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“Perfect the Process” Brandon Adams, Gordon Hall & Jack Smith Los Angeles, October 15-18, 2009 Audios: http://www.creditorsincommerce.com/audio-los-angeles-2009.php NOTICE: These Creditors in Commerce Workshop Sessions, hereinafter Sessions, are the private exchange of ideas and concepts between the providers and the recipients. The content is not meant as legal advice. The use or attempted use of any idea or procedure discussed in these sessions as applied to the recipient’s own personal transactions, cases or controversies, or applied to other cases may or may not result in a favorable outcome or the same outcome as is discussed in these sessions. Each transition or transaction, case or controversy may be different as a result of unique actions or unique statements made by the parties therein, and each different act or statement in any transaction affects or may affect whether any procedure or idea discussed in this session is relevant to your transaction or that the outcome thereof will be depicted as in these sessions. The discussion of ideas or procedures in these sessions are not exhaustive of the subject being discussed. Many ideas and concepts that can affect the outcome of any legal or commercial procedure are not discussed in these sessions, and the fact that you may not be aware of these issues may have an adverse effect on the outcome of your procedure. It is the responsibility of each party to understand his own transactions and to apply the appropriate and complete concepts necessary for a procedural and substantive remedy thereto. These sessions may be redistributed privately by any recipient to another recipient requesting them, condition upon the fact that this Notice is provided therewith. If you have any questions, you may contact Brandon by email at firstname.lastname@example.org or by telephone at 702-866-9077. Session 1 Law = contract. Consent makes the law. You are sovereign. It is you who creates and controls the contract. You are the authority. Agree, always. Don‟t argue or be in general appearance in the insane world of illusion (the democracy). Whoever argues in an insane world is insane. Don Quixote fought enemies who weren‟t there. Dishonor is disempowering; control of contract is lost. You are the Authorized Representative (on the private side) who makes an offer to settle a claim. Sovereigns who adhere to the Rules always get remedy. The IRS Commissioner sits on both the private and public sides of an account. This is who you tender the offer to settle to. Did the Commissioner write back and tell you that you couldn‟t do what you did? No, someone on the public side did. The Commissioner didn‟t defend any claim – he agreed with you. You don‟t have anything to defend – no one in the private is opposing you. A public imposter may try to solicit you back into the public – don‟t allow that; don‟t defend any claims in the public because that makes you the surety of public demands (liabilities), losing your suretyship in the private. [You already have an agreement with the Commissioner in private.] Aunt Marge Defense: Nephew tendered a Afv/ RfV financial instrument for settlement and setoff and then got indicted. Aunt Marge said: “Well, did they keep it?” [Yes] Well, then they‟ve been paid. When they keep something under contract law, they‟re in agreement with you. Acceptance is a binding contract. Anything else that subsequently comes in is merely a test. If they send it back, that‟s good too – there is still discharge of the amount that was tendered, pursuant to UCC-3603. Proof is based on belief; belief is based on your experience and your own faith & confidence. You cannot compel that faith & confidence in another. Nothing can be proved. Offers and acceptances create binding contracts. When offers come at you, be in honor. Fully accept or conditionally accept (counter-offer). Counter- offers have the legal effect of rejecting the offer and making a new offer to the offerer. This gives them the honor of the power of acceptance. “I am a creditor because it is my spiritual endeavor to solve people‟s problems.” Generally, in the first round, you do a full acceptance; conditional acceptance after that. The assumption may be that you‟re going t come back on the liability side like everybody else (employee), but you know you can set off on the private, asset side as well (as a sub-contractor). Only parties to a case (STRAWMAN defendant owned by the government) or an attorney (licensed by government) can file a motion on the public side. If you file a motion, you can only be the plaintiff, defendant or an attorney in public. Private remedies are not allowed there. The only way to have standing is to be an outside (private) party representing a real party of interest that doesn‟t formally register (in the public) to appear. Private correspondence is not filed; it is tendered and marked received as a private communication with the judge. It won‟t appear in the public file of the clerk; it will be in the judge‟s private file which he can see in his chambers. If the clerk wants to file it: “Ma‟am is this not tendered on the private side, sent to the judge as a private matter? Would you be so kind as to stamp my copy as received; please stamp the court copy as received and direct this as a private communication to the judge? If she refuses: “I conditionally accept upon proof of claim that the judge has given you authority to intercept his private communication with another entity in this action. Certainly you can act privately in this matter on condition that you accept responsibility and liability for the prejudice and damage that you cause the real party of interest that I‟m representing as authorized representative.” “I want the Plaintiff to show cause why this matter should not be dismissed.” The court does not move itself. You have to take and be in control and move the court yourself. The judge may say: “Well, Mr. Doe, I‟m going to appoint an attorney for you before you hurt yourself.” Presuming you already had your administrative remedy in place to settle the matter, you can say: “Are you suggesting that I can‟t resolve this matter directly without an attorney and receiving public benefits when my private record has already settled this matter?” He has to say “No”. You can say: “Let the record show that there is no opposition or objection that this matter has been settled on the private side.” They have agreed by their silence. You can move the court with a call to action, an order to show cause why this case shouldn‟t be discharged [not dismissed*] and closed if they cannot state a claim upon which relief can be granted – “I motion this court to dismiss this case with prejudice”. Because we have this agreement, this is what I want you to do – you can‟t just say you have a private agreement – you have to tell them what to do. The judge is only a ref. *You come in as surety to pay the account. Discharging completes the accounting. At all prisons and jails, you have an R&D (receive and discharge). Released (supervised – probation; leased) is not as good as discharged. When you‟ve discharged the debt, you‟re the only one there with standing. Actions speak louder than words. Don‟t disqualify your asset settlement by reverting to being a debtor. If the judge says that everything you‟ve done has no force or effect (an offer), don‟t argue the facts – go into pleadings and put in a private, contractual counter-offer; or, orally, just say: “I accept your position upon the condition that you provide proof of said claim in the form of an affidavit signed under penalty of perjury. If you cannot provide such proof of claim, then you are agreeing that you have no claim and thereby have agreed that this matter has been settled and therefore will be issuing an order for the discharge of this case. Is there any objection to that?” OR I conditionally accept that you‟re rejecting the offer of the surety on the private side whose record appears in this case on proof of claim that by my appointment now of you, Mr. Judge, as the trustee and banker in this matter to set off and settle this claim before the court, you‟re not going to assume personal liability if you do not set that claim off.” What happens when a trustee who has a public office doesn‟t perform his duties as a trustee? When he runs out of the room, you can say: “Let the record show that must have accepted the appointment to carry out the task because I have heard no objection or counter-claim.” Stop arguing; stop charging as a debtor. You have the authority to win your case. Counter-offer them to bring your win back on top. Creditors don‟t have defenses or excuses. [Jack Smith:] Knowledge (of the facts) is legislative; [God the Holy Spirit] Wisdom (putting the facts into motion) is executive; [God the Son, Jesus] Understanding (being able to show that the knowledge and the wisdom are in harmony) is judicial. [God the Father, come to judge] Conscious = Awake to one‟s surroundings and identity. [Webster‟s] Creditors are pro-active; debtors are reactive. Creditors maintain authority; debtors grant authority to others. Session 2 Authority must be granted and conveyed. No one automatically has any authority over a sovereign human being. Be cautious in giving a name or a signature or otherwise identifying yourself (giving fingerprints, etc.). If arrested, don‟t allow them to book you. Booking is a ledgering of an asset as surety for the charges. In order to get (subject matter