Sanctions Pummel Neil Garfield Legal Theories

Neil Garfield’s frivolous filings and bogus legal theories have already cost at least one client, Zdislaw Maslanka, a wad of attorney fees in an utterly frivolous action to get his house free even though he remained current in his mortgage payments.  As the below docket entries show, the Florida 4th District appellate panel affirmed the 17th Circuit’s dismissal of the case and ordered Maslanka to pay the attorney fees of the two mortgage creditors that he sued.

  • 4D14-3015-Zdzislaw E. Maslanka v. Wells Fargo Home Mortgage and Embrace Home Loans
05/12/2016 Affirmed ­ Per Curiam Affirmed  
05/12/2016 Order Granting Attorney Fees­Unconditionally ORDERED that the appellee Embrace Home Loans Inc.’s September 2, 2015 motion for attorney’s fees is granted. On remand, the trial court shall set the amount of the attorney’s fees to be awarded for this appellate case. If a motion for rehearing is filed in this court, then services rendered in connection with the filing of the motion, including, but not limited to, preparation of a responsive pleading, shall be taken into account in computing the amount of the fee
05/12/2016 Order Granting Attorney Fees­Unconditionally ORDERED that the appellee Wells Fargo Home Mortgage’s September 3, 2015 motion for attorneys’ fees is granted. On remand, the trial court shall set the amount of the attorneys’ fees to be awarded for this appellate case. If a motion for rehearing is filed in this court, then services rendered in connection with the filing of the motion, including, but not limited to, preparation of a responsive pleading, shall be taken into account in computing the amount of the fee.

Federal Rules of Civil Procedure Rule 11 (See Below) allows the court to award attorney fees to the party against whom a litigant files frivolous (unsupported or nonsensical) motions.

34 States have embraced FRCivPro Rule 11 in their own rules of civil procedure, but Florida embraced it in Florida Statute 57.105 (See Below).  It requires the attorney propounding the unsupported motion to pay one half of the sanction cost and the attorney’s client to pay the other half.  That has raised the hackles of a lot of attorneys who claim it chills their willingness to mount an aggressive advocacy on behalf of the client.  Obviously, lawmakers see overaggressiveness as vexatious, and they decided, finally, to punish the lawyer for it.

Mortgage loan creditors have begun to get sick and tired of dealing with mindless litigation by idiotic practititoners like Neil Garfield.

Johnson v. BANK OF NEW YORK MELLON, Dist. Court, WD Washington 2016

I write now to show a case in point (full text of opinion below).  Lajuana Locklin Johnson, a TILA rescission mortgagor,  provoked the ire of a USDC judge in Washington State by filing a notice of rescission 10 (TEN!) years after consummation of the loan (obviously following Neil Garfield’s ridiculous strategy) when the TILA statute of repose window closes after 3 years.  She knew she had no case, but filed it anyway in a silly and misguided effort to get a free house.  So, the judge spanked her.

Oh, and she claimed she relied on the clear meaning of the SCOTUS Jesinoski opinion to do it. She claimed SCOTUS meant one can send notice of rescission after 3 years, but the high court actually meant the borrower with a valid TILA rescission claim may sue after 3 years.  Incidentally, the Minnesota USDC ruled in July 2016 that Jesinoski had no TILA rescission case because he and his wife had written an acknowledged receipt of the proper TILA disclosures. Jesinoski claimed he had invested over $800,000 in the case, much of which came from attorney fees.

Well, first Judge James L. Robart ordered Lajuana and her attorney Smith to show cause why he shouldn’t sanction them under Rule 11 for bringing an utterly hopeless TILA rescission action she knew would fail.  And in that order he berated attorney Jill J. Smith of Natural Resource Law Group, PLLC, for filing the action in spite of having filed and been sanctioned for one or more prior frivolous actions like Lajuana’s.  Smith idiotically claimed the table-funding meant the loan had never been consummated and so the statute of repose could not have tolled.  But she did not explain how Lajuana could rescind a non-consummated loan.

The judge said this about the essential argument Smith (taken directly from Garfield) propounded:

Excerpt from opinion

Ms. Smith indicates that on October 6, 2005, Ms. Johnson “entered into what she thought was a mortgage loan to purchase” property. (OSC Resp. at 1.) At oral argument, Ms. Smith argued that if the loan was never funded then the loan was never consummated.[3] However, Ms. Smith conceded at oral argument that the relevant parties signed the loan paperwork, money was transferred to the sellers of the house, and Ms. Johnson took possession of the property. These facts unarguably give rise to a contract under Washington Law. See Keystone, 94 P.3d at 949; see also Grimes, 340 F.3d at 1009-10. Ms. Smith nonetheless argued that the loan was unconsummated at that juncture based on the manner in which it was funded and the subsequent history of the loan.

Ms. Smith’s protestations in her response and at oral argument that the loan was table-funded[4] (id. at 4-5) and her account of the history of the loan subsequent to its consummation (OSC at 2-4) are both irrelevant to her allegation that “the loan was never consummated” (Compl. ¶ 13). Despite being afforded numerous opportunities to do so, Ms. Smith has failed to provide any legal authority—or even a cogent argument— supporting the proposition that the type of funding or subsequent transfers of a loan impact whether the loan was consummated.[5] (See, e.g., OSC Resp. at 5 (“One of the questions at issue is that if a party is merely an originator and NOT a lender or creditor, is there some theory where a loan contract could be considered consummated? If Plaintiff’s loan was a table-funded loan, the answer must be `no.'”).) Nor has Ms. Smith pointed to any further evidence providing “information and belief” that “the subject loan was never consummated.” (Compl. ¶ 13.)

The foregoing analysis leads the court to conclude that Ms. Smith’s factual allegation that “the loan was never consummated” and the legal theories underpinning that allegation violate Rules 11(b)(2) and 11(b)(3).[6] See Fed. R. Civ. P. 11(b)(2) (requiring that “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law”); Fed. R. Civ. P. 11(b)(3) (requiring that “factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery”). The court analyzes the appropriate sanctions below.

Then, Judge Robart ordered these sanctions:

(1) No more than 30 days after the date of this order, Ms. Smith and the Natural Resource Law Group must jointly pay sanctions of $10,000.00 to the court;

(2) No more than 30 days after the date of this order, Ms. Smith and the Natural Resource Law Group must fully reimburse Ms. Johnson for any attorneys’ fees or costs paid by Ms. Johnson in conjunction with this case and file certification with the court that they have done so; and

(3) The court dismisses the complaint with prejudice.

I would raise yet another point about this case.  The above excerpt provided that “Ms. Smith indicates that on October 6, 2005, Ms. Johnson “entered into what she thought was a mortgage loan to purchase” property…  Ms. Smith conceded at oral argument that the relevant parties signed the loan paperwork, money was transferred to the sellers of the house, and Ms. Johnson took possession of the property.”

I fail to see how TILA rescission can apply at all to a purchase money loan.

12 CFR Part 1026.23(f) “Exempt transactions.  The right to rescind does not apply to the following:  1. A residential mortgage transaction.” (“Residential mortgage transaction means a transaction in which a mortgage, deed of trust, purchase money security interestarising under an installment sales contract, or equivalent consensual security interestis created or retained in the consumer‘s principal dwelling to finance the acquisition or initial construction of that dwelling.”)

See the whole opinion below.

And let this be a lesson to Neil Garfield Klingons (those who cling to his every utterance:

Heed Neil Garfield at your peril!

 

FRCivPro Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions

(a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name—or by a party personally if the party is unrepresented. The paper must state the signer’s address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

(c) Sanctions.

(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.

(2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.

(3) On the Court’s Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).

(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.

(5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction:

(A) against a represented party for violating Rule 11(b)(2); or

(B) on its own, unless it issued the show-cause order under Rule 11(c)(3)before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.

(6) Requirements for an Order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.

(d) Inapplicability to Discovery. This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through37.

 

Florida Statute
57.105 Attorney’s fee; sanctions for raising unsupported claims or defenses; exceptions; service of motions; damages for delay of litigation.

(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:

(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.
(2) At any time in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorney’s fees, and other loss resulting from the improper delay.

(3) Notwithstanding subsections (1) and (2), monetary sanctions may not be awarded:

(a) Under paragraph (1)(b) if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.
(b) Under paragraph (1)(a) or paragraph (1)(b) against the losing party’s attorney if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts.
(c) Under paragraph (1)(b) against a represented party.
(d) On the court’s initiative under subsections (1) and (2) unless sanctions are awarded before a voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.
(4) A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.
(5) In administrative proceedings under chapter 120, an administrative law judge shall award a reasonable attorney’s fee and damages to be paid to the prevailing party in equal amounts by the losing party and a losing party’s attorney or qualified representative in the same manner and upon the same basis as provided in subsections (1)-(4). Such award shall be a final order subject to judicial review pursuant to s. 120.68. If the losing party is an agency as defined in s. 120.52(1), the award to the prevailing party shall be against and paid by the agency. A voluntary dismissal by a nonprevailing party does not divest the administrative law judge of jurisdiction to make the award described in this subsection.
(6) The provisions of this section are supplemental to other sanctions or remedies available under law or under court rules.
(7) If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract. This subsection applies to any contract entered into on or after October 1, 1988.
History.s. 1, ch. 78-275; s. 61, ch. 86-160; ss. 1, 2, ch. 88-160; s. 1, ch. 90-300; s. 316, ch. 95-147; s. 4, ch. 99-225; s. 1, ch. 2002-77; s. 9, ch. 2003-94; s. 1, ch. 2010-129.

