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What a court really hears when you say Pre Se


BTO429
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I have been talking to a friend of the family for the last few months, he is retired from the bench after 36 years. The man is 89 years old, and has told me quite a bit about how the court looks at things. He is also a free mason, very high degree. One thing that he has explained to me is this, the courts have two interpretations of every issue. They let it be taught in one way, which is the way the average person learns about the law, and they have their own set of rules. The courts want us to know what we know but not what the judges know. First lets examine Pro Se

 

We all know that we have a Constitutional right to  represent our selves. No The term Pro Se as we are taught means the right to represent one self before a court, but this is only half the definition. The rest of the definition is " and of a party that is ready to PROCEED. When you state that you are Pro Se the court does not hear that you are representing yourself they hear the important part "that you are ready to proceed." That is why so many people have problems when going to court, they do not understand that the court considers them ready to proceed. When you declare that you are Pro Se the court normally asks you this question, are you ready to proceed pro se? Notice the word proceed in the sentence, we do not pay much attention to it because of what we are taught, we are taught that it means we can represent our selves, but as I said the courts look at it as you are ready to proceed.

 

Why would I bring this issue up. It is because a court cannot PROCEED if you challenge their jurisdiction over you. There are two types of jurisdiction over a person, personam and subject matter. A court needs to have both in order to have jurisdiction over a person. Although if you agree by saying you are ready to proceed you give them jurisdiction. This is not good, especially in courts such as traffic, child support, family, and any criminal court. In criminal court, traffic court, and city courts over city ordinances and statutes they will always ask you one question at the outset of the case, "how do you wish to PLEAD" the moment you enter a plea you give them jurisdiction.

 

Civil court is a bit different, they will normally ask both parties if they are ready to proceed, this is where you need to state to the court that you are ready to proceed until the court answers a few questions. This will stop the proceedings, until the judge hears what you need to ask.

 

The use of the wrong term can sabotage you right of the bat, as far as jurisdiction goes. Balcks Law dictionary defines Pro Se as appearing for ones self, in his own behalf and with out an attorney. This means your are appearing in person acting as your own attorney and thereby granting the court jurisdiction over you.

 

In Propria Persona is a better plea to use, it means in ones own proper person. It means that eveery thing you say to the court will be said in one proper person and not through an attorney. Why? Because the moment an attorney makes an appearance with or for you you automatically give the court jurisdiction because an attorney is an officer of the court.

 

Why is this important, is probably the next question. It is because before a court can proceed with any action against you be it civil or criminal the court has to establish jurisdiction this is the black letter of the law. "The law requires proof of jurisdiction to appear on the record of the administrative agency and all administrative proceedings." Hagans v. Lavine, 415 U.S. 533

Once challenged, jurisdiction can no longer be assumed by the court, it must be proven. It is the black letter of the law that if a court proceeds without establishing jurisdiction on the record any ruling is null and void.

 

Courts will always tell you that they have jurisdiction just for the simple fact that you showed up...but this is not true it is just assumed by the court. But we all know what happens if we do not show up...we loose. You are compelled to appear due to duress, menace, and coercion. You have no choice because you will either have a default judgement or a bench warrant for your arrest. So you need to state that your are appearing in propria persona and you have some questions before the court proceeds.

 

 

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Makes me wonder if I should use pro se when filing an action as plaintiff and propria persona when defending as a defendant.

 

Between our incorrect assumptions and the court's presumptions it is amazing that a self represented party ever wins in court.

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Propria Persona is where the term "Pro per" was derived from.

 

Disputing personam jurisdiction is a lost cause but there is also subject matter jurisdiction which should always be challenged in a suit brought on by a junk debt buyer and never be left for the court to assume.  A court must clearly have jurisdiction of both personam and subject matter in order to hear a case.  If a JDB files suit and claims to own the debt with no proof attached to their original petition then the court may not have subject matter jurisdiction to try the case.  A large percentage of JDB suits are filed with nothing attached with the assumption that they will be awarded a default judgment anyway so why bother.

 

Always file a Plea to the Jurisdiction with your original answer if your state's rules allows it.  At best the judge will agree especially if the JDB did not include a bill of sale or something other than, "We purchased the debt" and toss out the case.  At the least it will give the the JDB's attorney one hell of a first impression that you may be as legal savvy as he is.
 