and territorial) jurisdiction over a case, a maritime court needs to seize the vessel (STRAWMAN). They want you to voluntarily surrender it by you giving a name. They call “Doe”, referring to the bankruptcy estate for which John Doe is the trustee for. “I will not be availing myself of your services today.” Guard shouts “Get up!” John responds “By what authority?” Guard: “Are you willing to give us fingerprints and a photo, yet?” John: “I accept your offer to grant and convey to you a security interest in my property upon the condition that you present a bona fide claim [a sworn statement that someone’s been damaged] and/or consideration.” Sergeant: “What kind of consideration?” John: “$10,000 should be sufficient.” Security interest = a lien on personal property created by an agreement (either explicitly or tacitly) Whose property are your picture and fingerprints? Sergeant: “This is your last chance – are you going to give us fingerprints, a picture and a signature?” John: same CAfV, plus “If you, without my consent and against my will, take from me my property, I will in no way physically resist, but it will cost you.” Back in the booking room: “I am hereby giving notice that I am not granting or conveying any interest in any property. I am here under threat, duress and coercion. These officers have threatened my welfare, well-being and my life.” To the booking officer: “I will not give you my fingerprints and picture. However, if you choose to take them, I will not resist. It will cost you.” They do not have a (voluntary) surety for their charges. All charges (two felonies and a misdemeanor were dropped and John was let go. There is no express contract if you don‟t give them your name. There is no implied contract if you don‟t acquiesce by silence, acts or signs. You are the Authorized Representative of the Secured Party Creditor who can set off on the private side. The judge is a ref, a facilitator. Contracts are fluid, dynamic – they move (when you make them). Second chances are available. It‟s OK to make mistakes – just get back on track. All relating is continual contracts. Call to action: “Well, then this matter‟s settled. Is this court not ready to adjourn and submit this matter under law (contract) to an issue of an order to discharge the defendant and discharge the United States claims?” A summons is an offer. “I will come in and let the court decide this case upon the condition that the decision or ruling or judgment will be in accordance with the administrative record, attached hereto and incorporated herein in its entirety, of set off, settlement and closure of this matter.” Upon being ordered to enter the Bar: “I‟ll come in, Judge, upon condition that it is as intervenor for the purpose merely helping the parties settle all claims or charges or in accordance with the record and pleadings that were submitted by a conditional acceptance when summonsed to this court and hereby reserving all rights and remedies.” Trial courts deal with facts in public policy. Public policy doesn‟t recognize your private set off. Settle the facts in the court of 1st instance. Did the CEO agree with your facts by ignoring you? Appellate courts deal with the law (which includes law from the Republic as well as the democracy). Factual record cannot be changed by appeal. Get remedy by seeing how the law applies to the facts. Appeal as of right (within 30 days of the date on the letter), not of privilege. Settle the law in the court of 2nd instance. Response to unsigned A/R dept. refusal letter: CAfV upon proof of claim that upon appeal in the decision of the appellate department within their organization that this matter should not be set off, zeroed and closed. Everyone is copied so they know you‟re on appeal. Here‟s my appellate proceedings – you should take no further action until the appellate decision is made. Session 3 There‟s always a 3 part process: 1. [Legislative (Intent to contract)] The bill (offer) came from the public side to your public side (liability units, liability money). When we do an acceptance, we‟re changing the jurisdiction of the payment. We deal with the CFO (or CEO) because he or she can be both on the private and public side of his or her corporation, as can we. Nowhere on the bill did they say we had to use public funds or that we couldn‟t use private funds. The CFO in the County government might be the County Auditor. This is a game of hot potato. If you keep their document, you are the trustee (with liability and obligation to perform). If you AfV/ RfV (set off) it to CFO – CFO is the trustee who has to deal with it. Sovereigns authorize things to happen; we delegate. We‟ve tendered our consideration which is our performance in the contract to be, which will be a full contract once the CFO acquiesces to it. He should send you a receipt, but probably won‟t so what is still unsettled is his performance on the contract – see part 2. When dealing with the living, you have to send back originals (original bills). Red AfV at 45 degree angle in upper left corner with blue signature. Some put a $1stamp (Red Fox is best – 2 vertical bars on $ sign) on the top front and the bottom back. The substance of the process is that they want, say, 1,000 units in either liability or asset money; the procedure of dealing with the 1,000 units is the form of the process, which can vary. Though the product may be in the real world, the receipt, the piece of paper, is the title in the fake world. (You didn‟t buy a car – you bought a piece of paper, the title, with another piece of paper, the payment. The car is the promotional item that comes with the piece of paper.) Black-robed judges are (ecclesiastical) priests. When you AfV/ RfV an indictment (offer) or any other charging instrument (ticket, etc.) back to the court so that the judge priest will forgive any violation the STRAWMAN made against the statutory codes. It is a heave offering, like a Hail Mary pass. When the court issues a settlement & closure on the court case, your receipt is your forgiveness. “Please release the Order of the Court to me.” The receipt is the title and now you‟re the owner of that title and the creditor in the court case. You have equitable title if you paid with public, liability funds – you have ownership (use & possession) interest, but the owner is the debtor; the trustee is the creditor; you have full, legal title if you paid in asset money. Equitable title is divided title, which is evidence of a trust. The public economy is a zero sum game – for every winner there‟s got to be a loser. Money is created only when someone obligates themselves to a debt. Trust in God and do not give up legal title to the gifts He gives you. Possession is 9/10ths of the law – legal title (control) is that other 1/10th. You get what you pay for. If you paid with liability funds, you‟ve given equity (equitable ownership) but not substance. You have rights if you‟re in control. You‟re in control if you have rights. You only have privileges if you‟re not in control. A mere owner is a debtor with no assets. Supreme Court Justice Bork said that everyone in jail volunteered to be there. 2. [Executive (carrying out the intents of the contract in the real world - performance)] Every communication in commerce has to be responded to, always with agreement of the parties in mind. Your dealings with CFOs are supposed to be private and confidential. If the CFO sent your correspondence into the public side, the CFO has dishonored, but agreed with you. Don‟t you dishonor the CFO by arguing with the public. If there‟s failure of performance by the CFO then we don‟t yet have settlement & closure. He hasn‟t returned the AfV/ RfV so he‟s agreed, but within 30 days the account should have been ledgered and you should have received a receipt. Performance is compelled with another letter – Mr. Partner in this contract, please perform your duty and ledger this account. “Attached hereto and incorporated herein is a copy of Letter A and the agreement we intended to carry out as well as a copy of my tender of the AfV/ RfV with voucher in which I have performed my duties under the contract. I am giving you three days from receipt hereof – is it your intention to carry out your duties in the contract and cause the order of the court to be released to me; i.e. are you going to ledger the account and are you going to release to me the receipt?” It‟s a constructive trust, and failure of the CFO to perform is a breach of his fiduciary duties. Deal with the public department as well, but only in a way that doesn‟t abrogate your contract with the CFO. 3. [Judicial] You are a party to the contract; you cannot judge it by yourself. For that you need a 3rd party witness. 