Your Name here, pro per
12345 W. Free ST.
Scottsdale, Arizona 85255
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA
Your Name here, pro se
BRIAN T. MOYNIHAN, and/or his successor, individually, and in his official capacity as PRES/CEO OF BAC HOME LOANS SERVICNG, LP, an ens legis being used to conceal fraud,
JAMES F. TAYLOR and/or his successor, individually, and in his official capacity as PRES. OF FIN.& ADMIN. OF RECONTRUST COMPANY, N.A., an ens legis being used to conceal fraud,
BRIAN T. MOYNIHAN, and/or his successor, individually, and in his official capacity as PRES/CEO OF BANK OF AMERICA, an ens legis used to conceal fraud,
BRUCE PARADIS, and/or his successor, individually, and in his official capacity as PRES/CEO OF HOMECOMINGS FINANCIAL NETWORK, INC., an ens legis being used to conceal fraud,
ANGELO MAZILO, and/or his successor, individually, and in his official capacity as PRES/CEO OF COUNTRYWIDE HOME LOANS, INC., an ens legis being used to conceal fraud,
R.K. ARNOLD and/or his successor, individually, and in his official capacity as PRES/CEO OF MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., an ens legis being used to conceal fraud,
AND JOHN DOES (Investors) 1-10,000,
et al, Defendant.
PETITION FOR TEMPORARY
RESTRAINING ORDER TO ESTOP
DEFENDANT FROM SELLING,
AND/OR OTHERWISE TAKING
PLAINTIFF’S REAL PROPERTY
1. DEFENDANT’S FRAUD; AND
2. DEFENDANT’S USE OF A VOID
CONTRACT PURSUANT TO
SECOND EDITION 46 § 203 AND
2. DEFENDANT’S NUMEROUS
ARIZONA REVISED STATUTES;
PLAINTIFF STATES THE CLAIM
FOR WHICH RELIEF CAN BE
GRANTED PURSUANT TO:
A.R.Cv.P. RULE 12(b)(6)
(Oral argument requested)
Assigned to Honorable____________
COMES NOW, Your Name here, pro se, Plaintiff, on COMPLAINT for Defendant’s numerous acts of fraud upon the court, inclusive of any and all judicial and/or non-judicial proceedings, including without limitations, Defendant’s purposeful fraud in attempting to appear as CREDITOR to the court, when in fact Defendant is well aware they are not the CREDITOR and therefore NOT the Real Party in interest in the foreclosure matter.
Plaintiff hereby reserves ALL RIGHTS, including without limitations, the Right to join any and all other and/or new parties that Plaintiff may discover at any time during the proceeding.
It is now incumbent on this court to query Defendant as to Defendant’s lawful position in this instant matter. If Defendants refuse to stipulate in open court that Defendant is the CREDITOR in this instant matter, this court must remove Defendant from this hearing forthwith, as this court is here to settle a matter between a CREDITOR and a DEBTOR.
Accordingly, if Defendant is not the CREDITOR in this Matter, then Defendant has thus stipulated that Plaintiff MUST be the CREDITOR in this matter.
Defendant cannot be the CREDITOR in this instant matter as Defendant NEVER risked any assets, nor is Defendant holding any assets.
No ENTITY can be a CREDITOR if they don’t hold the asset in question, [i.e.: the NOTE and/or the property]; and Mortgage Pass-through Trusts, [i.e. R.E.M.I.C., as defined in TITLE 26, Subtitle A, CHAPTER 1, Subchapter M, PART II, §§ 850-862] cannot hold assets; for if they do, their tax exempt status is violated and the Trust itself is void ab initio.
Defendant MUST NOW inform this court, the I.R.S. and the S.E.C. of their status of either being a CREDITOR and/or not being a CREDITOR.
Defendant’s own acts of fraud upon this court, Plaintiff, and the public in general are the single cause of this paradox and absent Defendant “stating the claim” they are the CREDITOR in this matter, this court cannot hear from Defendant.
By Law and precedent and in accordance with the Supreme Court of the United States pro se Pleadings MAY NOT be held to the same standard as a lawyer’s and/or attorney’s; and whose motions, pleadings and all papers may ONLY be judged by their function and never their form. See: Haines v. Kerner; Platsky v. CIA; Anastasoff v. United States; Litigants are to be held to less stringent pleading standards;
See: Haines v. Kerner, 404 U.S. 519-421; In re Haines: pro se litigants are held to less stringent pleading standards than admitted or licensed bar attorneys. Regardless of the deficiencies in their pleadings, pro se litigants are entitled to the opportunity to submit evidence in support of their claims.
See also: Platsky v. C.I.A., 953 f.2d. 25; In re Platsky: court errs if court dismisses the pro se litigant without instruction of how pleadings are deficient and how to repair pleadings.