57.115 Execution on judgments; attorney’s fees and costs.

(1) The court may award against a judgment debtor reasonable costs and attorney’s fees incurred thereafter by a judgment creditor in connection with execution on a judgment.

(2) In determining the amount of costs, including attorney’s fees, if any, to be awarded under this section, the court shall consider:

(a) Whether the judgment debtor had attempted to avoid or evade the payment of the judgment; and
(b) Other factors as may be appropriate in determining the value of the services provided or the necessity for incurring costs in connection with the execution.
History.s. 13, ch. 87-145.

 

LAJUANA LOCKLIN JOHNSON, Plaintiff,
v.
BANK OF NEW YORK MELLON, et al., Defendants.

Case No. C16-0833JLR.United States District Court, W.D. Washington, Seattle.

August 10, 2016.Lajuana Locklin Johnson, Plaintiff, represented by Jill J. Smith, NATURAL RESOURCE LAW GROUP PLLC.

ORDER ISSUING SANCTIONS AND DISMISSING CASE

JAMES L. ROBART, District Judge.

I. INTRODUCTION

This matter comes before the court sua sponte. Previously, the court ordered Jill J. Smith of the Natural Resource Law Group, PLLC, counsel for Plaintiff Lajuana Locklin Johnson, to show cause why the court should not sanction her pursuant to Federal Rule of Civil Procedure 11. (OSC (Dkt. # 3); see alsoCompl. (Dkt. # 1).) The court then ordered Ms. Smith to appear, and she presented argument on July 28, 2016, on why the court should not issue sanctions. Having considered the written and oral arguments of counsel, the appropriate portions of the record, and the relevant law, and considering itself fully advised, the court DISMISSES this case WITH PREJUDICE and SANCTIONS Ms. Smith as described more fully herein.

II. BACKGROUND

On June 6, 2016, Ms. Smith filed a complaint on behalf of Ms. Johnson seeking to enforce and obtain damages pertaining to her purportedly rescinded loans. (Compl.) The rescission notices that Ms. Johnson attached to her complaint make clear that she sent those notices more than a decade after executing the loans. (See Rescission Notices (Dkt. # 1-1).) The Truth in Lending Act (hereinafter, “TILA”), 15 U.S.C. § 1635 et seq., permits rescission of certain loans but includes a three-year statute of repose. Jesinoski v. Countrywide Home Loans, Inc., ___ U.S. ___, 135 S. Ct. 790, 792-93 (2015)(“The Truth in Lending Act gives borrowers the right to rescind certain loans for up to three years after the transaction is consummated.”).

Having presided over several of Ms. Smith’s TILA rescission cases that feature substantially similar complaints to the one in this case, the court researched Ms. Smith’s other filings in this district. (See OSC at 5-6 (collecting cases).) Ms. Smith has filed a troubling series of such cases.[1] The Honorable Thomas S. Zilly sanctioned Ms. Smith $5,000.00 plus over $10,000.00 in attorneys’ fees after ordering Ms. Smith to show cause regarding how binding Supreme Court caselaw does not foreclose her claim and receiving no response.Johnson v. Nationstar Mortg. LLC, et al., No. C15-1754TSZ, Dkt. ## 35, 41. The claim in Johnson v. Nationstar strongly resembles Ms. Johnson’s untimely effort to rescind pursuant to TILA in this case.

In light of this backdrop, the court stayed this case and ordered Ms. Smith to show cause no later than July 7, 2016, why the court should not issue sanctions pursuant to Federal Rule of Civil Procedure 11. (OSC at 8-10.) The court indicated that it was specifically considering sanctioning Ms. Smith and Ms. Johnson by “dismissing this case, issuing monetary sanctions against Ms. Smith, and requiring Ms. Smith to file a copy of this order each time she files a new case in federal court.” (Id. at 9.) Ms. Smith failed to file a timely response to the court’s order to show cause. (See Dkt.) The court therefore ordered Ms. Smith to appear on July 28, 2016, for an in-court sanctions hearing. (7/18/16 Min. Ord. (Dkt. # 4) at 1-2.)

On July 27, 2016, almost three weeks after her response was due and the day before the sanctions hearing, Ms. Smith filed a response to the order to show cause. That response states the facts of the case as Ms. Smith sees them but without reference to any affidavit or other verified source. (OSC Resp. (Dkt. # 5) at 1-4.) In addition, Ms. Smith attempts to address some of the specific considerations the court ordered her to respond to in its prior order. (Id. at 5-6.) However, she makes no reference to any of the prior cases she has filed in this court or “the Ninth Circuit and Supreme Court cases cited” in the order to show cause. (See OSC at 9 (“Ms. Smith’s response to this order must address how Ms. Johnson’s claims, as stated in the complaint, comply with Rule 11(b)(2) in light of Nieuwejaar, Green Tree, the other cases in this District identified above, and the Ninth Circuit and Supreme Court cases cited therein. Finally, Ms. Smith must address what “information and belief” she has that Ms. Johnson’s loan in this case “was never consummated.”); see generally OSC Resp.)

Ms. Smith appeared in court on July 28, 2016, and defended the factual allegations and legal theory underpinning Ms. Johnson’s claim. (7/28/16 Min. Entry (Dkt. # 6).) In general terms, Ms. Smith argued that circumstances surrounding the loan, such as the manner in which it was funded, make it questionable whether the loan was ever consummated. If the loan was never consummated, she reasons, the three-year statute of repose never began and therefore never expired.

The matter of Rule 11 sanctions is now before the court.

III. ANALYSIS

A. Legal Standard

Federal Rule of Civil Procedure 11 governs sanctions of the type issued herein. Rule 11(b) provides in full:

By presenting to the court a pleading, written motion, or other paper— whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Fed. R. Civ. P. 11(b). In its June 22, 2016, order, the court placed Ms. Smith on notice and allowed her to respond regarding potential violations of Rules 11(b)(2) and 11(b)(3).

B. Violations of Rule 11

Ms. Johnson alleges that “[u]pon information and belief, the subject loan was never consummated.” (Compl. ¶ 13.) This conclusory allegation appears intended to circumvent TILA’s three-year statute of repose, which begins upon consummation of the loan.[2] See 15 U.S.C. § 1635(f) (“An obligor’s right of rescission shall expire three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first. . . .”);Jesinoski, 135 S. Ct. at 792-93. At the hearing, Ms. Smith argued that if the loan was never consummated, the three-year statute of repose has not begun, has not expired, and therefore the rescission is timely.

In the numerous opportunities the court has afforded Ms. Smith to provide a factual basis for this allegation, she has provided none. Ms. Smith has also provided no evidence of any legal or factual “inquiry” that she performed, and accordingly the court can only determine whether the inquiry was “reasonable under the circumstances” based on the allegations and arguments that Ms. Smith has advanced in opposition to the frivolity of Ms. Johnson’s claim. Fed. R. Civ. P. 11(b).

Under TILA, “[c]onsummation means the time that a consumer becomes contractually obligated on a credit transaction.” 12 C.F.R. § 226.2(a)(13); see also Grimes v. New Century Mortg. Corp., 340 F.3d 1007, 1009 (9th Cir. 2003). “Under the Official Staff interpretation, state law determines when a borrower is contractually obliged.” Grimes, 340 F.3d at 1009 (citing 12 C.F.R. § 226, Supp. 1 (Official Staff Interpretations), cmt. 2(a)(13)); see also id. at 1010 (applying California law to determine whether a California loan was consummated for purposes of TILA). In Washington, “for a contract to form, the parties must objectively manifest their mutual assent” to “sufficiently definite” contractual terms. Keystone Land & Dev. Co. v. Xerox Corp., 94 P.3d 945, 949 (Wash. 2004). In addition, “the contract must be supported by consideration to be enforceable.” Id. (citing King v. Riveland, 886 P.2d 160, 164 (Wash. 1994)).

Ms. Smith indicates that on October 6, 2005, Ms. Johnson “entered into what she thought was a mortgage loan to purchase” property. (OSC Resp. at 1.) At oral argument, Ms. Smith argued that if the loan was never funded then the loan was never consummated.[3] However, Ms. Smith conceded at oral argument that the relevant parties signed the loan paperwork, money was transferred to the sellers of the house, and Ms. Johnson took possession of the property. These facts unarguably give rise to a contract under Washington Law. See Keystone, 94 P.3d at 949; see also Grimes, 340 F.3d at 1009-10. Ms. Smith nonetheless argued that the loan was unconsummated at that juncture based on the manner in which it was funded and the subsequent history of the loan.

Ms. Smith’s protestations in her response and at oral argument that the loan was table-funded[4] (id. at 4-5) and her account of the history of the loan subsequent to its consummation (OSC at 2-4) are both irrelevant to her allegation that “the loan was never consummated” (Compl. ¶ 13). Despite being afforded numerous opportunities to do so, Ms. Smith has failed to provide any legal authority—or even a cogent argument— supporting the proposition that the type of funding or subsequent transfers of a loan impact whether the loan was consummated.[5] (See, e.g., OSC Resp. at 5 (“One of the questions at issue is that if a party is merely an originator and NOT a lender or creditor, is there some theory where a loan contract could be considered consummated? If Plaintiff’s loan was a table-funded loan, the answer must be `no.'”).) Nor has Ms. Smith pointed to any further evidence providing “information and belief” that “the subject loan was never consummated.” (Compl. ¶ 13.)