3a. Certificate of Protest. Witness (notary) agrees that we are in honor and that the CFO should ledger the account. A certificate of protest is issued in favor of your STRAWMAN. Your Certificate of Protest is a security; it is private – don‟t put it into the public. Living man is the Authorized Representative moving the Tin Man for the set off. Certificate of Protest = Administrative Judgement = Receipt for the Claim. If CFO does not respond to the Notice of Protest within three days, he has agreed that the Receipt is valid. The protest matures in three days. Due process of law and equal protection only requires Notice and Opportunity. Under Rules of Evidence, all affidavits are hearsay. The Notary Certificate of Protest is admissible as evidence. Notary‟s records are an exception to the hearsay rule because it is the notary‟s job and duty to keep such records and they are not a party to the matter. I the CFO retained the instrument that you sent him, but didn‟t process it and/or credit it, he is personally liable for the amount of the instrument to the party who tendered it. 3b. Appeal. The notary is your appellate officer – he or she, via the protest documents, presents your claim to the public. Appellate Board or Court Hearing. The hearing is not evidenciary – the facts are already established. You want a pleadings hearing. In a criminal case, you might say: “Your honor, I accept and return for value all the charges for settlement and closure and I‟m willing to become the underwriter or surety in this matter.” The pleading hearing is a series of contract negotiations. At the end of the hearing, you want to close out the account and go home; the prosecutor doesn‟t want to let you do that. Conditionally accept. If the prosecutor puts in a Foretta motion because he thinks you‟re nuts and need a competency hearing: “Sure, upon proof of claim that the record of settlement, set off and closure by the authorized representative does not make that matter moot… and if you cannot provide proof of such claim, you are thereby agreeing that this is so.” OR “I accept the offer for the Foretta hearing, conditional upon proof of claim that the offer of private settlement, set off and closure from an open account, to protect the public from any further liability in the matter, comprises or constitutes proof of incompetency. “ “Otherwise, please release the Order of the Court to me immediately.” [an offer and a call to action] All crimes are commercial and everything is civil. (27CFR72.11) Notaries must keep a record and they are not allowed to release any record to anyone unless they get authorization from the Sec‟y of State and the record is specifically identified. In the Republic, substance prevails over form; In the Democracy, form prevails over substance. Your friend can witness a non-response and provide affidavits of mailing and non-response. To get a Certificate of Protest, you have to start and finish with a notary. Try your criminal or civil court case prior to the public going to trial. Settle and set off the court case by agreement. Certificate of Protest is the settlement if you‟ve covered all the issues and acted meritoriously, submitting 3a in chambers to the judge, asking the judge to do the 3b ratification based upon the record that you‟ve submitted. from the New Testament: “Agree with your adversary before you go before the magistrate.” 1. Write the contract. 2. Set off the accounts (AfV/RfV). “Please give me the agreement and write me the receipt.” 3a. Submit notary record in chambers (private side of the court) to the judge. Star Chamber Proceeding Court is a court in which the judge views the record of the evidence and makes his judgment in chambers, in the private, not the public. Meet the judge in chambers as the creditor. You hold the security interest. The judge is to hold it privately in chambers. He will be a trustee on your behalf to submit 3b (protecting your rights). When the judge comes out of his chamber and into the court; when the bailiff says “All rise”, why does everyone have to rise? Because it‟s a public session and it‟s all debtors – all the Scarecrows have to rise. Understand the difference between public and private. “Has not this court got the record of my set off, settlement and closure? I am requesting that this matter be closed and that the Order of the Court be released to me immediately.” Have and demonstrate the capacity and competency for self-governing. Be responsible and do your part to bring back the Republic. Session 4 Gary Jones: Discharging mortgages and preventing foreclosure mortgage = lien against property that is granted to secure an obligation (debt), that is extinguished upon performance according to stipulated terms. lien = claim on property of another for security of the payment of a just debt. obligation = legal or moral duty which renders a person liable to coercion or punishment for neglecting it. We paid for the property with our promissory note and then turned around and pledged it. Everything in commerce has a trust relationship which is sometimes hidden, sometimes not: trustor, trustee, beneficiary. Mortgage Contracts require: 1. Two parties of legal age and sound mind; 2. Offer; 3. Acceptance of terms & conditions by both parties; 4. Consideration; 5. Expiration date. After closing of escrow, you get a Deed of Trust Trustor = Borrower The definition of borrower on a lot of Deeds is JOHN DOE. Seize = hold title for the benefit or use of another It says on the promissory note: “In return for a loan that I have received, I promise to pay…” You didn‟t get a loan from them – you funded the loan. Judicial State: In order to foreclose, lender must file a lawsuit. Non-Judicial State: Trustee has the power of sale – he doesn‟t have to go to court to foreclose. CA is both – the lendor has to choose at the close. Foreclosure = termination of all rights of the mortgagor or his grantee in the property covered by the mortgage. Foreclosure begins with the trustor (borrower) not making the monthly payments to the beneficiary (lendor). CA non-judicial foreclosure under deed of trust: The first non-payment is technically a default. Many people think that you have 3 months, but the lendor could start foreclosure immediately – he usually doesn‟t start immediately because it isn‟t yet cost effective. The minute you make payment, although late, you‟ve cured the foreclosure, so they usually wait three months. The beneficiary instructs the trustee to begin foreclosure proceedings. Trust Indenture is a fancy word for contract. At a closing, you sign the deed of trust and the note. You are the creator – you are the one responsible for them. You are the grantor/ settler/ trustor; lendor is the beneficiary; lendor picks the trustee. Day 1: You get a Notice of Fault filed in the County record. Within 10 business days, they mail a Notice of Default (NOD) to your address and give public notice, usually via a newspaper. In a non-judicial State, after three months, they set a trustee sale date. 25 days before the trustee sale date, often they send a notice to the IRS. [4506T] Within 10 days of the first publication of the trustee sale, the trustee sends you a request for property directions. “We‟re scheduled to go to a trustee sale – are you sure you want to do that?” Lendor says “yes”. 14 days before the trustee sale, they record a notice of it, which they also send to you. 7 days before the sale is when you have a (public) court action if you want to stop the trustee in that way. 5 business days before the sale date is the expiration of the buyer‟s right to reinstate the loan. Reinstatement is what your lendor says that you owe in arrears. If you write a check, they shut the foreclosure down, because you reinstated the loan. At the sale date, the property is sold to the highest 3rd party bidder or reverts to the beneficiary at a public auction. CA Code 2924 cb1 says what they must do. Auction can be postponed by the beneficiary (lendor) for up to one year. At the auction, it can be sold to the bank. The bank sends the default or judgment amount to the trustee – principal balance was x; we spent y,z,etc.; if someone offers more than this sum they can buy the property. If it goes to auction and it goes back to the bank, the bank is issued a trustee‟s deed. A trustee‟s deed upon sale is like a quit-claim deed. The trustee is granting and conveying their interest in the property to the other party. What is their interest in the property? None. Ed may have no interest in Ned‟s property, but Ed can go to the Co. and file a quit-claim deed on Ned‟s property, granting and conveying Ed‟s interest (nothing) to Ted. If Ed convinces Ned to get out of his house by, say, giving him a 3 day notice to vacate and then serving Ned with an unlawful detainer, the judge asks Ned: “Did you respond to the 3 day notice?” If Ned says “no”, the judge will tell him that he‟s out. Now Ed has an intreest in the property, because he has possession. What got granted and conveyed to Ted? Possession. In a quit-claim deed, if there was no interest to convey, any interest obtained by the party who is granting the interest, after the quit-claim deed, is then granted and conveyed to the person on the quit-claim deed. Same thing with a trustee‟s deed upon sale. When they file the trustee‟s deed upon sale, they have nothing to grant and convey – they convince you to get out of the house – they take possession, and that‟s what gets conveyed. Whatever 3rd party buys the property at auction, gets only what interest the trustee had. When you got a 3day offer to pay or quit, that was only an offer to leave the property that you own. It might be best for you not to abandon your interest in that property. Possession is 9/10ths of the interest in that property. Non-response is agreement. The judge will only insure that the unlawful detainer process was done correctly (their two witnesses witness only delivery of 3day notice and delivery of the summons & complaint). Unlawful detainer is not about title. Nobody testifies that the trustee had any interest to grant and convey. When you get a 3day notice to quit, conditionally accept. Way before then, it would have been better to put a game plan together in the private. In California, mutual agreement via administrative process (offer & acceptance) could