See also: Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000); In re Anastasoff: litigants' constitutional (guaranteed) rights are violated when courts depart from precedent where parties are similarly situated.
For this matter, Defendant is and/or may be the listed Defendant, any and all parties Defendant refuses to reveal to Plaintiff and/or this Court, irrespective of whether or not said party and/or parties are known to this Court and/or Plaintiff and/or Defendant, the Corporate ens legis entity Defendant is employed by and/or is an officer thereof, and/or any other parity and/or parties, indispensible or not, any and all other party and/or parties receiving any pecuniary gain from, through, and/or by Defendant’s fraudulent act(s). Singular may be inclusive of plural and plural may be inclusive of singular.
Plaintiff hereby questions the authenticity of ALL dates and/or ALL signatures by ALL parties on ALL documents, including without limitations, notarized documents, “contracts”, “deeds”, “titles”, affidavits, and/or the like, including without limitations the dates and/or signatures by notary publics, officers, employees, and any and ALL parties attesting to any and ALL claims, facts, accounting, transfers, recordings, publications, and/or the like, etc.
Plaintiff disavows any and ALL implied and/or conferred and/or inferred “understanding” of “legalese” terms now and at the time of the “signing” of any and ALL of the documents pertaining to this action.
Plaintiff disavows any and ALL presumptions made by this Court, Defendant, and any and ALL other parties when said presumption may be detrimental to Plaintiff’s interest and/or case.
Plaintiff hereby demands ALL of Plaintiff’s Rights be protected by this Court, including without limitations, State and Federal Constitutionally protected Rights, God given Rights, Civil Rights, Human Rights, Rights protected by Treaty(s), and/or ALL privileges and/or immunities, and/or the like.
Plaintiff hereby demands this Court refuse to commit, and act to prevent Defendant from committing, any and ALL acts barratrous in nature.
Plaintiff hereby demands ALL applicable Rules of Court, Rules of Procedures, Laws, and/or Statutes be adhered to without preference for any party.
Plaintiff makes this statement: “I sent Defendant a Qualified Written Request, a Written Notice of Loan/Credit Dispute, and a Notice of Loan Rescission and Defendant did NOT RESPOND which was Defendant’s confession they knew they were committing fraud against me because they knew they were not the CREDITOR. If Defendant had responded then Defendant would have done so because they were the CREDITOR, but since Defendant did not respond as required by law for a CREDITOR to do, then Defendant has confessed Defendant knows it is not the CREDITOR. That is how I discovered Defendant committed fraud against me."
If Defendant attempts to fight this matter in court then Defendant knowingly, intelligently, and willfully must come to court WITHOUT “clean hands.”
Plaintiff comes to this court with “clean hands” and as a civilian and a laymen and attempts only to seek justice and equity in accordance with Arizona law.
I. Plaintiff hereby states the claim for which relief can be granted pursuant to Arizona Rules of Civil Procedure Rule 12(b)(6) as follows:
1. Plaintiff is the CREDITOR in this matter.
2. Defendant is the DEBTOR in this matter.
3. Defendant is a Fictitious Payee.
4. Defendant is not the CREDITOR, or a lawful ASSIGNEE of the CREDITOR, in this instant matter.
6. Plaintiff is not the DEBTOR in this matter.
7. Defendant was not the Real Party in Interest in the non-judicial proceeding.
8. Defendant did NOT put Defendant’s assets at risk in this instant matter.
9. Defendant may have only “lent credit” in this instant matter.
10. Defendant purposely destroyed the GENUINE ORIGINAL PROMISSORY NOTE to “securitize” the NOTE.
11. Defendant’s use of “legalese” in the mortgage documents as a means of converting Real Property from its true owner to Defendant is a criminal act of “conversion through fraudulent means” and therefore the mortgage documents are evidence of a criminal act and cannot be used by this Court in this instant matter.
(See: Black’s Sixth; “Understand”)
12. The United States has a primary mortgage Right and/or status on the real property in question and such CANNOT be circumvented by Defendant’s fraudulent and unlawful mortgage.
13. Defendant has been paid in full for the “contract” in question.
14. Defendant will fail to join “all indispensible parties” as such joinder would be prima facie evidence of Defendant’s fraudulent act of securitizing the “PROMISSORY NOTE.”
15. All “investors” involved in the securitization of the “Promissory Note” are indispensible parties to this action and MUST be joined by Defendant in any rebuttal, response, reply, answer, and/or the like by Defendant.
16. Defendant is using a corporate entity and/or TRUST in furtherance of fraudulent acts.
17. Defendant has no immunity for Defendant’s fraudulent acts.
18. Defendant is jointly and severally responsible for ALL of Plaintiff’s losses, cost fees, and/or damages; including without limitations, emotional damages, punitive damages, inclusive of but not limited to: alienation of affection from: spouse, boy and/or girl “friend”, friends, children, pets, co-worker(s), client(s), customer(s), and any and all other parties effected directly and or indirectly and/or collaterally even if caused by Plaintiff’s inability to deal emotionally with the financial issues; as said issues are and have been caused by Defendant’s fraudulent acts.