The foregoing analysis leads the court to conclude that Ms. Smith’s factual allegation that “the loan was never consummated” and the legal theories underpinning that allegation violate Rules 11(b)(2) and 11(b)(3).[6] See Fed. R. Civ. P. 11(b)(2) (requiring that “the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law”); Fed. R. Civ. P. 11(b)(3) (requiring that “factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery”). The court analyzes the appropriate sanctions below.

C. Appropriate Sanctions

Rule 11(d) limits sanctions to “what suffices to deter repetition of the conduct or comparable conduct by others similarly situated.” Fed. R. Civ. P. 11(d). Ms. Smith’s actions in this case demonstrate that the previous sanctions she incurred—dismissal with prejudice, $11,972.50 in attorneys’ fees payable by her client, and a $5,000.00 sanction payable to the court—constituted insufficient specific deterrence. See Johnson v. Nationstar, No. C15-1754TSZ, Dkt. ## 35, 41-43. The court finds it appropriate to impose greater monetary sanctions payable by Ms. Smith and her law firm and dismiss the case with prejudice.[7] The court accordingly issues the following sanctions:

(1) No more than 30 days after the date of this order, Ms. Smith and the Natural Resource Law Group must jointly pay sanctions of $10,000.00 to the court;

(2) No more than 30 days after the date of this order, Ms. Smith and the Natural Resource Law Group must fully reimburse Ms. Johnson for any attorneys’ fees or costs paid by Ms. Johnson in conjunction with this case and file certification with the court that they have done so; and

(3) The court dismisses the complaint with prejudice.

IV. CONCLUSION

Based on the foregoing analysis, the court DISMISSES the case WITH PREJUDICE and SANCTIONS Ms. Smith as described above.

[1] See Pelzel v. GMAC Mortg. Grp., LLC, No. C16-5643RBL, Dkt. # 1 (filing a complaint on July 20, 2016, which alleges that “[u]pon information and belief, the subject loan was never consummated” and appears to suffer the same legal and factual deficiencies as this case); Elder v. Pinnacle Capital Mortg. Corp., et al., No. C16-5355RBL, Dkt. ## 1, 1-1 (filing a complaint on May 13, 2016, which is nearly identical to the complaint in this case and seeks to rescind a loan pursuant to TILA without providing a date for that loan); Velasco, et al. v. Mortg. Elec. Registration Sys., Inc., et al., No. C16-5022RBL, Dkt. # 30 (dismissing a claim for enforcement of TILA rescission filed more than six years after the date of the rescission notice on res judicata grounds); Maxfield v. Indymac Mortg. Servs., et al., No. C16-0564RSM, Dkt. # 3 (filing a complaint on April 19, 2016, which is nearly identical to the complaint in this case and seeks to rescind a loan pursuant to TILA without providing a date for that loan); Jenkins, et al. v. Wells Fargo Bank, N.A., No. 16-0452TSZ, Dkt. # 1 (filing a complaint on March 31, 2016, which is nearly identical to the complaint in this case and seeks to rescind a loan pursuant to TILA without providing a date for that loan); Burton, et al. v. Bank of Am., et al., No. C15-5769RBL, Dkt. # 20 at 5 (citing Jesinoski, 135 S. Ct. at 792) (“The Supreme Court’s Jesinoskidecision— quoted by the Burtons—reiterates that while the three year limitation period may not apply to the commencement of an action, it absolutely applies to the time frame for sending a rescission notice. . . . The Burtons’ loan was consummated in 2005. Their conditional right to rescind expired in 2008—seven years before they sent the notice upon which this action relies. . . .”);Johnson v. Green Tree Servicing, LLC, et al., No. C15-1685JLR, Dkt. # 22 at 8-9 (dismissing the case and rejecting the arguments that TILA “rescission is effective upon mailing, regardless of when mailing occurs” and that “the court cannot presume consummation until after discovery is conducted on the matter”); Stennes-Cox v. Nationstar Mortg., LLC, et al., No. C15-1682TSZ, Dkt. # 15 at 3-5 (rejecting the plaintiff’s arguments based on Jesinoski and Paatalo and dismissing with prejudice her claim seeking to rescind a loan eight years after consummation); Nieuwejaar, et al. v. Nationstar Mortg. LLC, et al., No. C15-1663JLR, Dkt. ## 22 at 6-7 (“Plaintiffs also attempt to address the timeliness issue by raising the possibility that the loan was never consummated. . . . Plaintiffs’ complaint contains no allegations regarding the failure to establish a contractual obligation. . . . Thus, Plaintiffs have not pleaded facts that allow the court to reasonably infer that Plaintiffs’ notice of rescission was effective. . . .” (internal citations omitted)), 28 at 7 (“Moreover, despite the court’s guidance that Plaintiffs must allege facts about the loan transaction before the court can infer a problem with consummation . . ., Plaintiffs’ second amended complaint does not contain a single factual allegation to suggest the subject loan was never consummated. . . . Thus, Plaintiffs again fail to allege facts from which the court can infer that their May 2015 notice of rescission was timely.” (internal citations omitted)).

[2] In Nieuwejaar, the plaintiffs—also represented by Ms. Smith—”attempt[ed] to address the timeliness issue by raising the possibility that the loan was never consummated.” Nieuwejaar, Dkt. # 22 at 6. However, the plaintiffs’ original complaint “contain[ed] no allegations regarding the failure to establish a contractual obligation,” and the court accordingly dismissed that complaint with leave to amend. Id. at 7-8. The plaintiffs’ amended complaint added the same conclusory allegation that Ms. Johnson alleges in this case—that “[u]pon information and belief, the subject loan was never consummated.” Id., Dkt. # 24 ¶ 12. In dismissing the amended complaint with prejudice, the court unequivocally indicated to the plaintiffs that this allegation is insufficient:

[L]ike their original complaint, Plaintiffs’ second amended complaint makes no factual allegations about consummation of the subject loan. . . . Plaintiffs’ only allegation about consummation is that “[u]pon information and belief, the subject loan was never consummated.” . . . That statement is a legal conclusion, which is not entitled to a presumption of truth. . . . At this stage, the court considers the factual allegations in the complaint in the light most favorable to Plaintiffs. . . . However, as the court explained in its previous order of dismissal, Plaintiffs must actually allege facts that, if true, would support their claims. . . . The court still cannot infer a problem with consummation because Plaintiffs still have not pleaded any facts to support such an inference.

Id., Dkt. # 28 at 7 (internal citations omitted).

These events occurred before Ms. Smith filed the instant case on behalf of Ms. Johnson. (SeeCompl.) Ms. Smith’s troubling inability or unwillingness to heed the court’s prior ruling further demonstrates that Ms. Smith is engaged in progressively more frivolous efforts at pleading around TILA’s period of repose despite lacking a factual basis for her allegations.

[3] This court has previously rejected this argument by Ms. Smith. See Johnson v. Green Tree Servicing, LLC, No. C15-1685JLR, 2016 WL 1408115, at *4 n.9 (W.D. Wash. Apr. 6, 2006) (“Ms. Johnson’s only challenge to consummation suggests that `if the loan was never actually funded, but was part of a hedge fund investing scheme . . . then the loan was never consummated, for example.’ This hypothetical fails to support a plausible inference that the subject loan was not consummated because Ms. Johnson does not connect her hypothetical situation with specific allegations about the subject loan.” (alteration in original) (internal citations omitted)).

[4] “In a table-funded loan, the originator closes the loan in its own name, but is acting as an intermediary for the true lender, which assumes the financial risk of the transaction.” Easter v. Am. W. Fin., 381 F.3d 948, 955 (9th Cir. 2004).

[5] Ms. Smith’s argument regarding consummation is also inconsistent with her theory of the case. If the subject loan was never consummated, Ms. Johnson need not bring “an enforcement action of the rescission notice.” (OSC Resp. at 1.)

[6] In previous cases before the court, Ms. Smith has advanced a different—but equally frivolous—legal theory in support of her clients’ untimely TILA rescission actions. In Nieuwejaar, Dkt. # 14 at 4-6, for instance, Ms. Smith argued that Jesinoski vitiates the three-year statute of repose imposed by TILA. According to this theory, irrespective of the timeliness or legal effect of an obligor’s notice of rescission, sending such notice triggers a 20-day period in which the lender must respond; otherwise the loan is deemed rescinded. Id. Ms. Smith supported that argument by taking out of context the Supreme Court’s statement that the right to rescind under TILA is effective upon providing notice to the creditor. Id. at 4 (“Justice Scalia made a point of repeating that the rescission was effective by operation of law on the date that it was mailed and pointed out that the statute makes no distinction between disputed and undisputed rescissions — they are all effective when mailed.”). However, as Judge Zilly made clear in sanctioning Ms. Smith, “because plaintiff’s attempt at rescission was void ab initio, there was no obligation for defendants to file a suit challenging the attempted rescission.” Johnson v. Nationstar Mortg., Dkt. # 35 at 4; see also Jesinoski, 135 S. Ct. at 791 (“The Truth in Lending Act gives borrowers the right to rescind certain loans for up to three years after the transaction is consummated. The question presented is whether a borrower exercises this right by providing written notice to his lender, or whether he must also file a lawsuit before the 3-year period elapses.”).

When confronted with Jesinoski at the hearing, Ms. Smith fell back on the factually unsupported and legally frivolous consummation argument described above. The consummation argument represents only the most recent permutation of Ms. Smith’s futile efforts to maintain frivolous, untimely TILA rescission claims in federal court.

