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Thursday, November 3, 2016

BANK COUNTERCLAIM

«True_Name»
c/o «True_Street»
«True_City»
«De_Jure_State_Title» «True_Postal_Code» Phone: (XXX) XXX-XXXX
Counterclaimant in propria persona, sui juris
State Of «De_Jure_State_Title»
In the District Court for the «Court_District_»th Judicial
District
«Creditor» |
Counter defendant |
| Case No. «Court_Case_Number»
-vs- |
|
«True_Name» |
|COUNTERCLAIM AND RESPONSE
Counterclaimant in propria persona, sui juris |TO COMPLAINT/JUDICIAL NOTICE
|
Counterclaimant is before this court without prejudice and without waiving any rights, remedies or defenses statutorily or procedurally. Counterclaimant herein requests this court to conform to and adhere to the strictest fiduciary duties clearly imposed upon it. See also Judicial Notice section FIDUCIARY DUTIES herein and below.
To the Counter defendant and «Creditor» and its undersigned counsel, the following response is made to PLAINTIFF’S COMPLAINT. Counterclaimant denies Plaintiff’s allegation that he has not presented any just reasoning in standing or right of relief in Plaintiff’s Complaint and asserts to the contrary, that Counter defendant «Creditor» is
precluded by applicable and governing Federal Law and the United States Statutes at
Large, Exhibit 1 attached hereto, from bringing any alleged right, title, or interest, let alone any other claim(s). Counterclaimant asserts that the following U.S. Statutes at
Large and their corresponding Code Sections preclude the Counter defendants from
bringing this claim.
1. «Creditor» is a Trust Company and as such is prohibited by the National Bank or
Currency Act of June 3, 1864 at 13 Stat. 99, Chp. 106 sections 8, 27, 28, 35, 37 & 39
and Title 62 sections 5187, 5201, & 5207, Counterclaimants Exhibit A, of the Revised Statutes of the United States from countersigning or delivering any of its circulating notes to any association, company, or person. To wit: “No officer acting under the provisions of this Title shall countersign or deliver to any association, or to any other company or person, any circulating notes contemplated by this Title, except in accordance with the true intent and meaning of its provisions. Every officer who violates this section shall be deemed guilty of a high misdemeanor, and shall be fined not more than double the amount so countersigned and delivered, and imprisoned not less than one
year and not more than fifteen years.” This section as been codified into Title 18 Section
334.
2. The National Bank or Currency Act of June 3, 1864 at 13 Stat. 99, Chp. 106 sections
8, 27, 28, 35, 37, & 39 and Title 62 Sections 5187, 5201, & 5207 of the Revised Statutes of the United Statutes states: “No association shall hereafter offer or receive United States notes or national-bank notes as security or as collateral security for any loan of
money, or for a consideration agree to withhold the same from use, or offer or receive the custody or promise of custody of such notes as security, or as collateral security, or consideration for any loan of money. Any association offending against the provisions of this section shall be deemed guilty of a misdemeanor, and shall be fined not more than one thousand dollars and a further sum equal to one-third of the money so loaned. The
officer or officers of any association who shall make any such loan shall be liable for further sum equal to one-quarter of the money loaned; and any fine or penalty incurred by a violation of this section shall be recoverable for the benefit of the party bringing such
suit.” This section has been codified at Title 12 section 582.
3. Further in conformity to these two sections and the Statutes at large and in support thereof 12 CFR Section 24 paragraph 7 under Corporate powers of associations States: “ .
. . . . . . . . . . . by loaning money on personal security; and by obtaining, issuing, and circulating notes according to the provisions of Title 62 of the Revised Statutes.” That further «Creditor» is prohibited by this section from selling securities and stock for its own account to wit: “The business of dealing in securities and stock by the association shall be limited to purchasing and selling such securities and stock without recourse, solely upon the order, and for the account of, customers, and in no case for its own account, and the association shall not underwrite any issue of securities or stock”.