19. Defendant knowingly, intelligently, and willfully separated the Deed of Trust and/or the mortgage from the Genuine Original Promissory Note and from the allonge.
Defendant MUST rebut ANY and ALL ALLEGATIONS and/or CLAIMS with specificity, quoting facts and laws; or Defendant thereby stipulates Defendant agree with Plaintiff’s ALLEGATIONS and/or CLAIMS; and Defendant forever forsake arguing against Plaintiff’s allegations and/or claims in any court. Merely denying Plaintiff’s allegations and/or claims are not sufficient to survive a Motion for Default and/or Summary judgment against Defendant.
Pursuant to A.R.Cv.P. Rule 8(d) [F.R.Cv.P. Rule 8(b)(6)] and/or all allegations and/or claims made by Plaintiff MUST be accepted as true by this Court unless said allegations and/or claims are rebutted with a preponderance of the evidence by Defendant. Any and all such avowries and/or averments presented by Defendant must be et hoc paratus est verificare and done under penalty of perjury.
RELIEF PLAINTIFF WISHES TO BE GRANTED:
1. Defendant returns the GENUINE ORIGINAL PROMISSORY NOTE and ALL MONEY PAID [by Plaintiff to Defendants, with a full disclosure of accounting of such] to Plaintiff forthwith;
2. If Defendant is not able to return the GENUINE ORIGINAL PROMISSORY NOTE to Plaintiff forthwith then Defendant is therefore admitting to Defendant’s unlawful attempt to convert real property without cause and/or right.
3. Defendant present to Plaintiff and this Court an Affidavit stipulating that Defendant has NO RIGHTS to the real property in question.
4. Defendant returns DEED and all other documents pertaining to ownership of real property in question to Plaintiff.
5. If Defendant does not STATE THE CLAIM UNDER PENALTY OF PERJURY that Defendant is the CREDITOR in this instant matter, Defendant agrees to accept Judgment by Default in favor of Plaintiff.
6. If Defendant does STATE THE CLAIM UNDER PENALTY OF PERJURY that Defendant is the CREDITOR in this instant matter, Defendant agrees to deliver acknowledgement of such forthwith to the S.E.C. and the I.R.S.
II. Plaintiff has the Due Process Rights as protected by, inter alia, the Fourteenth Amendment of the federal Constitution to rely on the court adhering to, inter alia, A.R.Cv.P., inter alia, and the federal and state Constitutions:
A.R.Cv.P. Rule 1
These rules govern the procedure in the superior courts of Arizona in all suits of a civil nature whether cognizable as cases at law or in equity. They shall be construed to secure the just, speedy, and inexpensive determination of every action.
III. Plaintiff questions the jurisdiction of any and ALL non-judicial proceedings known only to Plaintiff as an administrative procedure fraudulently based on an invalid and unenforceable confession of judgment presumption in the mortgage documents.
Once jurisdiction is questioned and not proven, the court MUST dismiss the action. Plaintiff hereby questions the jurisdiction of any and all non-judicial proceedings instigated by Defendant in Defendant’s unlawful attempt to confiscate Plaintiff’s real property.
A.R.Cv.P. Rule 12(h)(3). Waiver or preservation of certain defenses
A party waives all defenses and objections which that party does not present either by motion as hereinbefore provided, or, if that party has made no motion, in that party's answer or reply, except;
(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.
See: McCorkle v. First Pennsylvania Banking and Trust Co. (4th Cir. 1972) 459 F.2d 243, 244. “At any stage of a litigation, including the appellate, subject matter jurisdiction may be questioned. By failing to do so, the parties cannot confer jurisdiction by consent. If the court perceives the defect, it is obligated to raise the issue sua sponte."
See also: McCready v. White, 417 F.3d Case 1:05-cv-04743; “Ensuring the existence of subject-matter jurisdiction is the court’s first duty in every lawsuit.”
Subject-matter jurisdiction is an issue that must be considered at any stage of the litigation. See 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”); United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir. 2003); BEM I, L.L.C. v. Anthropologie, Inc., 301 F.3d 548, 551 (7th Cir. 2002) (“[S]ubject-matter jurisdiction . . . may be questioned at any time until the litigation becomes final, and sometimes even later.”). Even if the defense of lack of subject-matter jurisdiction is overruled, stricken, or excluded by the district court, it may be reasserted at any time in the action. See: 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350, at 132 (3d ed. 2004) (citing Fahnestock v. Reeder, 223 F. Supp. 2d 618, 621 (E.D. Pa. 2002)).
