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CAUSE NO.

________________

XXXXXXXX, Plaintiff,

v.

VRM (Vendor Resource Management), DULY AUTHORIZED AGENT FOR THE SECRETARY OF VETERANS AFFAIRS AND CORPORAL RON BENNETT, INDIVIDUALLY AND IN HIS CAPACITY AS AN AGENT OF THE CONSTABLES OFFICE OF RUBEN DAVIS, FORT BEND COUNTY, TEXAS, ET AL., Defendant(s)

IN THE DISTRICT COURT OF FORT BEND COUNTY

_________JUDICIAL DISTRICT

MOTION TO VACATE VOID JUDGMENT

The Plaintiff, XXXXXXXX, hereby declares and asserts the Rights to which she is entitled. Preliminary understanding of the Courts authority is basic to the assertion of rights:

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The Court is obliged to follow precedence decisions as stated in Faye Anastasoff vs. United States of America, 8th Circuit Court, 2000: It is on this account that our law is deemed certain, and founded in permanent principles, and not dependant on the caprice or will of judges. A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.

However late this objection has been made, or may be made in any cause, in an inferior or appellate court of the United States, it must be considered and decided, before any court can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction. Jurisdiction is the power to hear and determine the subject matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them; the question is, whether on the case before a court, their action is judicial or extra-judicial; with or without the authority of law, to render a judgment or decree upon the rights of the litigant parties. State of Rhode Island v. Com. of Massachusetts, 37 U.S. 657, 718 (1838).

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 Page 2 of 14

F.R.D. 278.

Lack of subject matter jurisdiction is a non-waivable defect which may be raised at any stage of the proceedings. State v. LaPier, 961 P.2d 1274, 289 Mont. 392, 1998 MT 174 (1998).

Irrespective of whether a party moves to vacate a judgment, the courts have inherent authority to vacate a void judgment. Patton v. Diemer (1988), 35 Ohio St.3d 68.

Where a void judgment has been rendered and the record in the cause, or judgment roll, reflects the vice, then the court has not only the power but the duty and even after the expiration of the term to set aside such judgment. Harrison v. Whiteley, Tex.Com.App., 6 S.W.2d 89.

Courts are constituted by authority and they cannot act beyond the power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are [254 U.S. 348, 354] not voidable, but simply void, and this even prior to reversal. Elliot v. Piersol, 1 Pet. 328, 340; Old Wayne Life Assn v. McDonough, 204 U.S. 8 , 27 Sup. Ct. 236.

A trial court has no discretion when faced with a void judgment, and must Page 3 of 14

vacate the judgment whenever the lack of jurisdiction comes to light. Mitchell v. Kitsap County, 59 Wash. App. 177, 180-81, 797 P.2d 516 (1990).

Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice. Davis v. Wechsler, 263 U.S. 22, 24 (1923). It has long been established that a State may not impose a penalty upon those who exercise a right guaranteed by the Constitution. Frost v. Railroad Commission of California, 271 U.S. 583.

Marbury v. Madison, 5 US 137: The Constitution of these United States is the supreme law of the land. Any law that is repugnant to the Constitution is null and void of law.

U.S. Const. Art.IV, 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Defective affidavits, hearsay as evidence and no stated damages are but a Page 4 of 14

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.

I. RELIEF REQUESTED Plaintiff hereby asserts her right to due process under the Constitution
and precedence decisions. Plaintiff also asserts her right to a fair and impartial judge to make a ruling based on these facts and precedence. The cannons for a judge include: A judge should avoid even the appearance of impropriety in all of his or her activities.

It is on these principals, in part, and finding that this court has jurisdiction, that the plaintiff, XXXXXX, seeks remedy from the court in the form of action vacating the void judgment set forth by Justice Joel Clouser, Sr., of the Justice Court, Precinct 2, Fort Bend County, Texas on April 30, 2013, Cause number 13-JEV21-XXXXX: CITATION FOR FORCIBLE DETAINER, and all subsequent resulting actions of that judgment, including, but not limited to, the WRIT OF POSSESSION posted on June 4, 2013, currently pending execution.

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II. BACKGROUND

1. Plaintiff's assertion to Justice Clouser of the need for dismissal of the above referenced CAUSE based on improper service as per Tx.R.Civ.Pr 742 was met with a demand from the Justice to produce the rule in hard copy form, despite the Plaintiff having the original Form 742a she received as documentation of service, to which the Justice's own endorsement was affixed, which would have established a second violation of Tx.R.Civ.Pr 742, but would not be allowed submission to the bench. (copy of rule and form attached). This action proves a failure to follow statutory procedure on the Justice's part, as well as an infringement upon due process, and in such, a relinquishing of the court's subject matter jurisdiction in the matter, thus rendering the judgment void.

Steven Ray Opella v. Bayview Loan Servicing LLC M.L. Builders, Inc. v. Reserve Developers LLP (FLA. 4th DCA 2000) Kenney v. Richmond (Fla 4th DCA 1987) "A judgment entered without service of process is void and will be set aside and stricken from the record on motion at any time."

Strawder v. Thomas, 846 S.W.2d 51, 62 (Tex. App.-Corpus Christi 1992, no writ). "Rules relating to service of process are mandatory, and a failure to comply therewith, if a judgment be rendered against a party who was not served in accordance with those rules (and who did not waive service of citation or appear voluntarily) renders the judgment void."

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Subject matter jurisdiction fails: if a judge does not follow statutory procedure, and where the judge does not act impartially, Armstrong v Oucino, 300 Ill 140, 143 (1921), Bracy v. Warden, U.S. Supreme Court No. 96-6133 (June 9, 1997).

1B. In addition, Justice Clouser questioned the Plaintiff, "You got it, didn't you?", referring to the CITATION left posted on her garage door.

The cannons for a judge include: A judge should avoid even the appearance of impropriety in all of his or her activities.

2. If it was in fact necessary to present a hard copy of the rule, dismissive statements by Justice Clouser, Sr. once he entered his judgment such as, "It happens every day"(one can only assume he was referring to evictions) and "I advise you to get an attorney", do not serve to demonstrate the exercising of one of the Justice's duties.

See Haines v. Kerner , 404 U.S. 519 (1972) and Plaskey v. CIA, 953 F.2d 25, Court errs if court dismisses pro se litigant without instructions of how pleadings are deficient and how to repair pleadings.

3. When asked of the Plaintiff (now Defendant) by the Defendant (now Plaintiff) to provide proof of claim, the agent for the Plaintiff shook is head and began rifling through his stack of papers, only to produce uncertified, Page 7 of 14

unverified copies of foreclosure sale documents which were allowed despite the Plaintiff's (then Defendant) protestation (copies attached). The Justice's comment was, "Looks good to me". In spite of the comment, the documents failed to provide sufficient evidence of claim, and, it could be construed, were only presented in an attempt by the Plaintiff (now Defendant) to confuse the issue at hand, proof of claim, not proof of foreclosure sale, and to mislead the court to believing these documents actually held some substantiative relevance as referenced in Fed.R.403:

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Tunnell v. Hicks, 574 So.2d 264, 266 (Fla. 1st DCA 1991) A Florida court may not consider an unauthenticated document in ruling on a motion for summary judgment, even where it appears that the such document, if properly authenticated, may have been dispositive.

Aoude v. Mobil Oil, 892 F.2d 1115, 1118 (1st Cir. 1989), on which Cox heavily relied, described the appellate courts role in applying the abuse of discretion standard of review: While broad, the trial court's discretion is not unlimited. The [trial] judge must consider the proper mix of factors and juxtapose them reasonably. "Abuse occurs when a material factor deserving significant weight is ignored, when an improper factor is relied upon, or when all proper and no improper factors are assessed, but the court makes a serious mistake in weighing them." Independent Oil and Chemical Workers of Quincy, Inc. v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988); see also Anderson v. Cryovac, Inc., 862 F.2d 910, 923

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(1st Cir. 1988) (to warrant reversal for abuse of discretion, it must "plainly appear[] that the court below committed a meaningful error in judgment")

Manning v Clark, 71 So.2d 507 (Fla.1954), Williams v. City of Lake City, 62 So.2d 732 (Fla.1953) Courts sparingly grant summary judgment to avoid infringing on the constitutional right to trial. If fact issues exist and the slightest doubt remains, the Court must resolve the doubt in favor of the non-movant and deny summary judgment. Savino v. Fla. Drive In Theatre Mgmt., 697 So. 2d 1011, 1012 (Fla. 4th DCA 1997) Where a trial court determines that a partys conduct amounted to a scheme calculated to interfere with the courts ability to impartially adjudicate [the] claim, a sanction as severe as dismissal or default judgment is appropriate. ; see also Bob Montgomery Real Estate v. Djokic, 858 So. 2d 371, 375 (Fla. 4th DCA 2003) (dismissal is properly utilized where a party knowingly misleads the other party, thereby interfering with the other sides ability to defend (or prosecute) by a knowing deception intended to prevent the essential discovery.).

4. Nowhere in the uncertified, unverified foreclosure sale documentation submitted as proof of claim was VRM listed in any capacity. Nowhere in the uncertified, unverified foreclosure sale documentation submitted as proof of claim was the SECRETARY OF VETERANS AFFAIRS listed in any capacity. No other documentation was supplied to the Plaintiff (then Defendant) as proof of claim. This raises the question of standing, which would in turn raise the question of personal jurisdiction.