4. Counterclaimant further asserts that the Counter defendants do not have a purchase or sale agreement with the Counterclaimant nor do they have a Bill of Sale for the property
in question. (1) Title to goods cannot pass under a contract for sale prior to their
identification to the contract see Article 2 section 2-501, and unless explicitly agreed the
buyer acquires by their identification a special property as limited by this act. Any retention or reservation by the seller of the title [property] in goods shipped or delivered to the buyer is limited in effect to a reservation of a security interest. Subject to these
provisions and to the provisions of the Article on Secured Transactions [Article 9], title to goods passes from the seller to the buyer in any manner and on any conditions explicitly
agreed on by the parties. See also Judicial Notice section CASES REGARDING AGREEMENTS herein and below.
5. A rejection or other refusal by the buyer to receive or retain the goods, whether or not justified, or a justified revocation of acceptance revests title to the goods in the seller.
S uch revesti n g occu rs b y operati on of law and is not a “sale”. See also Judicial Notice section CASES REAGRDING AGREEMENTS herein and below. Counter defendants have supplied no legal evidence showing ownership or a title interest in the property or real estate, which is the subject of their alleged claim. In view of the prohibitions
imposed upon the Counter defendants by the National Bank or Currency Act sections 8,
27, 28, 35, 37, & 39 and Title 62 sections 5187, 5201, 5207 and sections 581, 582 of
Title 12 and Title 18 section 334, on using their capital stock as security or collateral on
the loan of money, where did Counter defendants obtain the alleged collateral, security
and money for the alleged loan? And how did Counter defendant obtain a secured
interest, attachment, enforceability, entitlement, priority and possession over
Counterclaimant’s property? When they are precluded by law from loaning money on
their capital stock.
6. Counterclaimant asserts further that Counter defendant «Creditor» is a member of the Federal Reserve System thus is under the venue and jurisdiction and prohibition of the above Statutes and Code Sections by operation of law.
7. The National Bank or Currency Act of June 3, 1864, at 13 Stat. 99 Chp. 106 sections
8, 27, 28, 35, 37, 39 and Title 62 sections 5187, 5201, 5207 and Title 18 section 334,
and Title 12 sections 83, 581 & 582 are the current standing and enacted legal and positive evidence that Counter defendant «Creditor» never loaned Counterclaimant any
money, that there is no debt due Counter defendant from any alleged loan from the use of «Creditor»’s capital.
8. That Counterclaimant has therefore established a case, in compliance with the Congressional and Legislative intent, in which the legal evidence and law is in Counterclaimant’s favor and all legal evidence and law, enacted into positive law, is sufficient to support a certain conclusion. See also Judicial Notice section OFFICIAL SOURCE OF LAW herein and below:
9. «Creditor», as the alleged PLAINTIFF, and moving party has the burden of showing that it made a loan or discount on its capital as collateral or security and that in face of the above Statutes clearly has failed to meet that burden. The burden of proof imposed by the law upon one who must prove the existence of a fact or a thing necessary to proven in the prosecution or defense of a lawsuit means the obligation to show it by proof. See also
Judicial Notice section BURDEN OF PROOF herein and below:
10. Counterclaimant specifically objects to the alleged ASSIGNMENT OF NOTE AND
MORTGAGE shown as EXHIBIT A under the Best Evidence rule
«De_Jure_State_Title» Evidence Rule 1002 and 1003, this document is a copy is not
certified nor has it been identified or authenticated under «De_Jure_State_Title»
Evidence Rule 901 and further Counterclaimant has never seen this document nor has Counterclaimant ever been notified by the alleged Plaintiff, that such an alleged assignment or transfer was executed by «Creditor» nor has Counterclaimant ever knowingly agreed or consented to such a transfer or assignment. See also Judicial Notice section PRODUCTION OF EVIDENCE/ NOTES/ MORTGAGES herein and below
11. Counterclaimant objects and Motions the court to Strike Exhibit A of «Creditor»’s
complaint referred to as an ADJUSTABLE RATE NOTE WITH AN ALLEGED
ACCOUNT # «Account__from_Collector»for two (2) reasons. First, because the Plaintiff has failed to produce any legal evidence supporting the Plaintiff’s possession of any such original, genuine, and authentic documentation nor has the Plaintiff produced any legal
evidence as being certified, authenticated, or identified under «De_Jure_State_Title»
Evidence Rule 901. Nor has the Plaintiff supplied the alleged original document
authorized, under «De_Jure_State_Title» Evidence Rule 1003 or the NATIONAL
BANK & CURRENCY ACT OF JUNE 3, 1864 at 13 STAT. 99 Chp. 106 sections 8, 27,
28, 35, 37, & 39. Second, because of the harsh, oppressive and completely one-sided alleged contract presented by the Plaintiff, the common law rules of contract interpretation clearly applies and a contract of such is required by law for any complete, valid and conscionable contract. It is further required by law that it be proven by facts or competent witnesses only, that the alleged contract was validly formed and completely understood. See also Judicial Notice section CASES REGARDING AGREEMENTS and PRODUCTION OF EVIDENCE/ NOTES/ MORTGAGES herein and below.