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...

Always file a Plea to the Jurisdiction with your original answer if your state's rules allows it.  At best the judge will agree especially if the JDB did not include a bill of sale or something other than, "We purchased the debt" and toss out the case.  At the least it will give the the JDB's attorney one hell of a first impression that you may be as legal savvy as he is.

Thanks. I'll remember that if I ever get sued by a JDB.

 

Hopefully others here are routinely slamming the litigious JDBs on that "little" deadly issue whenever and wherever possible. :-)

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Black Law 6th edith states that the difference between pro per and pro se is procedural in nature. Pro per is  a positional form used to secure the courts lack of jurisdiction. in other words you take the position that you do not concede to the courts jurisdiction without evidence that the court does indeed have jurisdiction.

pro per and pro se also have other meanings:

Pro per: A natural person

Pro Se: A corporation

Pro se  means one who is appearing in person and without the aide of an attorney, this grants the court its jurisdiction.

 

Here is something I have not seen mentioned in this forum,,,,what does attorney mean,,,,it is derived from the French word "atorne" which means "to turn" so with attorneys being officers of the court when you go into court with an attorney the attorney is "turning you over to the court" automatic jurisdiction for the court. This is exactly why courts prefer you to have an attorney, it makes their job easier.

 

Another interesting fact, in order to gain subject matter over you, you have to give up personal jurisdiction over you. Do not argue them in the wrong order.

 

But let face it, you ccan come up with all the arguments you want over jurisdiction and you will loose, these judges have heard it for so many years that they are wise to it and know how to trump the argument. The best way to deal with them is the LAW as it is written, and case law. Use there own words to your favor. You can argue the Strawman exists, you are not a corporate entity, you are a sovereign person, a freeman on the land or what ever, they have their jurisdiction so why waste all the time, less it be a traffic court. 

 

Lets face it, its all a game. Where are games played on a court, what is it called? COURT because it a game of words and legal definitions. We all know the rules when we play basketball on a COURT, so learn the rule of trial procedure and when a foul is committed call them on it by saying OBJECTION, but know why you are objecting.

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Another thing to remember, when you start challenging the court on its jurisdiction the judge will tell you that you could be in contempt of court, here is your answer to that threat, "your honor it is not my wish nor my intent to be in contempt of this court, but the constitution specifically states and case law backs it up, that a question of constitutional rights cannot be turned into a crime and punishment be handed down by the court for it...

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THank you for this information.  If you've been in the process, bantering, by letter, back and forth with the Plaintiff and have submitted some documents to the plaintiff and the court "pro se", but have not yet gone to trial, can you then start submitting as "pro per"?  I have had one pre-trial conference, and am scheduled to appear at a pre-trial hearing in two weeks.  Can I now use pro per instead of pro se?

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The JDB filed suit and claims to own the debt with no proof attached to their original petition.  They did include in their disclosures an incomplete BOS several weeks later.  They are now demanding bank records, but have provided no proof of standing.  Will there be a difference for me in filing pro per as opposed to pro se?  I don't think I'm quite understanding the issue here.

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Y'all are barking up the wrong tree.  In lieu of asking questions dig up case law to show the court that if the plaintiff doesn't have a case then the court lacks jurisdiction to try it.

 

Here is an example of a very well written Plea to the Jurisdiction-

http://www.libertyinstitute.net/protectingpatriots/Defendant%20KSP%27s%20Answer%20and%20Counterclaim.pdf

(Scroll down to Part III on pg. 5)

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"So you need to state that your are appearing in propria persona and you have some questions before the court proceeds".

 

What would be the suggested questions to now ask the Judge to avoid being in contempt of Court?

Your honor it is not my intent nor is it my wish to be in contempt of this court, but it is well established law that if a person makes a challenge over a constitutional right the court cannot punish that person.

There can be no sanction or penalty imposed upon one because of the exercise of a constitutional right. Boyd v U.S. 116 U.S. 616 (1886) Leading case. Jurisdiction is a constitutional right. Some will argue that you cannot bring up constitutional issues in a civil court, but you can, just not all of them. Like I said jurisdiction is a right and how can you question theirjurisdiction without involving the constitution?

