Judge Carpenter did not correct the court record by returning the minor children to the defendants custody. Judge Carpenter did not report GAL-Attorney Benedict, Attorney Richard Roane or Attorney Joan Irons and Kim Bruns fraud upon the court and perjury to the proper authorities as mandated by Judicial Canons and she did not sanction GAL-Attorney Benedict, Attorney Roane or Attorney Irons in any way for knowingly representing a guilty party and perpetrating a fraud upon the court. Instead, the docket reveals Judge Carpenter knowingly awarded custody of the minor child to Kim Bruns, who has a documented history of abuse. Awarding custody to a parent with a history of domestic violence and non-aggravated assault in violation of the judges mandate to act in the best interest of the child. Violates the VICTIMS RIGHTS AMENDMENT (C) Section 71.004 for the U.S. Constitution and MICHIGAN SUPREME COURT CUSTODY ACT 13) ISSUE COMPLAINT This complaint is effective, because the transcript and evidence are riddled with false accusations by all aforementioned judicial appointees toward the Defendant (Denise Bruns). The lower court assigned ringers: Aforementioned state employees appointed by the trial judge failed to separate fact from accusation and twist the evidence in favor of the Plaintiff (Kim Bruns). Clarke v Wayne Circuit Judge, 193 Mich 33; 159 NW 387 (1916). All continue to conspire to destroy the defendants relationship with her daughter. The lower court awarded custody to an unfit parent in violation of a Prima facie tort by awarding custody to an unfit parent ignoring substantial evidence to return the minor child to the defendants home where she was not abuse. The lower court intentional ignored evidence and intentionally maliciously prosecuted the defendant for fraudulent child abuse allegations, inflicted harm on the minor child and the defendant resulting in mental and emotional abuse, denial of legal representation, and costly legal fees for defending herself against false claims of abuse and protecting Page 72 of 74

the minor child from further abuse from the plaintiff and the trial court. The lower court has intentionally extended this case for their own financial gain. This complaint is both a Federal Questions Case (28U.S.C. 1331) and a Diversity Case (28 U.S.C. 1332) for losses and damages - and an ongoing child custody. This is a complaint for relief under 42 U.S.C. 1983 with pendant state claims, against the trial court, the defendant Denise Bruns submission of her financial form informing the court she was a 15 (fifteen) year stay-at-home mother without any income the court being fully advised the plaintiff was the only source of income during the fifteen year marriage denied the defendant paid legal representation, falsely accused of child abuse by judicial appointees legal professionals retained by this court, the plaintiff and municipality, and corporate conspirators, a certain judge in the lower court. The defendant was a victim of ineffective assistance of counsel, unlawful malicious prosecution, attorney fraud and perjury that usurped the judicial process, and a pattern and practice of extreme judicial bias. For declaratory and injunctive relief Certain judicial appointees, in conspiracy with each other, violated the Defendant and the minor childrens protected First Amendment right to civil redress, their right to a jury trial and due process rights by a pattern and practice of fraud, deceit, perjury, falsifying and manipulating official court records, and other depraved and degenerate acts including the seditious act of corrupt judges who work with Michigan Bar members in courtrooms to deny victims of the family court schemes any meaningful remedy, and, thereby, conspire to destroy the Constitution and civil redress. 14) RELIEF SOUGHT Writ of Mandamus: issue orders to void judgments or vacate custody orders entered unlawfully awarded custody to Plaintiff based on overt fraud and perjury in emergency ex-parte hearings when no emergency existed, Abuse of Discretion and Orders Exceeding Jurisdiction: November 21, 2001, December 14, 2001, August 6, 2004, October 28, 2005, January 11, 2006, December 2, 2007, December 11, 2007, December 2, 2008, June 2, 2009 June 3, 2009, June 19, 2009, July 17, 2009. WHEREFORE, Plaintiff respectfully requests this Court: (1) RELIEF FROM INFERIOR STATE COURTS FRAUD PERJURY: Exercise its Power of Superintending Control, and corroborated by the Exhibits allow Defendant relief from the above-listed violations of jurisdiction, issue the following orders (2) the Rulings were void because they were made in unlawfully convened secret hearings (3) The above orders Falsely accused the defendant of child abuse are void, based on the finding of the corroboration of Chief Administrative Judge Jones and CPS Worker retractions of her fraud, perjury of abuse and neglect allegations. (4) The defendant has been cleared of all allegations of abuse. (5) Pursuant to October 13 and November 9, 2004 order (Exhibit 1): Return the minor child Alida immediate to the sole legal & physical custody of the defendant as it existed before the fraud and perjury orders that exceeded jurisdiction unlawfully removed custody, (6) Prosecute the Plaintiff Kim Bruns and Attorney Joan L. Irons under section - 1746 of title 28 United States Code False Claims Act, willfully subscribes as true any material matter declaration, certificate, verification or statement under penalty of perjury is guilty and shall law be fined or imprisoned not more than 5 years or both. Posted byMs. Dat11:18 AM Labels:17th Circuit Court Judges,CPS Investigator Bolden,fraud,Fraudulent Child Abuse Allegations,Malfeisance,MI Supra Court,perjury,Violation of Civil Rights,Void Judgment,Writ of Mandamus No comments: Post a Comment Newer PostOlder PostHome Page 73 of 74

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