Standing is a constitutional prerequisite to maintaining a suit under Texas law. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex.1993). Standing, as a necessary component of a court's subject-matter jurisdiction, cannot be conferred by consent or waiver and can be raised for the first time on appeal. Id. at 443; see Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex.1990); In re Guardianship of Erickson, 208 S.W.3d 737, 740 (Tex.App.-Texarkana 2006, orig. proceeding). When Page 9 of 14

standing is challenged for the first time on appeal, appellate courts "must construe the petition in favor of the party, and if necessary, review the entire record to determine if any evidence supports standing."[3] Tex. Ass'n of Bus., 852 96*96 S.W.2d at 446. We review de novo a challenge to a party's standing. Tex. DOT v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex.2004).

Standing consists of some interest peculiar to the person individually and not as a member of the general public. Billy B., Inc. v. Bd. of Trs. of Galveston Wharves, 717 S.W.2d 156, 158 (Tex. App.Houston [1st Dist.] 1986, no writ) (citing Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984)). More specifically, a person has standing to sue if: (1) he has sustained, or is immediately in danger of sustaining, some direct injury as a result of the wrongful act of which he complains; (2) he has a direct relationship between the alleged injury and claim sought to be adjudicated; (3) he has a personal stake in the controversy; (4) the challenged action has caused the plaintiff some injury in fact, either economic, recreational, environmental, or otherwise; or (5) he is an appropriate party to assert the publics interest in the matter, as well as his own interest. Id. (citing Hous. Authority v. State ex rel. Velasquez, 539 S.W.2d 911, 91314 (Tex. Civ. App.Corpus Christi 1976, writ refd n.r.e.)). Standing is a component of subject matter jurisdiction. Douglas v. Delp, 987 S.W.2d 879, 882 (Tex.1999). 5. It is unclear as to the capacity of VRMs representative in his appearance before the bench on April 30, 2013, again broaching the matter of lack of personal jurisdiction for the court:

A.) As council, he stood independently, representing no true Plaintiff with actual standing appearing in court on that day being made available to the Defendant with firsthand knowledge of the actual claim, and any submissions of alleged evidence or testimony made under the veil of his capacity as council to VRM would stand as hearsay and inadmissable for the proceedings on that day. B.) As Plaintiff, he had no standing as the moving party as he had no personal interest in the property in question, nor had he suffered any damages at the hand of the Defendant.

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C.) As an agent for VRM , proof of that agency was not established, nor was his authority or capacity as an agent outlined or defined to the Defendant. In addition, he stood as a representative on several cases that day, at least 2 (two) prior to the Defendants appearance before the bench, with each one on the side of a plaintiff, neither with VRM as the moving party. D.) As an agent for the council of VRM, the same applies as outlined in points A.) And C.).

Dated _________________________ ______________________________ Defendant(s) (Signature)

XXXXXXXXXXXX Defendant(s) Name (Print)

Address XXXXXXXXXXXXXXXXXXXXXXXXX Telephone Number XXXXXXXXXXXXXX

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III. DECLARATION

I, XXXXXXXXX, declare as follows: 1. I am the defendant in this unlawful detainer action. 2. I request that the judgment entered in this action be vacated with prejudice for, at least, the following reasons: A. Improper service B. Denial of due process C. Lack of subject matter jurisdiction D. Lack of personal jurisdiction

I certify under penalty of perjury under the laws of the state of TEXAS that the foregoing statement is true.

Signed in Missouri City, Texas on __________________

__________________________________ Signature XXXXXXXXXXXX

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IV. VERIFICATION

On ______________________________, the Applicant, __________________________ personally appeared before me, the undersigned notary. After being sworn, the Applicant stated that she is qualified to make this oath, that she has read the foregoing Application and the Affidavit, that she has personal knowledge of the facts asserted, and the facts are true to the best of her knowledge and belief. Subscribed and sworn to before me on ____________________________

______________________________________ Notary Public in and for the State of Texas My commission expires:___________________

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CAUSE _________________

XXXXXXXXXXXX, Plaintiff,

v.

VRM (Vendor Resource Management), DULY AUTHORIZED AGENT FOR THE SECRETARY OF VETERANS AFFAIRS AND CORPORAL RON BENNETT, INDIVIDUALLY AND IN HIS CAPACITY AS AN AGENT OF THE CONSTABLES OFFICE OF RUBEN DAVIS, FORT BEND COUNTY, TEXAS, ET AL., Defendant(s)

IN THE DISTRICT COURT OF FORT BEND COUNTY

_________JUDICIAL DISTRICT

ORDER TO VACATE VOID JUDGMENT BY stipulation of XXXXXXX: It is hereby ordered this _____ day of ________, 2013, at _________oclock ____.M ., the following judgment is vacated, CITATION FOR FORCIBLE DETAINER, CAUSE 13-JEV21-XXXXX rendered April 30, 2013.

_____________________________________ JUDGE PRESIDING

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