[7] The court liberally considers granting amendment. See Fed. R. Civ. P. 15(a). However, after affording Ms. Smith numerous opportunities to persuade the court otherwise, the court concludes that Ms. Johnson’s case is based on frivolous legal theories. Accordingly, the court finds that amendment would be futile. See Greenspan v. Admin. Office of the U.S. Courts, No. 14cv2396 JTM, 2014 WL 6847460, at *11 (N.D. Cal. Dec. 4, 2014) (citing Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991)) (“While leave to amend is to be freely given under [Federal Rule of Civil Procedure] 15(a), the court denies the motion [to amend] because . . . amendment is futile under the legal theories asserted in the proposed [amended complaint].”).

In addition, the court considered requiring Ms. Smith to file a copy of this order with each new TILA-based complaint she files in this District. (See OSC at 9.) However, because that sanction could prejudice Ms. Smith’s present and future clients, the court declines to impose that sanction at this time.

 

Emergency Motion to Dismiss for Violation of Speedy Trial Rights

Someone wrote this Florida motion, and many people wrongfully incarcerated without a hearing, sometimes for YEARS, have filed it and won their freedom as a result.

Download the file, with an associated order here:

https://archive.org/details/EmergencyMotionToDismissForViolationOfSpeedyTrialRight

Also read this or this.

Florida Supreme Court Disciplines Scammer Neil Garfield

I have explained and complained for years that Neil Garfield functions like the pied piper of foreclosure defense and then does not deliver what clients need because he depends on a business model that requires lawyers knowingly to lead clients into the jaws of foreclosure by only PRETENDING to defending them while charging them monthly fees that ought to go to mortgage payments.

Now, as the Supreme Court of Florida has pointed out (see below news story), Garfield has practiced bilking his clients by overcharging, not delivering what clients pay for, not returning money, stonewalling, and so on. I consider that the tip of the iceberg because as the Maslanka case documents prove, Garfield submits frivolous nonsense that end up with his clients getting ordered to pay opposing counsel’s legal fees. And he has given clients and readers who foolishly hang on his every word terribly wrong ideas about the meaning of the 2015 SCOTUS opinion in the Jesinoski TILA Rescission case.

Sorry, Neil, but I believe the Florida Supremes should disbar you, and clients like Maslanka should sue you for legal malpractice. You never should have come out of retirement for you have cost truth-hungry mortgagors in default millions in lost real estate because you never taught them how to what you don’t know: attack the validity of the loan transaction, not of the foreclosure.

http://www.jaxdailyrecord.com/showstory.php?Story_id=548048

Why Government Destroyed Jury Powers and How to Restore Them

Introduction to Destruction of Jury Powers in Florida

The destruction of jury powers and the citizen’s power of private prosecution of criminals began in Florida with the dumbing down of the electorate after the Civil War. I personally consider the cause of that destruction as the liberation of Negroes and granting to them of equal rights as well as suffrage that would entitle them to sit on juries.

Modern political correctness dictates that I should never make such statements that seem to insult Negroes, but I insist on an honest discussion of the matter for the purpose of devising a solution that will restore jury powers.

I shall not attempt to prove that our republic’s governments constitute a monumental example of destruction of constitutional ideals through refusal to enforce the Bill of rights, through porous borders, deficit budgets, growing national debt, incessant no-win foreign wars, invitations to saboteur and terrorist refugees to settle in our nation, and massive election fraud, to name just a few problems. I consider those truths as self-evident. But I do assert that those government problem exists because of an array of problems with the electorate that descend from terrible (not just bad) parenting, including procreation out of wedlock, procreation by ignorant, irresponsible, and stupid parents, terrible education and training of children at home, and utter paucity of spousal training for people intending to cohabit or marry.

Let me share my perspective with you about a serious aspect of this problem: our petite and grand jury systems.

I discovered from a study of the Florida constitutions since the first one in 1838, nearly a decade after the publication of the first Florida Statutes in 1829 when Florida was a mere territory (1821, after Stonewall Jackson virtually stole Florida from Spain and England), an evolution in jury powers, not by proscription, but by mere mention.

Why this change? Because of the liberation of and suffrage by Negroes, to begin with, and it has become worse over the years. Arguably the justification for emasculating juries intensified with the 19th, and even more greatly the 26th Amendments, which granted suffrage to women and children over 18 respectively. You might even argue that the 13th, 14th, 15th, 19th, and 26th Amendments dumbed down the electorate so severely that nobody in his right mind in government could possibly allow juries to have the powers to protect the colossal increase in criminals the nation has suffered since the civil war.

How did those Amendments dumb down the electorate?

The average IQ of US Negroes today is around 85, the level needed to graduate from a normal 1960’s era high school. That means one half of them lack the cognitive ability to graduate. I imagine, but have no statistics to prove it, that Negroes at the time of the Civil War 150 years ago had a lower IQ, owing somewhat to poorer diets, poorer education, but mostly to limited miscegenation with Caucasians and other races, compared to today’s willy-nilly miscegenation. Now US Negroes are about 18% Caucasian. I don’t know the percentage 150 years ago. But I do know that the majority of productive Caucasians considered Negroes generally as stupid people, and that opinion, memorialized in TV shows like Amos and Andy, remained true when I was a child in the early 1950’s.

Take note that the US today contains about 80 million people warranting the appellation of “stupid” (IQ below 85) – 33 million Caucasians, 22 million Negroes, and 25 million Hispanics. The stupid comprise 25% of the population. That would not seem like too much of a problem in government, but unfortunately, most of them older than 18 can vote. That causes a huge problem because they can sit on juries, work in government, and help elect charlatans and fools to public office.

Prior to the Civil War, states limited suffrage to free Caucasian men of means. So, stupid people simply did not get the right to vote. After the Civil War, the 15the Amendment gave Negro men voting rights, albeit many states encumber voters with poll tax and other means of preventing Negroes from voting. But NONE of those measures prevented them from sitting on juries.

This, of course, bothered the Caucasians in government immensely. They could visualize Negroes on juries liberating fellow Negroes prosecuted for crimes just because of the defendant’s race, and without regard to evidence of guilt. And that would encourage more crime by Negroes. It must have driven the Caucasians crazy to contemplate such an outrage. We saw an example of such outrage in the OJ Simpson trial where Negro and other jurors embraced Johnny Cochran’s phony and simplistic “If it doesn’t fit you have to acquit” aphorism. Another jury in a civil trial determined that OJ has slaughtered his former wife and her boyfriend.

Foreseeing just such insanity as the acquittal of OJ Simpson, the powerful in Florida’s post-Civil-War government devised ways of stripping juries of their powers in order to minimize such predictable anomalies as the OJ Simpson acquittal. They changed the Florida Constitution’s language regarding petit and grand juries. They removed the petit jury’s power to judge the law, they removed the grand jury’s power to control overaggressive prosecution of non-capital felonies, and they gave much more power to prosecutors outside the reach of grand juries.

As a consequence, the grand jury has become severely hamstrung in protecting the citizenry against outrageous attacks and rights deprivations by government operatives. Bailiffs and the State Attorney stand guard over the jury room to both protect jurors and to prevent the citizens from presenting evidence of crimes, especially government operative crimes, to the jurors.

Back to the question of how the amendments dumbed down the electorate…

The 19th Amendment finally gave suffrage to women in August 1920, 41 years after Senator Sargent introduced it to Congress in 1878. The women argued that they have intelligence roughly equal to men’s. But the vast majority of women lived in subservience to men, particularly husbands, and few worked in professions or had much interest in politics. Their main interests had to do with owning and controlling their own real estate and money, and in relief from abusive or drunken husbands who beat them or squandered family money on boozing and gambling. But I believe that granting them voting rights effectively dumbed down the electorate because government imposed no measure of responsibility on them. And the huge female support for Socialist power brokers Barack Obama and Hillary Clinton underscore the validity of that concern.

The 26th Amendment gave suffrage to children over 18 in March 1971, based on the theory that if 18-year-olds could go to war and die in service of the nation, at least they should have the right to vote against such a terrible fate. I suppose Congress did not think it relevant that children’s brains have not become fully formed till age 25, that actuarial statistics prove conclusively that people under 25 cause the bulk of automobile accidents, presumably because of their impulsiveness, inexperience generally with life’s viscissitudes – in a word, their immaturity. Furthermore, they neglected to note that young people in the military have mature, higher ranking officers and non-commissioned officers figuratively standing on their necks to keep them in order 24/7. That impulsiveness and immaturity makes children under 21 BAD voters.

Solution

I personally want to see the Florida Constitution restore those old powers of juries to judge law as well as fact and to control prosecution of ALL felonies. I also want the Constitution to make it easier for citizens confidentially to present evidence of crimes to grand jurors without interference by bailiffs or state attorneys.

At the same time, I want the constitution to establish standards for suffrage in addition to those that presently exist. Electors and government employees should, without exception, should read and write English with high school graduate efficiency, know the constitutions of the US and the State fairly well, have a high school diploma, live financially self-sufficiently alone or within a family unit, and not subsist on government welfare. These requirements will restore integrity to the electorate and government. The best way to enforce those requirements: require all who would swear an oath to support the constitutions first to answer correctly 80 out of 100 constitution competency test questions in a formal examination. High school graduation should require it.