Sherar v Cullen 481 F. 945 (9th Cir 1973) Spevak v Klein, 385 U.S. 511 (1967) Garrity v New Jersey 385 U.S. 493 (1967) Malloy v Hogan 378 U.S. 1 (1964)

 

Your honor all I am doing is trying to establish legal intent, I am not asking for legal advice. Legal intent means that i need to be informed by this court whether this will be a civil action or an action under a Court Admiralty, because the rules under each are very different from one anther, and I need to know under which jurisdiction the court intends to proceed with this case. If this is truly a civil action the common law would prevail but if this will be heard under a Court of Admiralty then other laws prevail. In order for me to intelligently defend myself I need to know which rules will apply.

 

Here is another way, right off the bat when the Judge tells you it is your turn to talk, you state "your Honor I am here today in propria persona (pro per), under a special appearance as opposed to a general appearance and for jurisdictional challenges.

 

Contract 101 under common law,,,,,the court must interpret the case in the light most favorable to the non preparing party.   YOU

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Y'all are barking up the wrong tree.  In lieu of asking questions dig up case law to show the court that if the plaintiff doesn't have a case then the court lacks jurisdiction to try it.

 

Here is an example of a very well written Plea to the Jurisdiction-

http://www.libertyinstitute.net/protectingpatriots/Defendant%20KSP%27s%20Answer%20and%20Counterclaim.pdf

(Scroll down to Part III on pg. 5)

How far back do you want me to go with case law?

In order for a court to have personal jurisdiction over a person it must have a statutory basis for its power, and the exercise of its power must comply with due process. 14th amendment for states and 5th for federal.

So jurisdiction is a constitutional issue.  Even in civil court, and yes traffic court. But I don not think traffic court is discussed on this forum.

 

The Supremacy Clause: Article 6 paragraph 2 The Constitution is the supreme law of the land

 

How about 1803 and this has held and never been over turned.  This case sets precedent for any ting you can argue under the constitution and common law.

Marbury v Madison: 5 U.S. 137; Anything that is conflict with the constitution is null and void of law.

"No provision of the Constitution is designed to be without effect," "Anything that is in conflict is null and void of law", "Clearly, for a secondary law to come in conflict with the supreme Law was illogical, for certainly, the supreme Law would prevail over all other laws and certainly our forefathers had intended that the supreme Law would be the bases of all law and for any law to come in conflict would be null and void of law, it would bare no power to enforce, in would bare no obligation to obey, it would purport to settle as if it had never existed, for unconstitutionality would date from the enactment of such a law, not from the date so branded in an open court of law, no courts are bound to uphold it, and no Citizens are bound to obey it. It operates as a near nullity or a fiction of law."

 

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.

 

It remains to be enquired whether,

Is he entitled to the remedy for which he applies. This depends on -- 1st. The nature of the writ applied for, and,

2dly. The power of the court.

It has been insisted, at the bar, that as the original grant of jurisdiction, to the supreme and inferior courts, is general,(this means common law)

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that the courts must close their eyes on the constitution, and see only the law.

The constitution declares that "no bill of attainder or ex post facto law shall be passed." If, however, such a bill should be passed, and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve?

Some of you may ask or wonder what is a bill of attainder? A traffic ticket for one. A bill of attainder is an act of legislature that declares a person or a group of persons, guilty of some crime and punishing them with out privilege of a judicial trial.

From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

 

 

Cowen v Virginia: Wheat reporter vol6 page 2, 1821.,The federalist papers is the exact record of the intent of the framers of the constitution.

 

Respondent invokes the principle that jurisdiction is to be tested by the value of the object or right to be protected against interference. Hunt v. New York Cotton Exchange, 205 U. S. 322;

 

McNutt v General Motors Acceptance Corp 298; U.S. 178 (1936)

It is incumbent upon the plaintiff properly to allege the jurisdictional facts, according to the nature of the case.

"Where the law gives no rule, the demand of the plaintiff must furnish one; but where the law gives the rule, the legal cause of action, and not the plaintiff's demand, must be regarded."