12. Counterclaimant further objects that there is no commitment for an owner’s policy of
title insurance under local RULE 38.
13. Counterclaimant further objects and Motions the Court to Strike or Suppress counsels
statements that “Said assignment, a copy of which has been attached hereto, was
executed on … ” This is objected to on the grounds that it is hearsay under
«De_Jure_State_Title» Evidence Rule 802 Hearsay Rule. Counsel does not have first
hand knowledge nor has he been qualified as an expert witness. See Counter defendants complaint.
14. Counterclaimant further objects to any statements by counsel that «Creditor» loaned Counterclaimant money on the grounds that it calls for a conclusion of law, is hearsay and that counsel is testifying as a witness for his client and assuming & asserting the status of the client «Creditor» and as a direct result thereof counsel is placing himself in the position of a witness, thus compromising his role as an advocate. See also Judicial Notice section HEARSAY or CONFRONTAION CLAUSE herein and below:
15. That Counter defendants «Creditor» was formed pursuant to the provisions of the
NAT ION A L C URR ENCY AC T later c all ed “NA T IONA L BAN K AC T” and codified
into Title 12 section 38. That counsel is admitting on the court record that its CLIENTS’
loan activities are in direct violation of its own charter and section 8 of the NATIONAL
CURRENCY or BANK ACT of June 3, 1864 Chapter CVI, 13 Statutes 99, as amended and particularly section 27 of said act which states in part:
“And be it further enacted, That it shall be unlawful for any officer acting under the
provisions of this act to countersign or deliver to any association, or to any other
company or person, any circulating notes contemplated by this act, except as hereinbefore provided, and in accordance with the true intent and meaning of this act. And any officer who shall violate the provisions of this section shall be deemed guilty of a high misdemeanor, and on conviction thereof shall be punished by fine not to exceeding
double the amount so countersigned and delivered, and imprisonment not less than one year and not exceeding fifteen years, at the discretion of the court in which he shall be tried.”
purchase, hold, and convey real estate as follows:
Fourth. Such as it shall purchase at sales under judgments, decrees, or mortgages held by such association, or shall purchase to secure debts due to said association.
“Such associations shall not purchase or hold real estate in any other case or for any other purpose than as specified in this section. Nor shall it hold possession of any real estate under mortgage, or hold title and possession of any real estate purchased to secure any debts due it for a longer period than five years.”
SEC. 35 “And be it further enacted, That no association shall make any loan of discount on the security of the shares of its own capital stock, nor be the purchaser or holder of any such shares, unless such shares shall be necessary to prevent loss upon a debt previously contracted in good faith; and stock so purchased or acquired shall, within six months from the time of its purchase, be sold or disposed of at public or private sale, in default of which a receiver may be appointed to close up the business of the association, according to the provisions of this act.”