I personally believe the Constitution should require a minimum of 2 years of active military service and 2 years of part time militia service prior to registration as a voter. The Constitution should proscribe suffrage to people under 25 years of age, aliens, felons, mental incompetents, the stupid, welfare recipients, people who cannot pass the constitution competency test as above, people who have not graduated from high school, people who cannot read and write English with high school graduate proficiency, and people who are not financially self-sufficient.

As an alternative to such high standards for any kind of suffrage, those who don’t qualify to vote might enjoy suffrage with 1/100 or 1/1000 of a vote, and those who do qualify might have 1 vote, 10 votes, or 100 votes, depending on their advancements financially, educationally, artistically, or professionally. Such scaling of suffrage gives the incentive of greater electoral influence to those who contribute more to an advanced civilization.

As to the terrible prices the USA and its productive people pay for having 25% of the population in the incurable condition of stupidity (crime, welfare abuse, infrastructure burdens, lost productivity, government pandering)… it should become a crime to infect an innocent baby with the lifelong debilitating disease of stupidity. Governments should deal with that the same way they deal with car/truck crash fatalities – prevent it by requiring preventive measures (like seat belts that prevent many injuries from crashes). This prevention will eventually dramatically reduce the percentage of stupid people in the population. After all, only the stupid don’t know that stupidity nearly always has a genetic cause, and contraception in prospective stupid parents, by any necessary means, constitutes the only feasible prevention.

Bottom line, prudent people in government will not let the feckless destroy the functioning of their machinery of governing. Nor should they. The clamor for voting rights for irresponsible people caused government officials to reduce jury powers because they knew the irresponsibles would destroy the proper functioning of juries. In order to restore those powers, the voters MUST BECOME RESPONSIBLE. I have outlined some fairly simple, if difficult, ways to accomplish that. I say the time has come to progress in that direction.

Evidence

Back to the core point, I imagine you feel curious as to just HOW the Florida Constitution’s crafters engineered the destruction of jury powers. So, I have provided exhibits from all of the Florida Constitutions showing the specific text that contains the words jury, juror, juries, indict, indictment, present, presentment.

See for yourself the emasculation of jury powers, and organize to implement my suggestions above that will restore those powers to newly responsible electors and government employees who won’t abuse those powers.

Exhibits from the Florida Constitutions

The 1838 Constitution

The original constitution did not mention grand juries, but did mention their function, issuing indictments and presentments. It acknowledged that petite juries decided issues of law as well as fact. It acknowledged that grand juries may prohibit prosecution for any crime.

Section 6. That the right of trial by jury shall forever remain inviolate.

Section 10. That in all criminal prosecutions, the accused hath a right to be heard by himself or counsel, or both; to demand the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and in all prosecutions by indictment or presentment a speedy and public trial, by an impartial jury of the County or District, where the offense was committed; and shall not be compelled to give evidence against himself.

Section 15. That in all prosecutions and indictments for libel, the truth may be given in evidence; and if it shall appear to the jury that the libel is true, and published with good motives and for justifiable ends, the truth shall be a justification; and the jury shall be the judges of the law and facts.

Section 16. That no person shall be put to answer any criminal charge, but by presentment, indictment or impeachment.

Section 15. The style of all process shall be “the State of Florida,” and all criminal prosecutions shall be carried on in the name of the State of Florida, and all indictments shall conclude, “against the peace and dignity of the same.”

Section 22. The Governor and all civil officers shall be liable to impeachment for any misdemeanor in office: but judgment in such cases shall not extend further than to removal from office, and disqualification to hold any office of honor, trust, or profit under this State; but the parties shall nevertheless be liable to indictment, trial, and punishment according to law.

The 1861 Constitution did likewise

Section 6. That the right of trial by jury shall forever remain inviolate.

Section 10. That in all criminal prosecutions, the accused hath a right to be heard by himself or counsel, or both; to demand the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and in all prosecutions by indictment or presentment, a speedy and public trial by an impartial jury of the county or district where the offense was committed; and shall not be compelled to give evidence against himself.

Section 15. That in all prosecutions and indictments for libel, the truth may be given in evidence; and if it shall appear to the jury that the libel is true, and published with good motives and for justifiable ends, the truth shall be a justification; and the jury shall be the judges of the law and the facts.

Section 16. That no person shall be put to answer any criminal charge but by presentment, indictment or impeachment.

Section 26. Officers shall be removed from office for incapacity, misconduct, or neglect of duty; and where no special mode of trial is provided by the Constitution, the General Assembly shall pass a law providing the mode in which such trials shall be had, which shall be before a jury and in the Circuit Court.

Section 27. The General Assembly shall have power to create special tribunals for the trial of offenses committed by slaves, free negroes and mulattoes; and until the General Assembly otherwise provides, there is hereby created a Court in each county, which shall consist of two Justices of the Peace, and twelve citizens, being qualified Jurors of the county, who shall have power to try all cases of felony committed in their county by slaves, free negroes and mulattoes. A majority of said Court may pronounce judgment, and all trials before it shall be had upon the statement of the offense in the warrant of arrest, and without presentment or indictment by a Grand Jury. The Sheriff of the county shall act as the ministerial officer of said Court, and the citizens who, with the Justices, are to compose the same, shall be selected by said Justices and summoned to attend by the Sheriff; and appeals from the judgment of said Court shall be had to the Circuit Court of the county upon an order made by the Judge thereof, upon an inspection of the record of the trial, full minutes of which shall be made by the said Justices, and such appeal, when allowed, shall operate as a supersedeas of the judgment.

Section 2. All offenses against the militia laws shall be tried by Court Martial or before a court and jury, as the General Assembly may direct.

The 1865 Constitution

See here that the grand jury may prohibit prosecution of ANY criminal charge and petite jury judges law and facts.

Section 6. That the right of trial by jury shall forever remain inviolate.

Section 10. That in all criminal prosecutions, the accused hath a right to be heard by himself or counsel, or both; to demand the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and in all prosecutions by indictment or presentment, a speedy and public trial by an impartial jury of the county or district where the offense was committed; and shall not be compelled to give evidence against himself.

Section 15. That in all prosecutions and indictments for libel, the truth may be given in evidence; and if it shall appear to the jury that the libel is true, and published with good motives, and for justifiable ends, the truth shall be a justification; and the jury shall be the judges of the law and facts.

Section 16. That no person shall be put to answer any criminal charge, but by presentment, indictment or impeachment, except in such cases as the Legislature shall otherwise provide: but the Legislature shall pass no law whereby any person shall be required to answer any criminal charge involving the life of the accused, except upon indictment or presentment by a Grand Jury.

Section 2. All offenses against the Militia laws shall be tried by Court Martial, or before a court and jury, as the General Assembly may direct.

Section 2. In all criminal proceedings founded upon injury to a colored person, and in all cases affecting the rights and remedies of colored persons, no person shall be incompetent to testify as a witness on account of color; in all other cases, the testimony of colored persons shall be excluded, unless made competent by future legislation. The jury shall judge the credibility of the testimony.

Section 3. The Jurors of this State shall be white men, possessed of such qualifications as may be prescribed by law.

The 1868 Constitution.

The federal government forced Florida to scrap the 1865 Constitution and make changes related to Negroes. Wikipedia: “Florida became subject to the military authority of the federal government in 1867. Pursuant to an Act of Congress, General John Pope, Commander of the 3rd Military District, issued an order on April 8, 1867, dividing the 39 counties of the State into 19 districts for the election of delegates to a convention to frame a new State Constitution. The Constitution had to conform with the Federal Constitution and with the 13th and 14th Amendments. The Convention met in Tallahassee on January 20, 1868. As the Convention began its functions, bitter factions were formed, and only under after federal government intervention was the Convention brought under control. The Convention reconvened on February 18, 1868, and Horatio Jenkins, Jr. was elected President. The Constitution was adopted by the people of Florida in May 1868. It conferred electoral franchise upon “male persons” instead of “white male persons” as by the 1865 Constitution. With its acceptance by the federal military authorities, the State of Florida was recognized as being restored to the Union, and its Senators and Representatives were admitted to Congress.

GONE: the provision in previous Constitutions that jurors may judge the law and facts!

GONE: the grand jury power to prohibit prosecutions of misdemeanor crimes. And grand jury does not initiate presentment against impeachable officers. Furthermore, only “registered” voters without a criminal history could serve as jurors. I consider these changes a direct backlash against Congress for allowing Negroes their freedom and their incipient right to vote, the issue which had rattled legislators across the south and became a terrifying reality in February 1870 with the ratification of the 15th Amendment.

Section 3. The right of trial by jury shall be secured to all and remain inviolate forever; but in all civil cases a jury trial may be waived by the parties in the manner to be prescribed by law.

Section 8. No person shall be tried for a capital or otherwise infamous crime, except in cases of impeachment, and in cases of the militia when in active service in time of war, or which the State may keep, with the consent of Congress, in time of peace, and in cases of petit larceny, under the regulation of the Legislature, unless on presentment and indictment by a grand jury; and in any trial, by any court, the party accused shall be allowed to appear and defend in person and with counsel, as in civil actions. No person shall be subject to be twice put in jeopardy for the same offense, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken without just compensation.

Section 9. Every citizen may fully speak and write his sentiments on all subjects, being responsible for the abuse of that right, and no law shall be passed to restrain or abridge the liberty of speech or the press. In all criminal prosecutions and civil actions for libel the truth may be given in evidence to the jury, and if it shall appear that the matter charged as libelous is true, but was published for good motives, the party shall be acquitted or exonerated.

