Successor by Merger to BAC Home Loans Servicing, LP fka Countrywide Home Loans Servicing, LP Plaintiff, vs. Mary G. Donohue Michael D. Myers, Defendants ) ) )

Case No.: 2010-SU-005005-06


DEFENDANTS’ MOTION TO QUASH SUMMONS AND COMPLAINT Now comes Michael D. Myers and Mary G. Donohue, by special and restrictive appearance without waiving any rights, remedies, or defenses, substantive or procedural, including voluntary consent to subject matter or in personam jurisdiction, per Pa. R.C.P. Rule 1017(a)(4), for purposes of appeal, to Object and Quash the purported Summons and complaint as it was issued in blatant violation of Pa. R.C.P. 1. Michael D. Myers and Mary G. Donohue will not address the merits of the sham case at this point and does NOT consent to the jurisdiction of this court, and does not, by filing this Motion to Quash, enter into any contract with this court. Michael D. Myers and Mary G. Donohue, for purposes of appeal further assert a jurisdictional bar for failure to effect service of process as to Michael D. Myers and for failure to acquire subject matter jurisdiction per Pa. R.C.P. Rule 1028(a)(1).


Failure of In Personam Jurisdiction 2. Due to the failure to effect service of process on the person of Michael D. Myers/ future appellant, the court also never acquired in personam jurisdiction per Pa. R.C.P. Rule 1028(a)(1). Pennoyer v. Neff, 95 U.S. 714 (1878). Pennoyer held that no personal jurisdiction can be had over defendants who are physically absent from the state or have not consented to the court's jurisdiction. 3. There is insufficiency of service of process, as the Complaint was not served on Michael D. Myers. The law is clear, that even if it is put in someone’s hands that does not in and of itself confer jurisdiction by proper service. See Free State Receivables, Ltd. v. Claims Processing Corp., 76 F.R.D. 85 (1977). Where the person served is not an agent on whom proper service could be made, the fact that he may have advised the proper corporate official of the complaint is irrelevant.Alloway v. Wain-Roy Corporation, 52 F.R.D. 203 (E.D.Pa. 1971); Cohen v. Newsweek, Inc., 312 F.2d 76 (8th Cir. 1963). See also, Aquascutum of London, Inc. v. S/S American Champion, 300 F. Supp. 26(S.D.N.Y.), aff'd in part, [**6] rev'd in part, 426 F.2d 205 (2d Cir. 1970). 4. The Record reflects that the Putative Defendant Michael D. Myers was never personally served. As such, there is no Jurisdiction at this time and the case must be dismissed as to Robert Jeffery Martin. Adherence with the Statutes is not optional mandatory and strictly construed. See: Beckley v. Best Restorations, No. 4D09-249 (Fourth District 2009) (Appendix “App” A) And Green v. Jorgensen et al. No. 1-D 10-3721 (First District 2011) (App B) “The requirement ‘usual place of abode’ means ‘the place where the defendant is actually living at the time of service.’” Thompson v. State, Dep’t of Revenue, 867 So. 2d 603, 605 (Fla. 1st DCA 2004) (quoting Shurman v. Atl. Mortgage & Inv. Corp., 795 So. 2d 952, 954 (Fla. 2001)). “The word ‘abode’ means ‘one’s fixed place of residence for the time being when service is made.’ If a person has more than one residence, he must be served at the residence in which he is actually living at the time of service.” Torres v. Arnco Constr., Inc., 867 So. 2d 583, 586 (Fla. 5th DCA 2004) (quoting State ex rel. Merritt v. Heffernan, 195 So. 145, 147 (Fla. 1940)). 5. Michael D. Myers, in point of fact did not acquire a copy of the purported Complaint. See


Defendants’ Affidavit (Exhibit 1). If at such time that Plaintiff obtains Actual Service, Defendants will avail themselves of any additional legal remedies by right. Failure of Subject Matter Jurisdiction 6. Due to the fact that Plaintiff lacks standing, the court never acquired subject matter jurisdiction per Pa. R.C.P. Rule 1028(a)(1). a. Plaintiff is not the real party in interest and lacks the capacity to sue per PA Rule 1028(a) (5) and Defendants demand strict proof. b. Plaintiff is not the purported “creditor” and Defendants demand strict proof. c. Plaintiff is not the holder in due course per PA Commercial Code Title 13 Sec 3302. d. Plaintiff did not extend a thing of value to Defendants and Defendants demand strict proof that a thing of value was extended to Defendants by Plaintiff. e. Plaintiff did not provide any lawful consideration to Defendants, a necessary element of a lawful contract and Defendants demand strict proof of purported “consideration”. f. Plaintiff is not in control or possession of a legally or lawfully enforceable contract with Defendants and Defendants demand strict proof of the purported “contract”. g. Plaintiff has suffered no injury caused by Defendants and Defendants demand strict proof of alleged “injury” to Plaintiff by Defendants. h. Plaintiff has suffered no “loss” by alleged failure of Defendants to return purported “money” to Plaintiff and Defendants demand strict proof of purported “loss”. Insufficient Specificity In a Pleading 6. Per PA Rule 1028(a)(3) Plaintiff Bank of America N.A., with no first hand knowledge or credibility, and with a history of filing bogus “fraudclosure” claims in courts across the country, failed to state with specificity and particularity exactly how Defendants “defaulted” other, than making conclusory allegations with no evidentiary support. Lack of Capacity to Sue