have happened between you and the lendor to have postponed the foreclosure for up to a year. How can the bank be a beneficiary (lendor) if they didn‟t loan anything? Good question, a private one, because in the public it is perceived that they did. In the private, they didn‟t loan you anything. Trustees have to have certain things in place to fulfill the trustee sale. Sometimes the beneficiary may not have provided the trustee with all of the information that he needs, so the trustee will postpone the sale. This is called operation of law and is rare. Foreclosures can also be cancelled when you assert your private remedies. operation of law = manner in which rights and sometimes liabilities evolve upon a person by the mere application to the particular transaction of the established rules of law without the act or cooperation of the party him or herself. You have the advantage of an operation of law if the judge perceives that something is going on that you didn‟t have anything to do with that is causing harm to you (for example: fraud). In a judicial State, in court, this has a greater possibility of kicking in. Judges are facilitators. doctrine of estoppels or latches latches = failure to be timely; inexcusable delay in enforcing a claim Remember it‟s about contracts and claims. At the trustee sale, trustee will issue a trustee deed. You get a 3day notice to quit and vacate (an offer). If you want to keep the house, you better respond quickly. Then you could a summons for an unlawful detainer hearing with a 5 day response time. Now it‟s tricky, because you‟re in (public) court. The law requires them to bring you before a judge to determine whether or not you are lawfully occupying the property. The foreclosure is complete. 90% of the time they will rule against you at an unlawful detainer hearing, giving the “property owner” a writ of possession of your property. After being presented with the writ of possession, the Co. sheriff will give you 5 days notice to move out. Eviction. IRs lien is ahead of a bank lien. The government comes first. That‟s one of the reasons for the escrow. When you close escrow, a transaction account (not the same as the escrow account*) is created, solely to fund your closing transaction, in which they use your signature on the promissory note to get the money to pay for your deal. They never use their own money. Because of that, you technically own the property. However, this transaction does not make you the tenant, just the owner. * Your tendered promissory note is technically a liability to the bank; an asset of yours. You‟re giving them something; they owe you. But, they don‟t book it that way. They book it as an asset, which allows them to go to the Fed window and draw down more money. The Fed says – you can do that but you must put money in reserve, an escrow account. [This is what you OID.] You have a deed of trust and a promissory note (the money). 30 years from now when you‟ve made your last payment, you‟re supposed to get your note back stamped Paid in Full, but you never do because they never have it anymore. They‟ve clumped it with others and sold it many times. 30 years before that; knowing that going in to the closing – knowing that the closing agent is going to give you copies of everything, ask for two copies (neither of them with COPY stamped on them – or make a new copy with their stamp taken out) of the promissory note before you sign. Put a wet signature on both. Give one to the closing agent. Technically, the only one who can maintain claim to the alleged debt is the holder-in-due-course of the note. Later, when you get behind in the public and you‟re pretty sure that the bank has sold the note – you‟ve got one with a blue signature on it. You‟re the holder-in-due-course. Sign as the Settler rather than the borrower and record it at the County. You‟ve just done a reconveyance. Another strategy: At the closing, you have 3 days to rescind. Rescind. In California, you sign the documents on day 1; the bank will fund by the following day; they record and you get your keys the following day. In Oregon and other States, you get the keys when you sign the note. When you sign a re-finance, that is when they hold on to the money for three days. You get approved for a loan. You sign two notes, keeping one as an original. Sign all the other documents. They open a transaction account to fund the deal and pay your seller who leaves the room with a check. The bank has your paperwork; you get the keys. Two days later, send them a Notice of Rescission. You changed your mind. Deed of Trust In Paragraph B, borrower is connected to settlor or trustor; Paragraph C is the lender; Paragraph D is the trustee; Paragraph E is the beneficiary. Based upon the Deed of Trust, you are the trustor. Being as you are the creator of the trust, you can change it. Substitute the trustee with someone who is working on your behalf, such as your grandmother. You gave the bank POA to work on your behalf and they originally established the beneficiary, but your trustee could change the beneficiary. Always start your private administrative process with a notary. Get a good notary and hang on to them. Become a notary so you can help other creditors. Revoke the bank‟s POA. It‟s not on the Deed of Trust because the Deed of Trust is a public document. Through your notary, give notice to all parties involved. In most States, when you do a Revocation of POA, you have to record it in the County that you originally granted power to them in (the County where the property exists). The trustee controls any trustee sale, so you have to keep the trustee from doing his job in the public. You can‟t fire him in the public; you have to fire him with a private remedy. Deal in private with the CFO and get your process started as early as is possible and pertinent. It can take 30 to 90 days to complete your administrative process to where you‟re holding the judgment, especially in a non-judicial State. Whenever you make a final payment, get a release of lien. Record the Release of Lien because the Co. Recorder controls the title and chain of title. If you have trouble with the county Recorder, have your notary mail the documents in with instructions to record and they will record them. The notary is an officer of the court who works for the State, which is above the County. “Borrower irrevocably grants and conveys to trustee in trust with power of sale.” It doesn‟t mean the trust is irrevocable; it means the power of the trustee is irrevocable. You still get to choose who the trustee is, you just can‟t take their power away. Exercise your right to cancel. TILA says you have three years to review the disclosure documents. TILA requires the lender to do certain things (such as give you full disclosure which they never do) to trigger your 3day right of rescission. If they don‟t do those things, it can be extended for up to 3 years from the time, for instance, when they give you full disclosure. You don‟t want to participate in the fraud, so you decide to exercise your right to rescind. Bankruptcy won‟t stop a foreclosure, but it will delay it. It‟s illegal for a trustee to knowingly sell a property without permission; it‟s called grand theft. When you send notice of trustee termination to the trustee and you can verify it by it‟s recording and proof of mailing through your notary and you do all this prior to the trustee sale, they should postpone, if not cancel the trustee sale. You can check on line if there‟s going to be a trustee sale. After you‟ve substituted, revoked, rescinded, cancelled through your notary, the notary will do their presentment –default, protest, certificate of service…request of the CFO that your credit be clean, money and release of lien (you already paid for it). Black marks are on your credit report only because you were induced into a contract that was fraudulent. They never loaned you any money. If the closing date was on the 18th and you signed on the 15th and they show where the money‟s going on the 16th it‟s because they create a transaction account with ledger entries based on your note. They can be fined for up to 3x the face value of the note per count of fraud. They can go to jail for up to 3 years per count. Ask for the money. Title insurers insure that you have good, clean title. They depend heavily on the County Recorder. It is the County Recorder‟s responsibility to maintain the chain of title. Getting a Release of Lien is part of your negotiations. The process you may use can be based upon your ability to expose the fraud. “Dear Mr. Banker, I know that you committed all this fraud – you can go to jail and be fined. Tell you what, I won‟t tell the judge if you pay me. Also, being as I signed the promissory note, you already got paid 10x anyway, so stop being so greedy.” You‟re in position to give the judge this information in the private world and your banker knows that. Often, you can get your remedy without court. Canadian notaries have to be BAR members, so in Canada, use two witnesses. Affidavit of Mailing becomes your Certificate of Service. Session 5 A trust is a contractual relationship. Grantor or Settler places something of value, which becomes the res or corpus of a trust. Simple trust relationship could be: grantor put property into possession to the trustee, with indentures (instructions as to how to operate the trust). Grantor trusts the trustee with the property and the trustee manages the property for the benefit of the beneficiary. Like a contract, a