Section 29. The Assembly shall have the sole power of impeachment, but a vote of two-thirds of all the members present shall be required to impeach any officer; and all impeachments shall be tried by the Senate. When sitting for that purpose, the senators shall be upon oath or affirmation, and no person shall be convicted without the concurrence of two-thirds of the senators present. The Chief Justice shall preside at all trials by impeachment, except in the trial of the Chief Justice, when the Lieutenant Governor shall preside. The Governor, Lieutenant Governor, members of the Cabinet, justices of the Supreme Court, and judges of the circuit court shall be liable to impeachment for any misdemeanor in office; but judgment in such cases shall extend only to removal from office and disqualification to hold any office of honor, trust, or profit under the State; but the party convicted or acquitted shall nevertheless be liable to indictment, trial, and punishment according to law. All other officers who shall have been appointed to office by the Governor, and by and with the consent of the Senate, may be removed from office upon the recommendation of the Governor and consent of the Senate, but they shall nevertheless be liable to indictment, trial, and punishment according to law for any misdemeanor in office; all other civil officers shall be tried for misdemeanor in office in such manner as the Legislature may provide.

Section 12. Grand and petit jurors shall be taken from the registered voters of the respective counties.

Section 17. The Legislature shall not pass special or local laws in any of the following enumerated cases; that is to say, regulating the jurisdiction and duties of any class of officers, or for the punishment of crime or misdemeanor; regulating the practice of courts of justice; providing for changing venue of civil and criminal cases; granting divorces; changing the names of persons; vacating roads, town plats, streets, alleys, and public squares; summoning and empaneling grand and petit juries, and providing for their compensation; regulating county, township, and municipal business; regulating the election of county, township, and municipal officers; for the assessment and collection of taxes for State, county, and municipal purposes; providing for opening and conducting elections for State, county, and municipal officers, and designating the places of voting; providing for the sale of real estate belonging to minors or other persons laboring under legal disabilities; regulating the fees of officers.

Section 23. No person who is not a qualified elector of this State, or any person who shall have been convicted of bribery, forgery, perjury, larceny, or other high crime, unless restored to civil rights, shall be permitted to serve on juries.

The 1885 Constitution

Remember that women still could not serve on juries, but Negroes could. Grand Jury still has power to present for any felony (but not misdemeanors). The impartial petite jury requirement could serve to keep Negroes out of juries in trials of Negroes. Here, though the Constitution seriously interferes with the traditional role of the grand jury by empowering prosecutors. Nevertheless it suggests that the grand jury can indict officers the governor removes. Indictment implies information by the prosecutor requesting the indictment.

Section 3. The right of trial by jury shall be secured to all, and remain inviolate forever.

Section 10. No person shall be tried for a capital crime or other felony, unless on presentment or indictment by grand jury, except as is otherwise provided in this Constitution, and except in cases of impeachment, and in cases in the militia when in active service in time of war, or which the State, with the consent of Congress, may keep, in time of peace.

Section 11. In all criminal prosecutions the accused shall have the right to a speedy and public trial, by an impartial jury, in the county where the crime was committed, and shall be heard by himself, or counsel, or both, to demand the nature and cause of the accusation against him, to meet the witnesses against him face to face, and have compulsory process for the attendance of witnesses in his favor, and shall be furnished with a copy of the indictment against him.

Section 13. Every person may fully speak and write his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for libel the truth may be given in evidence to the jury, and if it shall appear that the matter charged as libelous is true, and was published for good motives, the party shall be acquitted or exonerated.

Section 28. All offenses triable in said Court shall be prosecuted upon information under oath, to be filed by the prosecuting attorney, but the grand jury of the Circuit Court for the county in which said Criminal Court is held may indict for offenses triable in the Criminal Court. Upon the finding of such indictment the Circuit Judge shall commit or bail the accused for trial in the Criminal Court, which trial shall be upon information.

Section 29. No private property nor right of way shall be appropriated to the use of any corporation or individual until full compensation therefor shall be first made to the owner, or first secured to him by deposit of money; which compensation, irrespective of any benefit from any improvement proposed by such corporation or individual, shall be ascertained by a jury of twelve men in a court of competent jurisdiction, as shall be prescribed by law.

Section 38. The number of jurors for the trial of causes in any court may be fixed by law but shall not be less than six in any case.

Section 29. The House of Representatives shall have the sole power of impeachment; but a vote of two-thirds of all members present shall be required to impeach any officer; and all impeachments shall be tried by the Senate. When sitting for that purpose the Senators shall be upon oath or affirmation, and no person shall be convicted without the concurrence of two-thirds of the Senators present. The Senate may adjourn to a fixed day for the trial of any impeachment, and may sit for the purpose of such trial whether the House of Representatives be in session or not, but the time fixed for such trial shall not be more than six months from the time articles of impeachment shall be preferred by the House of Representatives. The Chief Justice shall preside at all trials by impeachment except in the trial of the Chief Justice, when the Governor shall preside. The Governor, Administrative officers of the Executive Department, Justices of the Supreme Court, and Judges of the Circuit Court shall be liable to impeachment for any misdemeanor in office, but judgment in such cases shall extend only to removal from office and disqualification to hold any office of honor, trust or profit under the State; but the party convicted or acquitted shall nevertheless be liable to indictment, trial and punishment according to law.

Section 15. All officers that shall have been appointed or elected, and that are not liable to impeachment, may be suspended from office by the Governor for malfeasance, or misfeasance, or neglect of duty in office, for the commission of any felony, or for drunkenness or incompetency, and the cause of suspension shall be communicated to the officer suspended and to the Senate at its next session. And the Governor, by and with the consent of the Senate, may remove any officer, not liable to impeachment, for any cause above named. Every suspension shall continue until the adjournment of the next session of the Senate, unless the officer suspended shall, upon the recommendation of the Governor, be removed; but the Governor may reinstate the officer so suspended upon satisfactory evidence that the charge or charges against him are untrue. If the Senate shall refuse to remove, or fail to take action before its adjournment, the officer suspended shall resume the duties of the office. The Governor shall have power to fill by appointment any office, the incumbent of which has been suspended. No officer suspended who shall under this section resume the duties of his office, shall suffer any loss of salary or other compensation in consequence of such suspension. The suspension or removal herein authorized shall not relieve the officer from indictment for any misdemeanor in office.

Section 20. The Legislature shall not pass special or local laws in any of the following enumerated cases: that is to say, regulating the jurisdiction and duties of any class of officers, except municipal officers, or for the punishment of crime or misdemeanor; regulating the practice of courts of justice, except municipal courts; providing for changing venue of civil and criminal cases; granting divorces; changing the names of persons; vacating roads; summoning and empaneling grand and petit juries, and providing for their compensation; for assessment and collection of taxes for State and county purposes; for opening and conducting elections for State and county officers, and for designating the places of voting; for the sale of real estate belonging to minors, estates of decedents, and of persons laboring under legal disabilities; regulating the fees of officers of the State and county; giving effect to informal or invalid deeds or wills; legitimizing children; providing for the adoption of children; relieving minors from legal disabilities; and for the establishment of ferries.

1968 Constitution

This Constitution completed the destruction of Grand Jury powers to prohibit prosecution except in capital cases. It also makes no provision for petit juries to judge law as well as facts.

Section 15. Prosecution for Crime; Offenses Committed by Children.

(a) No person shall be tried for capital crime without presentment or indictment by a grand jury, or for other felony without such presentment or indictment or an information under oath filed by the prosecuting officer of the court, except persons on active duty in the militia when tried by courts martial.

(b) When authorized by law, a child as therein defined may be charged with a violation of law as an act of delinquency instead of crime and tried without a jury or other requirements applicable to criminal cases. Any child so charged shall, upon demand made as provided by law before a trial in a juvenile proceeding, be tried in an appropriate court as an adult. A child found delinquent shall be disciplined as provided by law.

Section 16. Rights of Accused. In all criminal prosecutions the accused shall, upon demand, be informed of the nature and cause of the accusation against him, and shall be furnished a copy of the charges, and shall have the right to have compulsory process for witnesses, to confront at trial adverse witnesses, to be heard in person, by counsel or both, and to have a speedy and public trial by impartial jury in the county where the crime was committed. If the county is not known, the indictment or information may charge venue in two or more counties conjunctively and proof that the crime was committed in that area shall be sufficient; but before pleading the accused may elect in which of those counties he will be tried. Venue for prosecution of crimes committed beyond the boundaries of the state shall be fixed by law.

Section 22. Trial by jury. The right of trial by jury shall be secure to all and remain inviolate. The qualifications and the number of jurors, not fewer than six, shall be fixed by law.

Section 11. Prohibited Special Laws. (a) There shall be no special law or general law of local application pertaining to: (5) petit juries, including compensation of jurors, except establishment of jury commissions;

Section 9. Criminal Courts of Record.(5) Indictment and Information. All offenses triable in said court shall be prosecuted upon information under oath, to be filed by the prosecuting attorney, but the grand jury of the circuit court for the county in which said criminal court is held may indict for offenses triable in the criminal court. Upon the finding of such indictment the circuit judge shall commit or bail the accused for trial in the criminal court, which trial shall be upon information.

