Thursday, January 20, 2011

Twenty Reasons to Vacate a Judgment or Demand Due Process

I am not a lawyer. Please see this Disclaimer, relating to my affiliation and the presentation of this information.
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"In all, there are 20 indices which tell us whether or not a court had subject matter jurisdiction and when examining a judgment one has to know each and every one of them by heart. If he knows them by heart he can go through a judgment like Sherman going though Georgia and point out all of the errors which might make the case a void judgment, null and void upon its face."(last paragraph of this article.)
 
Black's Law Dictionary, Sixth Edition, page 1574:
  • Void judgment.  One which has has no legal force or effect, invalidity of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally.  Reynolds v. Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087, 1092.  One which from its inception is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind parties or support a right, of no legal force and effect whatever, and incapable of confirmation, ratification, or enforcement in any manner or to any degree.  Judgment is a "void judgment" if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process.  Klugh v. U.S., D.C.S.C., 610 F.Supp. 892, 901.

    Void judgments are those rendered by a court which lacked jurisdiction, either of the subject matter or the parties. See: Wahl v. Round Valley Bank 38 Ariz, 411, 300 P. 955(1931), Tube City Mining & Millng Co. v. Otterson, 16 Ariz. 305, 146p 203(1914); and Millken v. Meyer, 311 U.S. 457, 61 S. CT. 339,85 L. Ed. 2d 278 (1940).
I can go into void judgments at great length with enough court case cites to make anybody's eyes glaze over but I shall refrain. Let it be said that the really big deal with subject matter jurisdiction is that it can never be presumed, never be waived, and cannot be constructed even by mutual consent of the parties. (Additional References)

Subject matter jurisdiction is two part;
  • ·         the statutory or common law authority for the court to hear the case
  • ·         and the appearance and testimony of a competent fact witness, in other words, sufficiency of pleadings.
Subject matter failings are usually the following:
(1) No petition in the record of the case, Brown v. VanKeuren, 340 Ill. 118,122 (1930).
(2) Defective petition filed (same case as above).
(3) Fraud committed in the procurement of jurisdiction, Fredman Brothers Furniture v. Dept. of Revenue, 109 Ill. 2d 202, 486 N.E. 2d 893(1985)
(4) Fraud upon the court, In re Village of Willowbrook, 37 Ill, App. 3d 393(1962)
(5) A judge does not follow statutory procedure, Armstrong v. Obucino, 300 Ill 140, 143 (1921)
(6) Unlawful activity of a judge, Code of Judicial Conduct.
(7) Violation of due process, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019(193 ;Pure Oil Co. v. City of Northlake, 10 Ill.2d 241, 245, 140 N.E. 2d 289 (1956);Hallberg v Goldblatt Bros., 363 Ill 25 (1936), (If the court exceeded it's statutory authority. Rosenstiel v. Rosenstiel, 278 F. Supp. 794 (S.D.N.Y. 1967)
  • A statutory right is a right granted to a person by authority of a statute. Statutes are created by legislative (and in certain countries executive) bodies, and form the codified law of a jurisdiction. For example, a statute governing court process might contain provisions giving an election on either party to an appeal, and that right to appeal would be considered statutory.
(8) any acts in violation of 11 U.S.C. 362(a),in re Garcia, 109 B.R. 335(N.D. Illinois, 1989).
(9) Where no justiciable issue is presented to the court through proper pleadings, Ligon v. Williams, 264 Ill. App 3d 701, 637 N.E. 2d 633 (1st Dist. 1994).
(10) Where a complaint states no cognizable cause of action against that party, Charles v. Gore, 248 Ill App. 3d 441, 618 N.E. 2d 554 (1st. Dist. 1993)
(11) where any litigant was represented before a court by a person/law firm that is prohibited by law to practice law in that jurisdiction.
(12) When the judge is involved in a scheme of bribery (the Alemann cases, Bracey v Warden, U.S. Supreme Court No. 96-6133(June 9, 1997)
(13) Where a summons was not properly issued.
(14) Where service of process was not made pursuant to statute and Supreme Court Rules, Janove v. Bacon, 6 Ill. 2d 245, 249, 218 N.E. 2d 706, 708 (1953)
(15) when the rules of the Circuit court are not complied with.
(16) when the local rules of the special court are not complied with. (One Where the judge does not act impartially, Bracey v. Warden, U.S. Supreme Court No. 96-6133(June 9, 1997)
(17) where the statute is vague, People v. Williams, 638 N.E. 2d 207 (1st Dist. (1994)
(18) when proper notice is not given to all parties by the movant, Wilson v. Moore, 13 Ill. App. 3d 632, 301 N.E. 2d 39 (1st Dist. (1973)
(19) where an order/judgment is based on a void order/judgment, Austin v. Smith, 312 F 2d 337, 343(1962);English v. English, 72 Ill. App. 3d 736, 393 N.E. 2d 18 (1st Dist. 1979) or
(20) where the public policy of the State of Illinois is violated, Martin-Tregona v Roderick, 29 Ill. App. 3d 553, 331 N.E. 2d 100 (1st Dist. 1975)

And another that can and should be checked on is does the judge have a copy of his oath of office on file in his chambers? If not, he is not a judge and yes, you can go into his office and demand to see a copy of his oath of office at any time. The laws covering judges and other public officials are to be found at 5 U.S.C. 3331, 28 U.S.C. 543 and 5 U.S.C. 1983 and if the judge has not complied with all of those provisions he is not a judge but a trespasser upon the court. If he is proven a trespasser upon the court (upon the law) not one of his judgments, pronouncements or orders are valid. All are null and void.

In all, there are 20 indices which tell us whether or not a court had subject matter jurisdiction and when examining a judgment one has to know each and every one of them by heart. If he knows them by heart he can go through a judgment like Sherman going though Georgia and point out all of the errors which might make the case a void judgment, null and void upon its face.
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