trust can be expressed or implied. There need not be anything written down. Trustee is not obligated to disclose the nature of the trust or that the trust exists at all; sometimes grantor and trustee are in cahoots with an agenda. “Here, take this school loan…” There is no such thing as a free lunch. When you accept a benefit, you may be accepting undisclosed conditions or terms. In the booking room: “I will not be availing myself of your services.” They don‟t have to tell you that, by accepting a benefit, you would be granting and conveying interest in your property (body, assets, etc.). By giving photo and fingerprints, you create a transaction of a security interest or a lien on your personal property created by an agreement (verbally or by signs or by acts or by silence). Then they can proceed to offer you benefits, like a nice, cozy room. The ultimate benefit is limited liability; it just costs the beneficiary his or her freedom. You won‟t have to pay for the use of that room. Dissect: Who‟s the grantor? Who‟s the trustee? Who‟s the beneficiary? In an express trust especially, the beneficiary (has a right to) can compel the performance of the trustee. Parents (grantors) hire a baby sitter (trustee) for their kids (beneficiaries) – an implied trust. Parents gave some instructions (indentures) to the babysitter that the children were not privy to; after all, the baby sitter was given control. The parents instructed the babysitter to feed the kids if they were hungry, as long as it was before 8pm – if any kid cam to the babysitter complaining of hunger before 8pm, the babysitter is obligated to feed them. Rights and duties are correlative. The extent of one is measured by the scope of the other. You have rights to the extent that you are performing your duties. Trespass loses rights. Sovereignty is protecting your brother‟s rights. You can‟t compel your brother to treat you as a sovereign, but you can love your brother, obligating him to treat you as a sovereign. In a trust, there is divided title. There are about 85 different statutory trusts (501c3, living, etc.). What lawmakers put together, they can also dismantle. You can create your own contracts and trusts. IRS recognizes only trusts that are registered. Trust Restrictions: At least two parties are involved in a trust – divided title is necessary. Grantor can be the beneficiary. Trustee can be a beneficiary. Grantor can be the trustee and one of the beneficiaries. Establishing status with documents is secondary to establishing status with actions. Documents don‟t make you sovereign. Conduct determines who you are. He who fails to asset his rights (not prove you have rights), has none. Contracts are fluid, don‟t tell me who you were a moment ago (document); tell me or show me who you are now. The forestry service thought Brandon was debtor (when he handed over his I.D.); Brandon became a creditor in the jail. Act your status. No one can take your spirit or soul without you giving it. Anyone who is served and holds legal or commercial paper (such as a summons and complaint) that comes with a duty to perform (to answer to the clerk of the court, for example) is a trustee in the matter. The plaintiff in a court case (grantor) becomes also the beneficiary. Whenever something is received, an obligation is created. In a court case, defendent is a trustee debtor, holding a duty. Plaintiff is a beneficiary. When an offer is made, a trust is established; when a counter-offer is made, the trust is inverted. First 13th Amendment: No titles of nobility (attorneys) on the private side. Second 13th Amendment: No involuntary servitude in the public. A democracy is a military government. The President is the Commander in Chief. the military is filled with titles of nobility. In the Republic there are to be no standing armies in times of peace. Posse Comitatus: military can operate as a law form in the Republic. Outside of the Republic, how can the Constitution be violated? The people were induced to leave the Republic and join the attorneys in the democracy. In the Republic, the lights are still on, but nobody‟s home. The grantor has the power – he can change the trustee and the beneficiary any time he wants to unless the trust is irrevocable. With the government, Mom (grantor) set up a trust for you called your STRAWMAN, a beneficiary of the public trust. The Articles of Confederation are in full effect today. The Constitution added to them; it did not repeal them. Government operates on borrowed funds based on the pledge of security interest. Who has control over the school house that the government built? The creditors. Creditors issue certificates; debtors hold them. When a summons & complaint (certificate from the clerk of the court) is held by the defendant, the defendant is a debtor. To be a creditor, issue it back to them so they can hold it. DTC (keeps the records, legislative), IRS (determines which property rights are private, which are public - judicial), FRB (transfers the commercial energy – executive) all have both private and public windows. Everything in commerce is represented by 3 things: principal: owner …to the corporation (debtor) surety: controller …to the surety (creditor) signature: living person energizes the tin man and conveys the currency from the dtc/frb… Own nothing (don‟t be the principal), control everything Session 6 The private can be aware of the public; the public cannot be aware of the private. The bank understands that the power of their process came from your promissory note. Stop a foreclosure by setting off the deficiency in the drawing account with another promissory note. They took the first one; are they going to reject the second one? They‟re not foreclosing on the note – the note is yours – you‟re the creditor. In court, that note is evidence that you are the creditor. “Your Honor, they‟re not foreclosing on this note – they‟re foreclosing on the contract that was signed on the left hand side.” Give them a 2nd note (tendered to the CFO of the bank) and put private notice of that note into the judge in chambers and tell the court to set off the foreclosure claim and discharge the case. UCC says a negotiable instrument or a note given in tender to set off an antecedent debt, sets off that debt to the amount of the face value of the note (and cancels all underlying contracts, i.e. mortgage or trust deed; all collection costs and interests stop – it is pure principal). So, if your original debt was, say, $500,000 and they are foreclosing for $250,000, make the 2nd note out for $500,000, more than setting everything off. The consideration of the 2nd note comes from the consideration of the 1st note, so they can‟t argue that there is no consideration. They took the first note. UCC also says that a debt tendered and refused is a debt discharged or paid. Remind them of that. In private hearing: “My private record of set off, settlement & closure is before this court. At this time, I request that the court release the order to me. I want the court to issue a discharge [not dismissal] of the defendant to set off, settle and close the accounting and discharge this case.” common law lien = raw possession of a property as surety for a debt owed. Launderer has a common law lien when he won‟t give customer the clothes back until payment is received. Court: Judge: “We call the case of the State of CA vs. Doe.” John Doe: “Good afternoon, your Honor, I‟m here as John Henry Doe, 3rd party intervener, for the purposes of assisting you with the settlement, set off and discharge of this matter. May I enter the BAR while retaining my…” Prosecutor: “A little court decorum – you do understand the rules of court around here?” John Doe: “If I do not understand the rules of court, will that affect the outcome of this matter?” Prosecutor: “Yeah, we might need to see if we need to get an attorney appointed to you… your Honor, Mr. Doe has written, in my opinion, a false financial instrument – there‟s a little problem here – he‟s actually charged with another crime, but I think we‟re going to have to charge him with another one.” Judge: “Sir, you have been charged with _____; this hearing today is for the purpose of pleadings – sir, will you please enter the BAR?” John Doe: “Are you addressing me, your Honor?” Judge: “I am addressing you, sir – are you Brandon Adams?” John Doe: “Are you presuming that I‟m the defendant, your Honor?” Judge: “Are you John Doe?” John Doe: “I‟m here as the 3rd party intervener, John Henry Doe.” Judge: “OK, so then you are John Doe… John Doe: Are you presuming that I‟m the defendant?” Judge: “I‟m not presuming anything – I‟m asking you a question… Prosecutor: “Please excuse me, Judge… if Mr. Doe is not in the room, I suggest that we issue an arrest warrant for him.” Judge: “I‟ll find out one more time – Sir, are you John Doe or are you not?” John Doe: “I am here as John Henry Doe, 3rd party intervener, for the purpose of assisting you in settling, discharging…” Judge: “OK, I‟ve asked this question two or three times – if you‟re not John Doe, I‟m going to issue a warrant for his arrest.” John Doe: “Your Honor, I conditionally accept the issuance of a warrant for the arrest of John Doe, the defendant, however, as the paramount security interest holder in all of the property of the defendant, would it not be in this court‟s best interest to allow me to assist you in the settlement, set off & discharge of this matter?” Judge: “Sir, do you understand that this court wants the assistance of everyone who is