Section 12. Juvenile Courts; Establishment; Jurisdiction; Judge; Officers; Procedure. The legislature shall have power to create and establish juvenile courts in such county or counties or districts within the state as it may deem p roper, and to define the jurisdiction and powers of such courts and the officers thereof, and to vest in such courts exclusive original jurisdiction of all or any criminal cases where minors under any age specified by the legislature from time to time are accused, including the right to define any or all offenses committed by any such persons as acts of delinquency instead of crimes; to provide for the qualification, election or selection and appointment of judges, probation officers and such other officers and employees of such courts as the legislature may determine, and to fix their compensation and term of office; all in such manner, for such time, and according to such methods as the legislature may prescribe and determine, without being limited therein by the provisions in this constitution as to trial by jury in Sections 3 and 11 of the Declaration of Rights, as to the use of the terms “prosecuting attorney” and “information” in Section 10 of the Declaration of Rights, as to election or appointment of officers in Section 27 of Article III, as to jurisdiction of criminal cases in Sections 6, 7, 9, and 11 of this Article, as to original jurisdiction of the interests of minors in Section 6 of this Article, and as to style of process and prosecuting in the name of the state in Section 20 of this Article, or other existing conflicting provisions of this constitution

Section 22. Juries. The number of jurors for trial of causes in any court may be fixed by law but shall not be less than six in any case.

Section 7. Suspensions; Filling Office during Suspensions. (c) By order of the governor any elected municipal officer indicted for crime may be suspended from office until acquitted and the office filled by appointment for the period of suspension, not to extend beyond the term, unless these powers are vested elsewhere by law or the municipal charter.

SECTION 12. Discipline; removal and retirement.— (a) JUDICIAL QUALIFICATIONS COMMISSION.—A judicial qualifications commission is created. (5) The commission shall have access to all information from all executive, legislative and judicial agencies, including grand juries, subject to the rules of the commission. At any time, on request of the speaker of the house of representatives or the governor, the commission shall make available all information in the possession of the commission for use in consideration of impeachment or suspension, respectively.

Jesinoski TILA Chickens Come home to Roost – Trial Court Denies Rescission

Garfield Wrong – Jesinoski Loses, Big Time

Jesinoski v. Countrywide Home Loans, Inc., 134 S. Ct. 1935 – Supreme Court 2014

JESINOSKI v. Countrywide Home Loans, Inc., Dist. Court, Minnesota 2016

Neil Garfield and his minions and fellow incompetent “Lawyers who get it” across America have ballyhooed the January 2015 SCOTUS decision that Larry and Cheryle Jesinoski did not have to sue for TILA rescission within the 3 year period of repose after loan consummation for violation of the Truth In Lending Act by failing to give the necessary disclosures of the right to rescind. Well, the case went back to the US 8th Circuit Court of Appeals and thence back to the Minnesota District Court for trial of the question of rescission for the Jesinoskis. A few days ago Judge Donovan Frank issued the below Order dashing Jesinoskis’ ill-founded hopes. The order granted summary judgment to the creditor because Jesinoskis had signed an acknowledgment of receipt of the disclosures, and because they did not have the money to tender as required by TILA for a rescission. It also denied statutory damages because no TILA violations occurred, even thought Jesinoskis claimed they spent $800,000, mostly in lawyer fees, prosecuting their case all the way up to the US Supreme Court and back.

It looks to me like they stupidly heeded some nonsense Garfield or one of his foreclosure pretense defense attorney buddies “who get it” had written. Ever since the 2015 SCOTUS Jesinoski opinon, Garfield has insisted that every mortgage loan borrower should send a notice of TILA rescission to the creditor. He has insisted that the creditor must terminate the lien immediately upon receipt of notice of rescission, AND tender return of what the borrower paid. The Jesinoski opinion shows with crystal clarity why Garfield was dead wrong – many borrowers have no just reason to rescind, and creditors would be idiots to go through the rescission trouble without just cause.

WARNING to Home Loan Borrowers:

Listen to foreclosure pretense defense lawyers at your peril. Most will not diligently look for injuries you have suffered in your loan (TILA violations is one kind, but many other kinds are typical), and most litigate ONLY to delay the ultimate loss of your home. Both delay and non-diligence violate bar rules, so you should file a bar complaint against your attorney if he did that. And you should get a competent professional to examine your loan transaction comprehensively to dig out the valid causes of action you have against the appraiser, mortgage broker, loan officer, title company, lender, servicer, creditor, or other scalawag involved in your loan process. The mortgage exam will give you the evidence of your injuries to show the judge, AND it will give you the basis for suing your incompetent, negligent, scamming attorney for legal malpractice.

Note to Borrowers Hoping for a Favorable Yvanova Decision

Yvanova v. New Century Mortgage Corp., 365 P. 3d 845 – Cal: Supreme Court 2016

Forget about it. The California Supreme Court ruled in the Yvanova case that the borrower has the right to challenge the right of a creditor to foreclose a loan that the borrower breached. Yvanova had lost her house to foreclosure, and sued for wrongful foreclosure because New Century, instead of its bankruptcy liquidation trustee, sold Yvanova’s loan to a securitization trust sponsor. Yvanova claimed New Century did not have the right to do that. Now her case heads back to trial court like Jesinoskis’ did. She will get a similar result. After she has blown all that money of her husband’s on pointless litigation, probably at Garfield’s urging, she will now learn the hard way that the foreclosure was legitimate because she has no right to challenge the validity of New Century’s sale of her loan because she was not a party to it, did not get injured by it, and had no beneficial interest in it. She has told me that I don’t understand her case. Oh, yes I do. And she will lose it.

TRENDING: Creditors make Foreclosed Borrowers Pay Legal Fees

I have seen several cases recently where the foreclosing creditor has asked the court to award legal fees, which the borrower must pay, for litigation related to the foreclosure. Most borrowers do not put up a fight. But look at the Jesinoski and Yvanova cases. They have dragged on for years, stupidly. Creditors have grown sick and tired of the frivolous efforts by borrowers to challenge righteous foreclosures. Jesinoski said he spent nearly $800,000 on his legal fees. I imagine he padded the bill, but I imagine the creditor padded theirs even more. Maybe they will ask the court to award legal fees and costs. In my opinion, they should.

I shudder to contemplate the damage Neil Garfield has done to borrowers across America by encouraging them to fight pointless battles (hiring him as a consultant or attorney, of course) to defeat foreclosure. You cannot win with his ridiculous methods.

If you want to win, and I mean win MONEY or its equivalent, get your mortgage examined (call me for a recommendation), and go on the attack.
Get more info at http://mortgageattack.com.

The upshot of Terry Trussell’s conviction and 105 month sentence.

Look up Terry Trussell’s case documents at the Dixie County Florida clerk‘s web site. In June a jury found Terry (70) guilty of several counts of impersonation and intimidation of public officers when he sought to get them arrested for a presentment he engineered under the common law or citizens grand jury. Last week the court sentenced him to 105 months in prison.

On the last day of the trial, I wrote this:

Terry Trussell just sent me word that the Jury is out.  His trial started Monday, 6 June 2016, and ended today.

Naturally, Terry hopes they will acquit him of the charges of impersonating a public officer and simulated legal process in a case that has drug on for two years.  Court officials ran Terry off the real Dixie County FL grand jury, and he proceeded to work with the common law grand jury to indict half a score of officials including former governor Charlie Crist and local school board members for their accepting federal bribe money for shoving the Common Core public school curriculum down the throats of the public.

Tomorrow, Terry will busy himself either preparing a civil lawsuit against his antagonists, or getting used to a jail cell, depending upon the Jury’s verdict.

While you sit on the edge of your seat, enjoy the videos posted at fogbow for the pleasure of snarky, sarcastic lawyer types who have, in their typical incognito fashion behaved like spoiled, supercilious high school students by belittling Terry and his attorney Inger Garcia thoroughout the 4-day proceeding.  They pull no punches in expressing their loathing and revulsion for Sovereign Citizens or any patriotic Americans who have taken activist stances against what they consider government corruption.  See the videos here.

http://www.thefogbow.com/forum/viewtopic.php?f=26&t=8899

As much as I love to hate those fogbow assholes, I really appreciate one of their members’ posting the videos, particularly since none of Terry’s patriot community supporters bothered to do it.

Many liberal elitists chortled with joy at the conviction. But many of a more conservative bent considered it a miscarriage of justice because the common law grand jury’s efforts constituted a first amendment expression of the right to assemble peaceably and to instruct the government and petition for redress. Terry’s legal team hoped to make that point but failed in the effort. One litigation consultant had recommended Terry’s falling on his sword with the “dumbass defense,” confessing wrongdoing because of listening to bad advice from patriot goofballs. His detractors consider Terry a goofball… and criminal, of course. I consider the whole mess TRAGIC.

The upshot: DON’T what Terry did. Common law grand juries have no authority to get people arrested. Instead, push for a constitutional amendment strengthening the powers of grand juries.

Meanwhile, the defense team prepares for an appeal. Time will tell of its effectiveness.

I discovered from a study of the Florida constitutions that government began stripping powers from petit and grand juries when the US government liberated Negroes and gave them the right to vote. About that time governments also stripped victims of crimes of the power to prosecute their own cases against defendants.

You see the issue here? Liberty comes at the price of commensurate responsibility. Anybody who messes with that will have their liberties stripped. Today America has 80 million inhabitants too stupid to graduate from high school. They, welfare recipients, children over 18, indigents, and all manner of non-productive, irresponsible people have voting rights, so long as they are not , felons, or aliens, under 18, or adjudged mentally incompetent. And as voters, they can sit on juries. No wonder government will not allow common law grand juries, and carefully controls statutory petite and grand juries.