Per PA Rule 1028(a)(5) Plaintiff lacks the capacity to sue as Plaintiff is not the

holder in due course. Plaintiff has failed to join an indispensible party, namely the true holder in due course of the alleged “contract” Plaintiff claims to have with Defendants. Lack of Authority to Represent 7. Defendants object to the alleged “authority” of McCabe, Weisberg, and Conway, P.C. to represent Plaintiff. The record shows no contract between McCabe, Weisberg, and Conway, P.C. and plaintiff, which is a condition precedent to authorize McCabe, Weisberg, and Conway, P.C. authority to bring this action. (see Judicial Notice 1) 8. Although advisory and not controlling, the following case citation is relevant and applicable, assuming arguendo Alice Garrett was properly served, which she was not (emphasis in bold). Personal service procured by fraud.- Personal service of process, if procured by fraud, trickery or artifice, is not sufficient to give a court jurisdiction over the person thus served, and service will be set aside upon proper application. Relief is accorded in such cases not because, by reason of the fraud, the court did not get jurisdiction of the person of the defendant by the service, but on the ground that the court will not exercise its jurisdiction in favor of one who has obtained service of his summons by unlawful means. In re Karol, 11 Md. App. 400, 274 A.2d 407 (1971). Applied in Bey v. Moorish Science Temple of Am., 362 Md. 339, 765 A.2d 132 (2001). 9. To proceed to the exercise of judicial power before jurisdiction has been established raises both statutory and Constitutional issues. Similar issues were raised by the doctrine of "hypothetical jurisdiction," which allowed courts to proceed to merits issues even when jurisdiction had not been established. Justice Scalia observed spoke for the Court in rejecting the doctrine in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998). Hypothetical jurisdiction produces nothing more than a hypothetical judgment -- which comes to the same thing as an advisory opinion, disapproved by this Court from the beginning. Much more than legal niceties are at stake here. The statutory and (especially) constitutional elements of jurisdiction are an essential ingredient of separation and equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects. For a court to pronounce upon the meaning or the constitutionality of a state or federal


law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires. Id. at 101-102 (internal citations and quotation marks omitted). NEW MATTER 10. Per PA Rule 1028 Official Note and Per Per PA Rule 1030 Plaintiff’s claims are barred for violating the Statute of Frauds as codified at 13 P.S. § 2201(a). Specifically Defendants were made an undisclosed third party to an investment contract via the Pooling and Servicing Agreement (PSA), the “holy grail” of securitization. Defendants were never noticed they would be held liable to said undisclosed contract of which there is no admissible evidence in the record proving such liability. JUDICIAL NOTICE #1 Defendants per PA Evidence Rule 201(d), Notice the court of Minnesota Statutes 481.09
Minnesota Statutes 481.09 PROOF OF AUTHORITY. A court, upon motion and hearing, and when reasonable grounds are shown, may require any attorney to prove the attorney's authority to appear and, until such proof is made, may stay all proceedings by the attorney on behalf of the party the attorney assumes to represent. At any stage of the proceedings the court may relieve a party from the consequences of the unauthorized acts of an attorney and, upon motion, may summarily compel such attorney to repair any injury resulting therefrom. History: (5691 ) RL s 2284 ; 1986 c 444

JUDICIAL NOTICE #2 Defendants per PA Evidence Rule 201(d), Notice the court of foreign case citations per U.S. Const. art IV, § 1, the “full faith and credit clause”. WHEREFORE, Due to fact that: Plaintiff lacks standing; the court is deprived of subject matter jurisdiction; Plaintiff failed to effect service of process upon the person of Michael D. Myers; personal service upon the person of Mary G. Donohue was gained under fraudulent misrepresentation; the court lacks in personam jurisdiction.


Further, Plaintiff’s purported attorney/agent failed/refused to produce evidence of alleged authority to “represent” Plaintiff, and due to the fact that Phelan Hallinan & Schmieg, LLP failed to investigate their purported “client’s” claims, and the fact that this case was filed under perceived color of authority this case must be dismissed sua sponte. Submitted this _____ day of _____________________ 2012

______________________________ MICHAEL D. MYERS

____________________________________ MARY G. DONOHUE

CERTIFICATE OF SERVICE UNDER PENALTY OF PERJURY, I, MARY G. DONOHUE hereby certify that a copy of the foregoing documents have been filed in the Court Of Common Pleas for the County of York,


Pennsylvania, and mailed via USPS first class mail in a sealed envelope on or about this ___ day of __________________, 2012 to the following recipients:

Phelan Hallinan & Schmieg, LLP BY: Joseph P. Schalk, Esq. Identification No. 91656 126 Locust St. Harrisburg, PA 17101

_______________________________ MARY G. DONOHUE

State of ______________ County of _____________

) ) ss. )


On this ____ day of ______________, 2012, before me, _________________________, a Notary Public in and for the above state and county, personally appeared ________________________, who proved to me on the basis of satisfactory evidence to be the person(s) who attested and subscribed to the within document, as true, correct, complete and not misleading. Witness my hand and seal this ____ day of ______________, 2012. _________________________________ Notary Public Seal My commission expires: ____________________


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