CIVIL COURT OF THE CITY OF NEW YORK

COUNTY OF NEW YORK

------------------------------------------------------------ x INDEX NO. 47075 -10
:
Chase (SOUTH DAKOTA) N.A. :
Plaintiff :
: MOTION
: FOR
-against- : SUMMARY
: JUDGMENT
:
:
:
OSVALDO VALDES :
Defendant :
:
------------------------------------------------------------ x

DEFENDANTS MOTION FOR SUMMARY JUDGMENT

NOTICE

TAKE NOTICE that upon the annexed affidavit of Osvaldo Valdes sworn to on the 29th of

March, 2011 and the exhibits annexed thereto, and upon all the prior pleadings and

proceedings and herein, the Defendant Pursuant to Rule 3212 will move this Court located at 111

Centre Street, New York, NY, 10013, Part 3, Room 428, on the 20th of    April, 2011 at 9:30

AM for an order granting summary judgment in favor of defendant. This motion is supported by

the pleadings, the law of the State of New York and the accompanying memorandum in support,

all of which demonstrate that there exists no genuine issue as to any material fact and that

defendant is entitled to judgment in its favor as a matter of law.    Please take further notice that

these papers have been served on you at least eight    days before the    motion is scheduled to be

heard. You must serve your answering papers, if any, at least two days before such time.

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 MEMORANDUM IN SUPPORT

I. FACTS

1. Plaintiff refused tender of payment. 4th May 2010 plaintiff was sent:

Notice of Ultra Vires / Void Agreement and Change in Terms

Notice of    Change in Terms,
Notice of Cancellation,
Notice of Billing Error,
Collection Notice,   
$5115.38 Tender of Payment and Document Collection Draft,
Controlling    Law,
Money Gram Money Order R10325254067 dated 05/04/10 which Plaintiff cashed
thus agreeing to all of defendants terms and conditions, (Exhibit A).

2. Plaintiff is issued invoice for use of defendants property. 17th of June, 2010 plaintiff was

issued second set of documents:

Notice and Judgment of Default and Estoppel + Invoice,   

Invoice to Chase Bank for for $239,081.02 presently overdue and owing.
Chase has not denied amount.    (Exhibit B),

3. No Service of summons on defendant. Plaintiff initiates lawsuit, 16 July 2010. Two

month after refusing tender of payment. There was no service of summons.

4. 12 October 2010, defendant issues A NOTICE OF INTEREST GRANTOR/SETTLOR

AND ORDER OF INSTRUCTION TO TRUSTEE TO SETTLE, SET OFF AND CLOSE

CLAIM INDEX NO. 47075-10 (Exhibit C).

5- 15 March 2010 Judge Katherine Freed issued order to return to defendant previous order

of tender refused by Chase (Exhibit D).

6- New York court officials may have NY State Common Retirement Fund interest in JP

Morgan Chase & Co. Domestic and International Stock and interest in JP Morgan Alternative

Investment Assets (Exhibit E).

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 II. ARGUMENT

1. Summary judgment provides for the most prompt resolution of actions in which there is

no genuine issue of material fact. Its purpose is to dispose of actions where there is nothing to

try. Ex rel. Wilson v. Preston (1962), 173 Ohio St. 3d 203, 191 N.E.2d 31; Paul v. Uniroyal

Plastics Co. (Ottawa Co. 1988), 62 Ohio App.3d 277, 575 N.E.2d 484. Furthermore, in a trilogy

of decisions, the Supreme Court clarified and articulated the proper approach to summary

judgment practice. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242; Celotex Corp. v.

Catrett (1986), 477 U.S. 317; Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp.

(1986), 475 U.S. 574. The essence of the Court's message was stated in Celotex:

Summary judgment procedure is properly regarded not as a disfavored

procedural shortcut but rather as an integral part of the Federal Rules as a
whole.

Rule 3212    provides that “The motion shall be granted if,upon all the papers and proof
submitted

the cause of action....shall be    established sufficiently to warrant the court as a matter of law in

directing judgment in favor of any party.”

As such, this court should grant summary judgment in defendants favor because:

2. Violation of the duty of good faith and fair dealing. Debt is discharged. A good faith

tender of payment by defendant discharged any claim plaintiff may have had.    Because plaintiff

was offered tender of payment and refused it, debt is discharged according to NY Law. Tender

of payment was made to plaintiff by defendant prior    to lawsuit. Plaintiff and attorney knew
debt

had been discharged and never had standing to bring lawsuit. Plaintiff refused tender of

payment. Refusal of such tender discharges defendant.    (Exhibit A).

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LAWS OF NEW YORK, LIABILIIES OF PARTIES, Section Section 3--604.

Tender of Payment.

(1)    Any party making tender of full payment to a holder when or after it is due is
discharged to the extent of all    subsequent    liability    for interest, costs and
attorney's fees.

(2)    The    holder's    refusal of such tender wholly discharges any party who has a
right of recourse against the party making the tender.