Once questioned, the Defendant and/or the court MUST prove jurisdiction BEFORE proceeding with a case. This requirement has not been abrogated nor does it exclude non-judicial proceedings.
The non-judicial foreclosure procedure requires jurisdiction as does any matter, judicial, administrative or otherwise. Defendant has attempted to circumvent jurisdiction requirements by falsely claiming Defendant has met for the court the requisite elements of jurisdiction, primarily that Defendant is the Real Party in Interest.
Defendant’s claim to be the Real Party in Interest is false, fraudulent and unlawful. Pursuant to, inter alia, Rule 17(a), Defendant must prove Defendant is the Real Party in Interest, not just claim such.
It is a functional impossibility for Defendant to be the Real Party in Interest without the GENUINE ORIGINAL PROMISSORY NOTE. Ergo, it is a functional impossibility for Defendant to prove Defendant is the Real Party in Interest without presenting to this court the GENUINE ORIGINAL PROMISSORY NOTE.
It is an incontrovertible fact that Defendant is not in possession of the GENUINE ORIGINAL PROMISSORY NOTE, and accordingly, it is an incontrovertible fact that Defendant is committing fraud upon the court by falsely and/or fraudulently claiming Defendant is in possession of the GENUINE ORIGINAL PROMISSORY NOTE.
Pursuant to law and in accordance with Plaintiff’s claims; Defendants MUST present to this court the GENUINE ORIGINAL PROMISSORY NOTE and prove to be the CREDITOR in this agreement or agree to Plaintiff’s demand for Judgment by Default in favor of Plaintiff.
This COMPLAINT is supported by law which is incorporated by this reference as if fully set forth, and which Plaintiff asks this Court to take judicial notice thereof. This COMPLAINT is further supported by the accompanying Memorandum of Points and Authorities.
RESPECTFULLY SUBMITTED:This th day of _______, in the year of our Lord, 2010.
BY: ____________________________, agent
Your Name here, pro se
COPYRIGHT NOTICE: The above-mentioned entity is quoting citations ‘as purported in’ context to copyrighted case law, statutes, rules of court and court decision material as found in books published with Federal or state funding supplied by the Citizens of the united States of America and intended for use by attorneys, and does so under the provisions of the Fair use clause of the copyright laws of the United States.
This COMPLAINT is for the unlawful foreclosure proceeding initiated by Defendant concerning the real property located at:
12345 W. Free ST., in the county of Maricopa, in the city of Scottsdale, in the state of Arizona.
A.P.N. number 666-66-666. Bank of America Loan Number 66666666.
Legal description: Lot 66, McDowell Mountain Ranch Parcel U, according to book 666 of Maps, page 66, records of Maricopa County, Arizona; except all minerals and all uranium, thorium, or any other material which is or may be determined to be peculiarly essential to the production of fissionable materials, whether or not of commercial value, as reserved in patent from the United States of America.
MEMORANDUM OF POINTS AND AUTHORITIES
Diversity of jurisdiction is present in this matter as the real property in question is in Arizona and Defendant and/or other entities involved are in other states and/or countries. Therefore, Plaintiff hereby invokes Erie doctrine and will accordingly use Arizona law and/or may use federal laws accordingly.
Defendants are committing BARRATRY by fraudulently filing foreclosure documents only a CREDTIOR and the Real Party in Interest may file, when in fact Defendants are NOT the CREDTIOR and NOT the Real Party in Interest in this instant matter.
It is a functional impossibility for Plaintiff to “understand” the mortgage documents Defendants used in their unlawful attempt to convert Plaintiff’s Real Property to Defendants’ possession. Plaintiff’s inability to “understand” the “legalese” used by the attorneys who wrote the mortgage documents prohibits Defendants from using said documents as evidence against Plaintiff.
In fact, Defendants’ malum in se act of using “legalese” in a document to unlawfully convert real property is defined in law as “theft through unlawful conversion.”
Defendants cannot now use said documents to convert said property without said documents being used as prima facie evidence of Defendants’ felonious act.
This court cannot use evidence of a felonious act to assist a criminal in furtherance of a felonious act.
See: Black’s Law Sixth Edition:
Understand. To know; to apprehend the meaning; to appreciate; as, to understand the nature and effect of an act. International-Great Northern R. Co. v. Pence, Tex. Civ.App., 113 S.W.2d 206, 210. To have a full and clear knowledge of; to comprehend. Thus, to invalidate a deed on the ground that the grantor did not understand the nature of the act, the grantor must be incapable of comprehending that the effect of the act would divest him of the title to the land set forth in the deed. As used in connection with the execution of wills and other instruments, the term includes the realization of the practical effects and consequences of the proposed act. See Capacity.
Definitions from Bouviers Law Dictionary 1856 Edition: