Buttrick judging foreclosure suit 
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Buttrick judging foreclosure suit

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Buttrick judging foreclosure suit


Written by
Mobius Nemesis
Date: 06-24-2009
Subject: Criminal Justice System

              ATTENTION ALL LIBERTARIANS 
 
The court will be deciding the case of Bill Eason v. INDYMAC, MTC FINANCIAL on Friday, June 26 at 9:00 am in Judge John Buttrick’s court room, #704B, 201 E. Jefferson, Phoenix, Central Court house Building.
 
This case is about another fraudulent foreclosure by the FEDERAL RESERVE BANK against another true patriot.  The law says the bank must "produce the NOTE" or lose ALL rights to the property.
 
The law is very clear, if a bank cannot “produce the original NOTE” they cannot foreclose. It is really that simple.
 
Following is a short treatise in accordance with the applicable laws, precedents and legal definitions and is part of the documentation entered into court on this matter. The court has NO LAWFUL CHOICE except to issue a summary judgment in favor of Eason and have the attorney for the bank removed from the court. That would be what the law requires any judge to do.
 
I have personally verified that banks make an electronic copy of the NOTE then actually shred the NOTE. This is EXACTLY the same under the law as making a copy of a $10 FRN, shredding the FRN, and THEN attempting to buy a six pack with the copy.   
 
Pursuant to Arizona law, which accepted in totality the U.C. C. under the name A.R.S. Title 47, when the bank voluntarily shredded the NOTE the bank simultaneously cancelled the mortgage. There is no way to lawfully argue against this fact.  The judges know this, but they also know the banks are in charge.
 
Here are some of the laws, definitions and case precedents that apply:
1)  A.R.S. § 47-3604 &  U.C.C.§3-604 Discharge by cancellation                                  
  A. A person entitled to enforce an instrument, with or without consideration, may discharge the obligation of a party to pay the instrument:
1. By an intentional voluntary act, such as surrender of the instrument to the party, destruction, mutilation or cancellation of the instrument, cancellation or striking out of the party's signature or the addition of words to the instrument indicating discharge; or
2. By agreeing not to sue or otherwise renouncing rights against the party by a  signed writing.
 
2)  A.R.S. § 47-3302 & U.C.C. 3-302 Holder in due course                                                                                                 
A. Subject to subsection C of this section and section 47-3106, subsection D, "holder in due course" means the holder of an instrument if:                     
1. The instrument when issued or negotiated to the holder does not bear such apparent evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call into question its authenticity; and 
2.The holder took the instrument:                                                   
(a) For value; (b) In good faith; (c) Without notice that the instrument is overdue or has been dishonored or that there is an uncured default with respect to payment of another instrument issued as part of the same series;   (d) Without notice that the instrument contains an unauthorized signature or  has been altered  (e) Without notice of any claim to the instrument described in section 47-3306; and  (f) Without notice that any party has a defense or claim in recoupment described in section 47-3305,subsection A.                                                                                               
 B. Notice of discharge of a party, other than discharge in an insolvency  proceeding, is not notice of a defense under subsection A of this section,  but discharge is effective against a person who became a holder in due  course with notice of the discharge. Public filing or recording of a  document does not of itself constitute notice of a defense, claim in  recoupment or claim to the  instrument. 
C. Except to the extent a transferor or predecessor in interest has rights as a  holder in due course, a person does not acquire rights of a holder in due course of an instrument taken:  
  1. By legal process or by purchase in an execution, bankruptcy or creditor's or similar proceeding
  2. By purchase as part of a bulk transaction not in ordinary course of business of the transferor; or                                                           
   3. As the successor in interest to an estate or other organization.
 
3)    Arizona Rules of Evidence Rule 408 Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
 
4) Also read and learn: Title 15 Chapter 41 Subchapter V § 1692, and/or A.R.S. § 47-3101 through 47-4504,
 
                           
 5) RECISSION of contract: Black’s Law Sixth Edition;   
………..The right of rescission is the right to cancel (rescind) upon the occurrence of certain kinds of default (1) by the other contracting party. To declare a contract void in its inception and put an end to it as though it never were. Russell v. Stephens, 191 Wash. 314, 71 P.2d 30, 31. A “rescission” amounts to the unmaking of a contract, or an undoing of it from the beginning, and not merely a termination, and it may be effected by mutual agreement or by one of the parties declaring rescission of contract without consent of the other if a legally sufficient ground therefore exists (2), or by applying to the courts for a decree of rescission.      
 
6)   A.R.S. § 47-3309. Enforcement of lost, destroyed or stolen instrument
A. A person not in possession of an instrument is entitled to enforce the instrument if:
  1. The person was in possession of the instrument and entitled to enforce it when loss  of possession occurred; 
  2. The loss of possession was not the result of a transfer by the person or a lawful seizure; and                             
  3. The person cannot reasonably obtain possession of the instrument because the       instrument was destroyed, its whereabouts cannot be determined or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process;
 B. A person seeking enforcement of an instrument under subsection A of  this section must prove the terms of the instrument and the person's right  to enforce the instrument. If that proof is made, section 47-3308 applies to the case as if the person seeking enforcement had produced the  instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the       instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.
 
 
6) Cases:  
     i) A US Federal Judge, C.A. Boyko in Federal District Court in Cleveland Ohio ruled to dismiss a claim by Deutsche Bank National Trust Company. DB's US subsidiary was seeking to take possession of 14 homes from Cleveland residents living in them, in order to claim the assets.
     ii) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON IN RE FORECLOSURE CASES CASE NO. 3:07CV043
To satisfy Article III’s standing requirements, a plaintiff must show: (1) it has suffered an
injury in fact that is concrete and particularized and actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Loren, 2007 WL 2726704 at 7. To show standing, then, in a foreclosure action, the plaintiff must show that it is the holder of the note and the mortgage at the time the complaint was filed (*1). The foreclosure plaintiff must also show, at the time the foreclosure action is filed, that the holder of the note and mortgage is harmed (*2)….
 
 
iii) First National Bank of Montgomery vs. Jerome Daly, IN THE JUSTICE COURT STATE OF MINNESOTA COUNTY OF SCOTT TOWNSHIP OF CREDIT RIVER, JUSTICE MARTIN V. MAHONEY December 7, 1968;
 
7) FEDERAL RESERVE’s plan developed by J.P.Morgan;
“... Debts must be collected and loans and mortgages foreclosed as soon as possible. When through a process of law the common people have  
lost their homes, they will be more tractable and more easily governed by the strong arm of the law applied by the central power of leading financiers. People without homes will not quarrel with their leaders. This is well known among our principle men now engaged in forming an imperialism of capitalism to govern the world. By dividing the people we can get them to expend their energies in fighting over questions of no importance to us except as teachers of the common herd.”                                                                                                     
                                
8) Banks can not lend credit:
Bank transactions require a legal object and purpose. In this instant matter, RPII Acceptor  may  have committed the following illegal acts,  the fraudulent representation of facts, the lending of credit instead of money which is illegal in and of itself and leads to fraudulent consideration. RPII Offeror cites for RPII Acceptor’s review the following cases;
    
See: “In the federal courts, it is well established that a national bank has not power to lend its credit to another by becoming surety, endorser, or guarantor for him.”' Farmers and Miners Bank v. Bluefield Nat 'l Bank, 11 F 2d 83, 271 U.S. 669.
 
See: "A national bank has no power to lend its credit to any person or corporation . . . Bowen v. Needles Nat. Bank, 94 F 925 36 CCA 553, certiorari denied in 20 S.Ct 1024, 176 US 682, 44 LED 637.
 
See: “The doctrine of ultra vires is a most powerful weapon to keep private corporations within their legitimate spheres and to punish them for violations of their corporate charters, and it probably is not invoked too often . . . Zinc Carbonate Co. v. First National Bank, 103 Wis 125, 79 NW 229. American Express Co. v. Citizens State Bank, 194 NW 430.
 
See: “A bank may not lend its credit to another even though such a transaction turns out to have been of benefit to the bank, and in support of this a list of cases might be cited, which-would look like a catalog of ships.” [Emphasis added] Norton Grocery Co. v. Peoples Nat. Bank, 144 SE 505. 151 Va 195.
 
See: “Neither, as included in its powers not incidental to them, is it a part of a bank's business to lend its credit. If a bank could lend its credit as well as its money, it might, if it received compensation and was careful to put its name only to solid paper, make a great deal more than any lawful interest on its money would amount to. If not careful, the power would be the mother of panics, . . . Indeed, lending credit is the exact opposite of lending money, which is the real business of a bank, for while the latter creates a liability in favor of the bank, the former gives rise to a liability of the bank to another. I Morse. Banks and Banking 5th Ed. Sec 65; Magee, Banks and Banking, 3rd Ed. Sec 248.” American Express Co. v. Citizens State Bank, 194 NW 429.
 
See: “It is not within those statutory powers for a national bank, even though solvent, to lend its credit to another in any of the various ways in which that might be done.” Federal Intermediate Credit Bank v. L’Herrison, 33 F 2d 841, 842 (1929).
 
See: “There is no doubt but what the law is that a national bank cannot lend its credit or become an accommodation endorser.” National Bank of Commerce v. Atkinson, 55 E 471.
 
See: “A bank can lend its money, but not its credit.” First Nat'l Bank of Tallapoosa v. Monroe. 135 Ga 614, 69 SE 1124, 32 LRA (NS) 550.
See: “. . . the bank is allowed to hold money upon personal security; but it must be money that it loans, not its credit.” Seligman v. Charlottesville Nat. Bank, 3 Hughes 647, Fed Case No.12, 642, 1039.
 
See: “Any false representation of material facts made with knowledge of falsity and with intent that it shall be acted on by another in entering into contract, and which is so acted upon, constitutes ‘fraud,’ and entitles party deceived to avoid contract or recover damages.” Barnsdall Refining Corn. v. Birnam Wood Oil Co.. 92 F 26 817.
 
See: “Any conduct capable of being turned into a statement of fact is representation. There is no distinction between misrepresentations effected by words and misrepresentations effected by other acts.” Leonard v. Springer 197 Ill 532. 64 NE 301.
 
See: “If any part of the consideration for a promise be illegal, or if there are several considerations for an unseverable promise one of which is illegal, the promise, whether written or oral, is wholly void, as it is impossible to say what part or which one of the considerations induced the promise.” Menominee River Co. v. Augustus Spies L & C Co., 147 Wis 559. 572; 132 NW 1122.
 
See: “The contract is void if it is only in part connected with the illegal transaction and the promise single or entire.” Guardian Agency v. Guardian Mut. Savings Bank, 227 Wis 550, 279 NW 83.
 
See:  “It is not necessary for rescission of a contract that the party making the misrepresentation should have known that it was false, but recovery is allowed even though misrepresentation is innocently made, because it would be unjust to allow one who made false representations, even innocently, to retain the fruits of a bargain induced by such representations.”  Whipp v. Iverson, 43 Wis 2d 166.
 
 
9) Maxim’s of law apply in this MATTER:
Ex dolo malo no oritur action: Out of fraud no action arises; fraud never gives a right of action. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act.
 
10)   Pursuant to the Erie doctrine Arizona Law prevails under diversity of jurisdiction:
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), was a decision by the Supreme Court of the United States in which the Court held that federal courts did not have the power to make up general federal common law when hearing state law claims under diversity jurisdiction. In reaching this holding, the Court overturned almost a century of federal civil procedure law, and established what remains the modern law of diversity jurisdiction for United States federal courts.
In the law of the United States, Erie doctrine is a fundamental legal doctrine of civil procedure mandating that a federal court in diversity jurisdiction must apply state substantive law.
The doctrine follows from Supreme Court landmark decision in Erie Railroad Co. v. Tompkins 304 U.S. 64 (1938), written by Justice Louis Brandeis. The case overturned Swift v. Tyson, which allowed federal judges sitting in a state to ignore the common law local decisions of state courts in the same state, in cases based on supplemental jurisdiction.
                                                                                                                                                      
11) Real Party In Interest    Pursuant to Arizona Rules of Civil Procedure Rule 17 the bank must prove that it is THE REAL PARTY IN INTEREST in this MATTER before the bank can argue against this MATTER.
 
Absent prima facie evidence that RPII Acceptor is THE REAL PARTY IN INTEREST in this MATTER and any and all courts in America shall only conclude that RPII Acceptor is NOT  THE REAL PARTY IN INTEREST in this MATTER and thus RPII Acceptor voluntarily forsakes ALL rights by default and/or its error(s) in fact. 
 
Pursuant to Arizona Law the bank is demanded, for ratification of commencement, to properly inform Plaintiff who is THE REAL PARTY IN INTEREST in this MATTER.
                   
 
12) CAVEAT: FOR THE BENEFIT OF ALL PARTIES
 
DO NOT ATTEMPT TO OFFER INTO EVIDENCE A COPY OF THE NOTE;
A  HOLDER  IN  DUE  COURSE  MUST  SUPPLY  THE  ORIGINAL  NOTE; ABSENT  THE  ORIGINAL  NOTE  ANY  PARTY CLAIMING  TO  BE  THE HOLDER  IN  DUE  COURSE  IS  PURPOSELY,  WITH  MALICE AFORETHOUGHT,  COMMITTING  FRAUD  UPON THE  COURT  AS EVIDENCED  BY  THIS  NOTICE.
ANY ATTEMPT TO FILE A COPY OF THE NOTE AS THE ORIGINAL NOTE SHALL BE CONSIDERED A CRIMINAL ACT, PURSUANT TO:
              
DO NOT ATTEMPT to reestablish the note as this would be a fraud upon the court pursuant to Arizona law. Pursuant to Arizona Rules of Civil Procedure  Rule 17 and Federal rules of Civil procedure rule 17.
 
The NOTE was purposely destroyed and was not lost and as such any claim that said note was lost would be perjury.
  
This and/or any communication may be recorded and used as evidence in any court in accordance with Rule 902.
 

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