a party – John Doe is a party to this matter, but you‟re not indicating to this court that you‟re John Doe – now, you‟re taking up a lot of time here – I‟m going to give you one more opportunity to answer my question: are you John Doe or should we put out a warrant for his arrest?” John Doe: “You‟re Honor, I accept your offer to issue a warrant, upon the condition that, as the paramount security interest holder to the defendant‟s property, it would not be in the court‟s best interest to allow me to assist you with settlement, set off & discharge of this matter.” Judge: “OK, I‟m just hearing the same thing over & over again – marshalls, escort this gentleman, whoever he is, to that chair in the back and we‟ll get to him later on…” John Doe: “I‟m hereby giving notice that any unauthorized physical contact will be met with a $10,000,000 liability on each of your public hazard bonds, individually and severally, including this court.” Presecutor: “Judge, is he threatening…” Judge: “Marshall, without putting a hand on this gentleman, escort him peacefully over there to sit down – if he does not obey, this court will hold him in contempt and you have authority to arrest him. Now, go over and sit down and we‟ll call you later.” John Doe: “Your Honor, would you mind if I have a seat until you call this matter at a later time?” Judge: “Please, sir, just go sit down.” Perhaps better would have been to counter the judge‟s offer with the request that this be adjourned right now. Protect your rights. Do not let it be construed that you are obeying any order of the court, because then in personam jurisdiction could be presumed. Judge: “Are you an attorney?” John Doe: “Would it be OK if I told you I wasn‟t?” Judge: “How is it that you‟re representing someone without being an attorney? Do you understand, sir, that you do not have the capacity to represent someone unless you‟re an attorney?” John Doe: “Your Honor, as 3rd party intervener, would it not be possible for me to assist to settle and close this matter as a creditor?” Judge: “Do you understand the seriousness of these charges?” John Doe: “Judge, I accept your offer to understand the charges, conditional upon proof of claim that the record of settlement, set off and closure wouldn‟t make that matter moot.” Judge: “Then you‟re indicating to me that you do understand the charges?” John Doe: “Judge, I accept your offer to understand the charges, conditional upon proof of claim that the record of settlement, set off and closure wouldn‟t make that matter moot.” Judge: “Do you have an attorney to represent you?” John Doe: “Judge, I accept your offer of wondering about counsel for me, conditionally upon proof of claim that the record of settlement, set off and closure by the authorized representative hadn‟t make that matter moot.” Judge: “Do you understand that these are criminal charges and that you are attempting to look at this whole proceeding as though it‟s just some kind of a civil case; that you‟re going to make some sort of a payment to the court and they‟re going to go away? Isn‟t that like bribery? These are criminal charges – you can‟t just make a payment to the court and have these go away. Sir, do you understand the Rules of Federal procedure herein?” John Doe: “Judge, I conditionally accept any of these offers based upon proof of claim that the record doesn‟t show that they are moot. Are you not ready to ratify the private settlement of the parties? Are the parties not in agreement here?” Judge: “Mr. Prosecutor, have you had any indication that this particular defendant has any problems mentally?” Prosecutor: “There is no statute that allows what she is referring to – there‟s nothing in Title 26, Title 18 or, matter of fact, any other title that allows her to do this and act this way.” Judge: “I would agree with you Mr. Prosecutor – it looks like the way the defendant is acting herein is not at all under the understanding of the rules of court procedure, so at this time, I believe that what the court is going to do, sir, is we are going to appoint an attorney to represent you because it is obvious that you do not understand the rules of procedure herein and based upon the appointment of that attorney, I believe that immediately he is probably going to move the court for a competency hearing for you to determine whether you‟re going to be able to assist the attorney in the preparation of any kind of criminal defense in this matter and again, I caution you that with 12 felony counts, this is a very, very serious matter and we‟re going to have to make sure that what we‟re doing here is going to protect you even if it is from yourself. You seem to be just repeating the same sentence over and over again – at this time we will recommend attorney Jones for you… We are going to adjourn this case for 15 minutes so that you can discuss your case with attorney Jones… We will then reconvene. Do you understand?” John Doe: ““Judge, I conditionally accept any and all of these offers based upon proof of claim that the record doesn‟t show that they are moot. Are you not ready to ratify…” Judge: “Sir, that‟s enough – quiet or I‟ll hold you in contempt – I hear what you‟re saying – God bless you attorney Jones – I hope you can work with your client. Sir, I do not want to hear another word out of you. Go immediately back and consult with attorney Jones. If you utter one more word, I‟ll will have the marshalls hold you in contempt.” John Doe: “Your Honor, I conditionally accept based upon proof of claim that offering a private set off is a contemptible offense.” Judge: “Out of here! John Doe: “That‟s gonna cost you and I don‟t intend to avail myself of your services today.” Better, remain silent. The next time you come into the court, say “Your Honor is it not true that you stated that if I said one more word I‟d be in contempt? Is it not most honorable, your Honor, not to be in contempt and can I not, at this time, state that I reserve all my rights, including the right to object to or protest to what you said last time.” When you have a duty to speak, silence gives consent; but when you have an order to be quiet, you do not have the privilege to speak. The court cannot pass any kind of judgment on you without notice and opportunity. With no notice or penalty, there cannot be penalty. John Doe: “Would it be OK if I answered that, your Honor, without waiving any of my rights or abandoning my record?” If the court says yes, you can play along, colorably, a little bit more. Last in, first out. Every court hearing is set up for a purpose. Before going into a court proceeding, the most important thing to do is submit pleading (not evidenciary) paperwork. The U.S. Government is in the public. They are a debtor just like your fiction is – they have no claim or title. They need you to shoot yourself in the foot. “If there are no records or pleadings in this court, contradicting or objecting to the private settlement offer or record before this court, I request that this court release the order of the court to me and discharge this case immediately” When the magistrate enters a plea for you, say “Let the record show that the Judge has entered a chosen action and therefore has converted on all liabilities as surety for the defendant.” Session 7 It is helpful for you to be colorable (subtle) when you‟re in front of a Judge, in other words, not blatant in front of the other customers. Best to not ruffle feathers in the public. “I am here as John Doe – is it all right that I enter the BAR without waving any rights?” as = in the capacity of not necessarily the defendant or surety A private judgment has already given you a security interest and/or lien right. Submit a foreign judgment (private claim; originals, with apostilles from the Sec‟y of State on certificates of non-response or certificates of protest, making them self-autheticating documents) via a letter rogatory (foreign advisory) straight into the judge‟s chambers. What matters in the public is proper form with substance backing it. Public record (ex: UCC notice of claim) of your security interest can be submitted as an exhibit with a (public side) pleading (when you need public ratification). Photocopies are attached to pleadings, not originals – they stay in the private. The structure of your pleading needs to incorporate the record in it. You need to state a claim upon which relief can be granted within your pleading. However, if the support of whatever your claim is in the pleading is an attached exhibit of your private record, in order for them to recognize it, you need to have some language in there, such as “…Evidenced by the record of private judgment attached hereto and incorporated herein in its entirety as „Exhibit A‟.” When you‟re looking for an order out of the court, you must have the order as its own separate filing. Say, you petition for a writ of attachment (a pleading for public ratification)… it is an administrative proceeding - you‟re not seeking anything judicial as you‟ve already got your private judgment. In the caption of the petition: “Petition for Writ of Attachment; [proposed] order (filed concurrently)” – you‟ve incorporated the order. The order will be as if it‟s been issued by a judge, including a place where the judge will sign. The judge will literally cross out “proposed” and sign it, thereby issuing the order (presuming the opposing party cannot submit something against my record). If the opposing party puts in an argument, it can be conditionally accepted, thereby putting your