To fix this, the electorate must become more responsible. Activists need to lobby the Legislature to change laws to start restricting voting rights to competent people, such as by requiring them to pass a constitution competency test with high marks (80%) prior to swearing any oath to support the constitution. This will keep irresponsible people out of government and off the voter roles and juries. Then government won’t have an objection to reinstating powers of juries.

It would help the productivity of the nation to encourage average and smart families to have more children, and stupid families to stop procreating altogether. It should be a crime for parents knowingly to inflict an innocent baby with lifelong debilitating disease like stupidity, don’t you think?

Call for Knowledge Reports about Charles Edward Lincoln III; Demand for immediate return my computer

How to Report Your Knowledge of Charles Edward Lincoln III’s Crimes and Wrongdoing

I hereby request that all who read this and have any knowledge of crimes and/or other wrongdoing by felon and disbarred former attorney Charles Edward Lincoln III (a.k.a. Charles Edward Linck III) (the “target”) to send me that knowledge in writing by email, attaching any evidence like emails, photos, testimonies, or documents by email.

I seek your knowledge reports so that I might use it to bring Lincoln to his deserved and long-overdue justice through government and Bar authorities.

I have become his victim AND he has confounded his injury of me by repeatedly falsely accusing me, lodging false excuses, and threatening to use litigation purely for the purpose of hurting me for my efforts to get him to return my property to me (see my comments below). I seek to stop his campaign of such terror against myself and others by letting the authorities hold him accountable.

Will you collaborate with me? I am not not Lincoln’s only victim. Perhaps Lincoln victimized you or someone you know. Perhaps he solicited sexual favors from you in exchange for legal services. Perhaps he took money, lodging, clothing, valuables, transportation, sexual favors, etc., from you and did not deliver the service he promised in exchange. Perhaps he exposed or threatened to expose personal details about your life or affairs in order to extort money from you. Perhaps he told you he had legal expertise and then ended up making you lose your case because of his incompetence or flawed legal strategy. Perhaps he pretended he did paralegal work for a real attorney, but in reality ran the entire case and only used that attorney as a front for legal practices that violated the terms of his disbarment. Perhaps he has stolen contraband and hidden it away in his hiding-hole, and left evidence around for you to see it or learn about it.

Regardless of what low-down, no-good, dirty, rotten, scandalous, crooked, or criminal behavior of Lincoln’s that you know about, I actively seek knowledge and evidence of that behavior, Lincoln’s suspicious activities, his victims, his enablers, his whereabouts, his residence, the location of his hiding hole and his cache for stolen goods, and any active bench warrants against him.. So if you know of anything, please share it with me in writing, AND feel free to call me to discuss it further.

I shall assume you wish to keep your comments and identity confidential unless you tell me otherwise.

Please forward this request to any and all others who have or should have knowledge of crimes, crookedness, larceny, con-games, ill-gotten-gains, flimflams, cork screwing, dirty dealing, sex solicitation, holing up with underage girls, and other misfeasance by Lincoln, or who have complaints against Lincoln, or for whom Lincoln has performed legal services of any kind since his disbarment.

Special Bonus: for all of you whom Lincoln has flimflamed, bilked, intimidated, robbed, molested, etc: Charles Edward Lincoln III has announced his intention to get Florida’s Governor to restore his civil rights and get the Florida Bar to restore his membership. If you don’t want to see such a travesty occur, send your knowledge reports to me ASAP. The Bar disciplinarians want to know of his crookedness so they can justly deny his membership. Remember that Lincoln once held Bar memberships in California, Texas, and Florida. The California Bar record shows the story of his disbarment and felony conviction.

California Bar Journal Discipline Summaries

Summaries from the California Bar Journal are based on discipline orders but are not the official records. Not all discipline actions have associated CBJ summaries. Copies of official attorney discipline records are available upon request.

January 11, 2004

CHARLES EDWARD LINCOLN [#171793], 44, of Cedar Park, Texas was disbarred Jan. 11, 2004, and was ordered to comply with rule 955.

In 2000, Lincoln was convicted in Texas on a federal charge of falsely representing his Social Security number, a felony. As a result, he gave up his license to practice in the state.Originally charged with five felonies, the case resulted from Lincoln applying for a checking account using a false Social Security number.In a second matter, he was disbarred from U.S. District Court for the Western District of Texas after a federal judge requested an investigation of Lincoln because two of his clients had a falsified receipt. The receipt purported to be from the federal court clerk and represented funds the clients had given Lincoln. The clients believed Lincoln was depositing their money in an escrow account related to their case.Two days before a hearing by the federal court’s admissions committee, Lincoln went to his clients’ home, instructed them not to tell the judge that he gave them the receipt, which he asked them not to produce, and he gave the clients a cashier’s check for $6,000. He did not appear at the hearing.In a previous lawsuit, the same judge determined that Lincoln was involved in discovery abuse and filed duplicative motions. The judge issued sanctions and dismissed the lawsuit with prejudice.The State Bar Court determined that Lincoln’s misconduct in Texas amounted to violations of California law as well. March 19, 2002

CHARLES EDWARD LINCOLN [#171793], 42, of Cedar Park, Texas was placed on interim suspension March 19, 2002, following a conviction for false representation of a Social Security number. He was ordered to comply with rule 955.

http://members.calbar.ca.gov/fal/Member/Detail/171793

Read the Court Order: http://members.calbar.ca.gov/courtDocs/01-C-04695.pdf

The Texas disbarment summary:

“Aug. 22, the Supreme Court of Texas accepted the resignation, in lieu of discipline, of Charles Edward Lincoln [#00791116], 40, of New Orleans, La. The court found that on March 17, 2000, Lincoln entered into a plea agreement in Cause No. A-99-CR-275-WS, The United States of America v. Charles Edward Lincoln, wherein he pleaded guilty to falsely representing his social security number (42 USC §408(a)(7)(B)). As a condition of the plea agreement, Lincoln agreed to resign from the practice of law in Texas in lieu of disciplinary proceedings by the State Bar of Texas.”

Bob Hurt
2460 Persian Drive #70
Clearwater, FL 33763
727 669 5511
Email me

To Charles Edward Lincoln III on 25 June 2016

Please return my computer:

I loaned you my Toshiba e205 laptop computer in the last days of December 2014 with express instructions not to remove it from the Safety Harbor Florida residence where you lived as a guest. In mid February I demanded that you return it. At the end of March 2015 you absconded with it to New Orleans. I asked repeatedly for you to return it. You gave excuses, stonewalled, and generally refused. You claimed that it stopped working and you wanted to retrieve your files from it. I believe you broke the computer by dropping it, or overheating it by blocking ventilation, or you pawned or sold it. I persisted in my requests for you to return the computer immediately. Now one year later you still have not returned it. Bottom line, you have stolen my computer and my personal files and information on that computer. Furthermore you stole my identity by logging into my PACER account as though you were me and ran up charges of around $56 around a year ago, and you would have continued doing so had I not changed the account login. You have sinned against me grievously, for that computer cost me $1100 and I had used it for the equivalent of less than 6 months prior to lending it to you. And last weekend you threatened to sue me for a trumped up, nonsensical reason.

I demand that you return the computer immediately, compensate me for the PACER charges, and compensate me for the repair charges for the computer.

Matthew 18

If Your Brother Sins Against You

15 m“If your brother sins against you, ngo and tell him his fault, between you and him alone. If he listens to you, you have ogained your brother. 16 But if he does not listen, take one or two others along with you, that every charge may be established pby the evidence of two or three witnesses. 17 If he refuses to listen to them, qtell it to the church. And if he refuses to listen even to the church, rlet him be to you as sa Gentile and sa tax collector. 18 Truly, I say to you, twhatever you bind on earth shall be bound in heaven, and whatever you loose on earth shall be loosed6 in heaven. 19 Again I say to you, if two of you uagree on earth about anything they ask, vit will be done for them by my Father in heaven. 20 For where two or three are wgathered in my name, xthere am I among them.”

Charles, so far I have tried Jesus’ first two recommended methods above to no avail. Now I’d take it to the head of the Episcopal church, but you don’t accept its authority over you or you would already have returned my computer. I guess your real church is government. Shall I take the issue there with a criminal complaint for theft and exploitation of an elderly person or disabled adult? You have admitted repeatedly to the fact that you have my computer, and clearly you do have it or converted it without my permission and in spite of my demand that you return it to me. How will that look to your priest, the prosecutor, if I file a criminal complaint against you?

Did you really steal Michael Santomauro’s antique book from his New York apartment while visiting there? Did you store it in the Mantoloking, NJ house? Did you scam from Michael Mastoris on the pretense of helping him beat foreclosure? Would police like to know about your activities? Do you want to remain a hunted man all over America, knowing that if the authorities know your whereabouts, they will have a warrant for your arrest?

Why don’t you simplify your difficulties by returning my computer, before your difficulties become nightmares? I have only just begun to round up your other victims in the hopes that some will want you brought to justice.

Return my computer NOW to avoid bringing irreversible trouble upon yourself. If I don’t receive it shortly, I shall accelerate my efforts to bring official attention to your crimes and encourage an official search for your contraband.

Send the computer to the address below.

Sincerely,

Bob Hurt

Bob Hurt
👓 Blog 1 2 f t
Email 📞 (727) 669-5511
2460 Persian Drive #70
✈ Clearwater, FL 33763 USA
Donate to My Scholarship Fund
Subscribe to Lawmen E-Letter
🔨 Learn How to Win in Court
Mortgage Attack to Beat the Bank