SEC. 37 And be further enacted, That no association shall, either directly or indirectly, pledge or hypothecate any of its notes of circulation, for the purpose of procuring money to be paid in or on its capital stock, or to be used in its banking operations, or otherwise; nor shall any association use its circulating notes, or any part thereof, in any manner or form, to create or increase its capital stock.”
Sec. 39 And be it further enacted, That no association shall at any time pay out on loans or discounts, or in purchasing drafts or bills of exchange, or in payment of deposits, or in any other mode pay out or put in circulation the notes of any bank or banking association
which shall not, at any such time, be receivable, at par, on deposit and in payment of debts by the association so paying out or circulating such notes; nor shall it knowingly
pay out or put in circulation any notes issued by any bank or banking association which at the time of such paying out or putting in circulation is not redeeming its circulating notes in lawful money of the United States.”
16. That this Honorable Court makes the following findings of fact and conclusions of law:
a.) That Counter defendants have not rebutted any of Counterclaimants presumptions and they are irrefutable or conclusive presumption as of this date.
b.) That Counter defendants have failed to show any legal evidence or provide any competent witnesses on the court record of any lawful promissory note existing and therefore any debt due Counter defendant.
c.) That Counter defendants have failed to provide any legal evidence on the court record that a contract, purchase agreement, or bill of sale exists.
d.) That Counter defendants have failed to provide any legal evidence on the court record that shows «Creditor» has a lawful lien, secured interest, attachment, entitlement, enforceability, priority, holder status, or possession.
e.) That all of Counter defendant’s alleged legal evidence is unauthenticated, unidentified, unverified and unauthorized documents or offers any competent witnesses to testify to the allegations. Counter defendants complaint is therefore also unverified.
f.) That all of Counter defendants statements and complaint are hearsay and fail to state a colorable claim and Counter defendants have failed to give color to their pleadings.
court can grant relief under «De_Jure_State_Title» Rules of Court 12 (B) (6) and there is a lack of jurisdiction therefore over the Subject Matter.
g.) Counterclaimant invokes the clean-hands doctrine and states that based on the evidence, pleadings and court record, Counter defendants have violated the equitable principle of good faith and are precluded from taking anything in equity.
h.) That therefore there are no triable issues of law and fact in the court record.
That Counterclaimant be granted the relief prayed for in his Counterclaim, any and all clouds on property by Counter defendant be removed, and counterclaimant be awarded punitive and actual damages and the Counterdefendants complaint be dismissed with prejudice and the court grant such other equitable relief as it deems just.
Dated «Todays_Date»
«True_Name», Counterclaimant
Verification: That I «True_Name» is the Counterclaimant in the above captioned motion in response to Plaintiff’s Complaint. That I have read the above captioned motion in response, the statements, laws, statutes, and applicable codes and swear, being willing to testify to the facts and being competent to testify, they are true and correct to the best of my knowledge and belief.
Dated «Todays_Date»
Notary Public
My Commission Expires on
STATE OF «STATE_NAME»
IN THE DISTRICT COURT FOR THE «Court_District_»TH JUDICIAL DISTRICT
Case No.: «Court_Case_Number»
«Creditor», Counter defendant v. «True_Name», Counterclaimant
DECLARATION OF SERVICE
I, the undersigned, «Witness_Name», hereby declare that I am and was at the time of service of the papers herein referred to over the age of 18 and not a party to this action. My postal location is c/o , , [ ].
On , I served a true and accurate copy of the following papers:
COUNTERCLAIM AND RESPONSE TO COMPLAINT/JUDICIAL NOTICE
in a sealed envelope, deposited in the U.S. Mail, with 1st-class postage fully paid and addressed as follows:
«M_1st_Collector_Name», Attorney for Plaintiff
«M_1st_Collector_Address»
«M_1st_Collector_City_State_Zip»
I, the undersigned, «Witness_Name», hereby declare under the penalties of perjury under the laws of the state of «De_Jure_State_Title» that the foregoing is true and correct.
///
Dated:
Signed
«Witness_Name»


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