counter- offer back on top with your proposed order. “Your Honor, being as there are no objections nor anything opposing or contradicting my record, I request that you issue now an order for dismissal with prejudice.” John Doe: “Your Honor, I‟m here as Kathy Edwards…” John Doe: “Your Honor, I accept that I can‟t be here as the Defendant, conditional upon proof of claim that as the paramount security interest holder in all of the Defendant‟s property, I don‟t have standing in this matter. When perfecting a private claim, always have your notary do three or four Certificates of Non-Response, etc. (original receipts), so whenever you have to use one, say, by submitting it privately to a judge, you still have an original left and you keep your claim. If you hold the b/c, you‟re the principal (debtor); if you return the b/c, you‟re the surety. It‟s a privilege to use a war registered property. It‟s an unalienable right to have personal possessions. Definitions BLACK’S 6 edition, AND/OR Websters Collegiate 4th et al. Conscious: WEBSTERS: 1. having a feeling or knowledge (of one’s own sensations, feelings, etc. or of external things); knowing or feeling (that something is happening or existing); aware, cognizant 2. Able to feel and think; in the normal waking state 3. Aware of one’s self as a thinking being; KNOWING WHAT ONE IS DOING AND WHY! Merit(s): WEBSTERS: to deserve, earn; 1. The state, fact or quality of deserving well 2. Worth; value; excellence 3. Something deserving reward, praise, or gratitude 4. A reward or honor given for superior qualities or conduct, awarded for excellence 5. TO DESERVE, BE WORTHY OF BLACK’S: As a legal term, refers to strict legal rights of the parties. The substance, elements, or grounds of a cause of action or defense. Deserve: WEBSTERS: to have a right because of acts or qualities; be worthy of; HAVE BY CONDUCT A CLAIM TO BLACK’S: worthy or meritorious, without regard to conditions or circumstances Tacit acquiescence: WEBSTERS: Tacit – saying nothing; being silent; unspoken; not expressed or declared openly, BUT IMPLIED OR UNDERSTOOD; -- LAW: happening without contract but by operation of law --- Acquiescence: agreement or consent without protest; BLACK’S: passive compliance or satisfaction; A SILENT APPEARANCE OF CONSENT; failure to make any objections; exists where a person knows or ought to know that he is entitled to enforce his right or to impeach a transaction, and neglects to do so for such a length of time as would imply that he intended to waive or abandon his right. (Laches may be evidence of acquiescence – Laches imports a merely passive assent, while acquiescence implies active assent) Failure to make objections; submission to an act of which one had knowledge. Conduct recognizing the existence of a transaction, and intended, in some extent at least, to carry the transaction, or permit it to be carried, into effect. Passive compliance or satisfaction. Laches: WEBSTERS: Failure to do the required thing at the proper time (inexcusable delay in enforcing a claim!) BLACK’S: (maxim: equity aids the vigilant and not those who slumber on their rights!) It is defined as neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to adverse party, operates as bar in court of equity. The neglect for an unreasonable and unexplained length of time under circumstances permitting diligence, to do what in law, should have been done. Neglect or omission to assert right as, taken in conjunction with lapse of time and other circumstances, causes prejudice to adverse party. Estoppel: WEBSTERS: the barring of a person, in legal proceeding, from making allegations or denials which are contrary to either a previous statement or act by that person or a previous adjudication BLACK’S: means that party is prevented by his own acts from claiming a right to detriment of other party who was entitled to rely on such conduct and has acted accordingly; A principle that provides that an individual is barred from denying or alleging a certain fact or state facts because of that persons previous conduct, allegation, or denial. ESTOPPEL IS OR MAY BE BASED ON ACCEPTANCE OF BENEFITS, actual or constructive fraudulent conduct, admissions or denials by which another is induced to act his injury; agreement on and settlement of facts by force of entering into a contract; assertion of facts on which another relies; assumption of position which, if not maintained, would result in injustice to another; concealment of facts; conduct or acts amounting to a representation or concealment; consent to copyright infringement, whether express or implied from long acquiescence with knowledge of the infringement; language or conduct which has induced another to act. Estoppels at common law are said to be of three kinds: 1) by deed 2) by matter of record 3) by matter in pais. The first 2 are also called legal estoppels, as distinguished from the last kind, known as equitable estoppels. Acceptance: WEBSTERS: law – an express or implied act by which one accepts an obligation, offer, contract; etc… together with all its legal consequences. ACCEPT: to take (what is offered or given); receive (willingly) – to receive with intent to retain and adopt BLACK’S: The taking or receiving of anything in good part, and as it were a tacit agreement to a preceding act, which might have been defeated or avoided if such acceptance had not been made. The act of a person to whom a thing is offered or tendered by another, whereby he receives the thing with the intention of retaining it, such intention being evidenced by a sufficient act. Sale of goods: U.C.C. SS 2-606 provides 3 ways a buyer can accept goods: 1. By signifying to the seller that the goods are conforming or that he will accept them in spite of their nonconformity – 2. Be failing to make an effective rejection, and 3. By doing an act inconsistent with the seller’s ownership. ACCEPTANCE OF A PART OF ANY COMMERCIAL UNIT IS ACCEPTANCE OF THAT ENTIRE UNIT. Conditional Acceptance: BLACK’S: An engagement to pay the draft or accept the offer on the happening of a condition. A “conditional acceptance” is in effect a statement that the offeree is willing to enter into a bargain differing in some respects from that proposed in the original offer. THE CONDITIONAL ACCEPTANCE IS, THEREFORE, ITSELF A COUNTEROFFER. Counteroffer: WEBSTERS: An offer proposed in response to one that is unsatisfactory BLACK’S: Statement made by the offeree to the offeror relating to the same manner as the original offer and proposing a substituted bargain differing from that proposed by the original offer. A STATEMENT BY THE OFFEREE WHICH HAS THE LEGAL AFFECT OF REJECTING THE OFFER AND PROPOSING A NEW OFFER TO THE OFFEROR. Security Interest: WEBSTERS NEW WORLD LAW DICTIONARY: An interest in property created by the operation of law or by agreement to repay a loan; A LIEN ON PERSONAL PROPERTY CREATED BY AN AGREEMENT BLACK’S: interest in property obtained pursuant to security interest; a form of interest in property which provides that the property may be sold on default in order to satisfy an obligation for which the security interest is given. THE TERM “SECURITY INTEREST” MEANS ANY INTEREST IN PROPERTY ACQUIRED BY CONTRACT FOR THE PURPOSE OF SECURING PAYMENT OR PERFORMANCE OF AN OBLIGATION OR INDEMNIFYING AGAINST LOSS OR LIABILITY Interest: WEBSTERS: a right or claim to something; BLACK’S: the most general term that can be employed to denote a right, claim, title, or legal share in something Forgive: 1 a : to give up resentment of or claim to requital for <forgive an insult> b : to grant relief from payment of <forgive a debt> Book: To register or make reservation for transportation, lodging, etc. To set date and time for engagement or appointment. Deceit: 1: the act or practice of deceiving. 2: an attempt or device to deceive. 3: the quality of being deceitful. Impose: To levy or exact as by authority; to lay as a burden, tax, duty or charge. Enforce: Black’s: To put into execution; to cause to take effect; to make effective; as, to enforce a particular law, a writ, a judgment, or the collection of a debt or fine; to compel Obedience to. See e.g. Attachment; Execution; Garnishment. Agreement: Black’s: A meeting of two or more minds; a coming together in opinion or determination; the coming together in accord of two minds on a given proposition. In law, a concord of understanding and intention between two or more parties with respect to the effect upon their relative rights and duties, of certain past or future facts or performances. The consent of two or more persons concurring respecting the transmission of some property, right, or benefits, with the view of contracting an obligation, a mutual obligation. A manifestation of mutual assent on the part of two Or more persons as to the substance of a contract. Restatement, Second, Contracts, § 3. The act of two or more persons, who unite in expressing a mutual and common purpose, with the view of altering their rights and obligations. The union of two or more minds in a thing done or to be done; a mutual assent to do a thing. A compact between parties who are thereby subjected to the obligation or to whom the contemplated right is thereby secured. Although often used as synonymous with "contract", agreement is a broader term; e.g. an agreement might lack an essential element of a contract. The bargain of the parties in fact as found in their language or by implication from other circumstances including course of dealing or usage of trade or course of