"His tender, as we have already seen, was equivalent to payment, so far as concerns the legality
of all subsequent steps by the collector to enforce payment by distraint of his property."
Poindexter v. Greenhow, 114 U.S. 270 quoted in AYERS. SCOTT. MCCABE., 8 S. Ct. 164, 123
U.S. 443 (U.S. 12/05/1887) Further:

"Silence can only be equated with fraud when there is a legal or moral duty to speak, or
when an inquiry left unanswered would be intentionally misleading... We cannot condone
this shocking conduct... If that is the case we hope our message is clear. This sort of
deception will not be tolerated and if this is routine it should be corrected immediately"
U.S. v. Tweel, 550 F2d 297, 299-300.

3. Trustee has not discharged debt as ordered. A NOTICE OF INTEREST OF

GRANTOR/SETTLOR AND ORDER OF INSTRUCTION TO TRUSTEE TO SETTLE, SET

OFF AND CLOSE CLAIM INDEX NO. 47075-10 to members of Chase Legal Services to settle

account a second time and they have again refused.    As such plaintiff has not exhausted their

administrative remedies (Exhibit E) :

63C Am Jur 2d Public Officers and Employees § 241

Generally; fiduciary nature of duties

A public officer must act primarily for the benefit of the public; by accepting a public office, one
undertakes to perform all the duties of the office, and while he or she remains in such office the
public has the right to demand that he or she perform such duties. A public officer owes an
undivided duty to the public whom he or she serves. Public policy demands that an officeholder
discharge his or her duties with undivided loyalty, and that every public officer is bound to
perform the duties of his or her office faithfully. An officer's or public employee's duty of loyalty
to the public and his or her superiors is similar to that of an agent of a private principal.

As expressed otherwise, the powers delegated to a public officer are held in trust for the people

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and are to be exercised on behalf of the government or of all citizens who may need the
intervention of the officer. A public official is held in public trust. That is, a public officer
occupies a fiduciary relationship to the political entity on whose behalf he or she serves, and
stands in a fiduciary relationship to the citizens that he or she has been elected to serve. Public
officers are fiduciaries and, when dealing with public property, must act with the utmost good
faith, fidelity, and integrity.

4. On or about 12th day of October 2010 trustee failed to:

1) Within 10 days verify plaintiff's claim brought in this case and submit to
grantor/settlor FASB (Financial Accounting Standards Board) forms 5, 95, 125, 133, 140
and GAAP.

2) Within 15 days instruct Chase to withdraw grantor/settlor's original instrument

and all interest accrued to date and all proceeds and administrative overpay derived
therefrom and all payments and fees paid therein and to apply the    total value thereof
to the claim in this matter and to settle, close and extinguish claim and to return to
grantor/settlor all excess proceeds in and of property left in trust.

3) Within 30 days submit written report to grantor/settlor, beneficiaries and OSVALDO

VALDES of the final results of your actions in regards to this matter.

5. Attorney cannot submit anything into evidence and therefore there is no evidence of

anything on record by plaintiff.    As an attorney submitted business records into case, there is no

evidence by plaintiff before this court. Statements of counsel in brief or argument are

insufficient for summary judgment.

"An attorney for the plaintiff cannot admit evidence into the court. He is either an
attorney or a witness". Trinsey v. Pagliaro D.C.Pa. 1964, 229 F. Supp. 647

6. Dis not liable. As per Laws of New York, defendant is not liable because

defendants signature does not appear on any instrument: LAWS OF NEW YORK Section

3--401. Signature.

        (1)    No person is liable on an instrument unless his signature appears thereon.

7. Incorrect amount.    Alleged debt as presented to him by Martin J. Murphy on September

27, 2010 is not his debt and if it is his debt, he denies that it is still a valid debt and if it is a valid

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debt, he denies the amount sued for is the correct amount; (Exhibit F) (29th March 11 Affidavit).

8. Improper service. I learned of lawsuit from clerk of court. I was not served papers.

9. Conflict of interest. New York public officials, judges and clerks may have interest in JP

Morgan Chase & Co. Domestic and International Stock and interest in JP Morgan Alternative

Investment Assets. As such, it is impossible for defendant to receive impartial decision from this

court. Court and plaintiff were aware of this before this trial began against defendant (Exhibit
E).

III. CONCLUSION

Based upon the foregoing, defendant, respectfully requests an order from the court granting

judgment in its favor as a matter of law.

Respectfully submitted,

By Osvaldo Valdes, all rights reserved

184 East 7th Street
New York, NY    10009

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--------------------------------------------------------------------------------
CERTIFICATE OF SERVICE I certify that the foregoing was served by mailing a copy by

United States mail, first-class postage prepaid, on 04 APRIL 2011, as follows:

CHASE BANK USA, N.A.

1985 MARCUS AVENUE, NY2-M352
NEW HYDE PARK, NY 11042

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