performance. U.C.C. § 1-201(c); Uniform Consumer Credit Code, § 1.301(3). The writing or instrument which is evidence of an agreement. Due Process of Law: Law in its regular course of administration through courts of justice. Due process of law in each particular case means such an exercise of the powers of the government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs. A course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the enforcement and protection of private rights. To give such proceedings any validity, there must be a tribunal competent by its constitution-that is, by the law of its creation- to pass upon the subject-matter of the suit; and, if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of process within the state, or his voluntary appearance. Appeal: Black’s: Resort to a superior (i.e. appellate) court to review the decision of an inferior (i.e. trial) court or administrative agency. A complaint to a higher tribunal of an error or injustice committed by a lower tribunal, in which the error or injustice is sought to be corrected or reversed. Board of Ed. of Cleveland City School Dist. v. Cuyahoga County Bd. of Revision, 34 Ohio St.2d 231, 298 N.E.2d 125, 128. There are two stages of appeal in the federal and many state court systems; to wit, appeal from trial court to intermediate appellate court and then to Supreme Court. There may also be several levels of appeal within an administrative agency; e.g. appeal from decision of Administrative Law Judge to Appeals Council in social security case. In addition, an appeal may be taken from an administrative agency to a trial court (e.g. from Appeals Council in social security case to U.S. district court). Also, an appeal may be as of right (e.g. from trial court to intermediate appellate court) or only at the discretion of the appellate court (e.g. by writ of certiorari to U.S. Supreme Court). Provision may also exist for joint or consolidated appeals (e.g. Fed.R.App.P. 3) and for cross appeals (where both parties to a judgment appeal therefrom). Appeal was also the name formerly given to the proceeding in English law where a person, indicted of treason or felony, and arraigned for the same, confessed the fact before plea pleaded, and appealed, or accused others, his accomplices in the same crime, in order to obtain his pardon. In this case he was called an "approver" or "prover," and the party appealed or accused, the "appellee." Appellate: Black’s: Pertaining to or having cognizance of appeals and other proceedings for the judicial review of adjudications. The term has a general meaning, and it has a specific meaning indicating the distinction between original jurisdiction and appellate jurisdiction. Woodruff v. Bell, 143 Kan. 110, 53 P.2d 498, 499. Appellate court. Black’s: A court having jurisdiction of appeal and review; a court to which causes are removable by appeal, certiorari, error or report. A reviewing court, and, except in special cases where original jurisdiction is conferred, not a "trial court" or court of first instance. Appellant Black’s: The party who takes an appeal from one court or jurisdiction to another. Used broadly or non-technically, the term includes one who sues out a writ of error. Availing: Use or advantage. Authority: Authority. Permission. Right to exercise powers; to implement and enforce laws; to exact obedience; to command; to judge. Control over; jurisdiction. Often synonymous with power. The power delegated by a principal to his agent. The lawful delegation of power by one person to another. Power of agent to affect legal relations of principal by acts done in accordance with principal's manifestations of consent to agent. See Restatement, Second, Agency § 7. Live: Black’s: adj. Having or possessing life. verb. To live in a place, is to reside there, to abide there, to occupy as one's home. Leroux v. Industrial Accident Commission of California, 140 Cal.App. 569, 35 P.2d 624, 626. See also Domicile; Living; Residence. Law: That which is laid down, ordained, or established. A rule or method according to which phenomena or actions co-exist or follow each other. Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force. Lien: Black’s: A claim, encumbrance, or charge on property for payment of some debt, obligation or duty. Sullins v. Sullins, 65 Wash.2d 283, 396 P.2d 886, 888. Qualified right of property which a creditor has in or over specific property of his debtor, as security for the debt or charge or for performance of some act. Right or claim against some interest in property created by law as an incident of contract. Right to enforce charge upon property of another for payment or satisfaction of debt or claim. Contract: An agreement between two or more persons which creates an obligation to do or not to do a particular thing. As defined in Restatement, Second, Contracts § 3: "A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty." A legal relationship consisting of the rights and duties of the contracting parties; a promise or set of promises constituting an agreement between the parties that gives each a legal duty to the other and also the right to seek a remedy for the breach of those duties. Its essentials are competent parties, subject matter, a legal consideration, mutuality of agreement, and mutuality of obligation. Debtor: 1 : one guilty of neglect or violation of duty 2 : one who owes a debt. Common Parlance: A common manner of speaking; Trial: A judicial examination and determination of issues between parties to action, whether they be issues of law or of fact, before a court that has jurisdiction. Tittsworth v. Chaffin, Mo. App., 741 S.W.2d 314, 317. A judicial examination, in accordance with law of the land, of a cause, either civil or criminal, of the issues between the parties, whether of law or fact, before a court that has proper jurisdiction. Plea: a. An allegation offered in pleading a case. b. A defendant's answer to the declaration made by the plaintiff in a civil action. c. The answer of the accused to a criminal charge or indictment: entered a plea of not guilty. d. A special answer depending on or demonstrating one or more reasons why a suit should be delayed, dismissed, or barred in equity law. e. An action or suit. Bond: a. something that binds or restrains. b. binding agreement. Due process 1 : a course of formal proceedings (as legal proceedings) carried out regularly and in accordance with established rules and principles —called also procedural due process 2 : a judicial requirement that enacted laws may not contain provisions that result in the unfair, arbitrary, or unreasonable treatment of an individual —called also substantive due process Identify: to make the same. Ownership: Collection of rights to use and enjoy property, including right to transmit it to others. Trustees of Phillips Exeter Academy v. Exeter, 92 N.H. 473, 33 A.2d 665, 673. The complete dominion, title, or proprietary right in a thing or claim. The entirety of the powers of use and disposal allowed by law. The right of one or more persons to possess and use a thing to the exclusion of others. The right by which a thing belongs to someone in particular, to the exclusion of all other persons. The exclusive right of possession, enjoyment, and disposal; involving as an essential attribute the right to control, handle, and dispose. Constructive notice is a legal fiction used in the law of both common law and civil law systems to signify that a person or entity is legally presumed to have knowledge of something, even if they have no actual knowledge of it. AT: – near or in the presence of IN: – surrounded by; inside of AS: – in the capacity of Surety: One who at the request of another, and for the purpose of securing to him a benefit, becomes responsible for the performance by the latter of some act in favor of a third person, or hypothecates property as security therefor. Honor v. To accept a bill of exchange, or to pay a note check, or accepted bill, at maturity and according to its tenor. To payor to accept and pay, or where a credit so engages to purchase or discount a draft complying with the terms of the draft. U.C.C. § 1-201(21). See also Dishonor. Dishonor: To refuse to accept or pay a draft or to pay a promissory note when duly presented. An instrument is dishonored when a necessary or optional presentment is duly made and due acceptance or payment is refused, or cannot be obtained within the prescribed time, or in case of bank collections, the instrument is seasonably returned by the midnight deadline; or presentment is excused and the instrument is not duly accepted or paid.U.C.C. § 3-507(1); § 4-210. Includes the insurer of a letter of credit refusing to payor accept a draft or demand for payment. For bank's liability for wrongful dishonor, see U.C.C. § 4-402. Se also Notice of dishonor; Purge: To cleanse; to clear. To dear or exonerate from some charge or imputation of guilt, or from a contempt. Bankrupt: The state or condition of a person (individual, partnership, corporation, municipality) who is unable to pay its debts as they are, or become, due. The condition of one whose circumstances are such that he is entitled to take the benefit of the federal bankruptcy laws. The term includes a person against whom an involuntary petition has been filed, or who has filed a voluntary petition, or who has been adjudged a bankrupt. The word "bankrupt" is not used in the federal Bankruptcy Code. "Debtor" is now the term used.
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