By the Conformity Act of 1872 (17 Stat. 197; R.S. § 914; 28 U.S.C. § 724), all defenses in civil actions at law were made available to a defendant in the federal courts under any form of plea, answer, or demurrer which would have been open to him under like pleading in the courts of the state within which the federal court was held. In that view, we decided that, where, under the Nebraska Code of Civil Procedure, the answer took the place of all pleas at common law, in abatement or to the merits, the allegation of the citizenship of the parties, which was properly made in the petition and put in issue by the answer, must be proved by the plaintiff. And where the record showed "no proof or finding upon this essential point," the judgment was reversed for want of jurisdiction, citing from Roberts v Lewis 144 U.S. 653, 656-658

The Act of 1875, in placing upon the trial court the duty of enforcing the statutory limitations as to jurisdiction by dismissing or remanding the cause at any time when the lack of jurisdiction appears, applies to both actions at law and suits in equity. The trial court is not bound by the pleadings of the parties, but may, of its own motion, if led to believe that its jurisdiction is not properly invoked, "inquire into the facts as they really exist."

"When such a question rises in an action at law, its decision would usually depend upon matters of fact, and also usually involves a denial of formal, but necessary, allegations contained in the plaintiff's declaration or complaint. Such a case would be presented when the plaintiff's allegation that the controversy was between citizens of different states, or when, as in the present case, the allegation that the matter in dispute was of sufficient value to give the court jurisdiction, was denied. In such cases, whether the question was raised by the defendant or by the court on its own motion, the court might doubtless order the issue to be tried by the jury."

The Act of 1875 prescribes a uniform rule, and there should be a consistent practice in dealing with jurisdictional questions. We think that the terms and implications of the Act leave no sufficient ground for varying rules as to the burden of proof. The prerequisites to the exercise of jurisdiction are specifically defined, and the plain import of the statute is that the District Court is vested with authority to inquire at any time whether these conditions have been met. They are conditions which must be met by the party who seeks the exercise of jurisdiction in his favor. He must allege in his pleading the facts essential to show jurisdiction. If he fails to make the necessary allegations, he has no standing. If he does make them, an inquiry into the existence of jurisdiction is obviously for the purpose of determining whether the facts support his allegations. In the nature of things, the authorized inquiry is primarily directed to the one who claims that the power of the court should be exerted in his behalf. As he is seeking relief subject to this supervision, it follows that he must carry throughout the litigation the burden of showing that he is properly in court. The authority which the statute vests in the court to enforce the limitations of its jurisdiction precludes the idea that jurisdiction may be maintained by mere averment, or that the party asserting jurisdiction may be relieved of his burden by any formal procedure. If his allegations of jurisdictional facts are challenged by his adversary in any appropriate manner, he must support them by competent proof. And, where they are not so challenged, the court may still insist that the jurisdictional facts be established, or the case be dismissed, and, for that purpose, the court may demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence. We think that only in this way may the practice of the District Courts be harmonized with the true intent of the statute which clothes them with adequate authority and imposes upon them a correlative duty.  (Justia.com)

Please read thoroughly the McNutt case it still stands, and gives you a lot of ammo for jurisdiction case law.

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Disputing personam jurisdiction is a lost cause but there is also subject matter jurisdiction which should always be challenged in a suit brought on by a junk debt buyer and never be left for the court to assume.  A court must clearly have jurisdiction of both personam and subject matter in order to hear a case.  If a JDB files suit and claims to own the debt with no proof attached to their original petition then the court may not have subject matter jurisdiction to try the case.  A large percentage of JDB suits are filed with nothing attached with the assumption that they will be awarded a default judgment anyway so why bother.

 

Not all courts require a copy of the account, an affidavit, or any other type of proof to be attached to the complaint.  You also have incorporation by reference.

 

i'm not understanding the emphasis being placed here.   If a debt collection case has been filed in your county court, the court has personal jurisdiction over you.   If the case filed is one that would be heard by the court, there's your subject matter jurisdiction.

 

A court has subject matter jurisdiction if "the case is one of the type of cases that the court has been empowered to entertain by the sovereign from which the court derives its authority." Horton v. Suthers, 43 P.3d 611, 615 (Colo.2002).

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What I am trying to get across is do not do anything to give them personal jurisdiction the other side has to prove that. Some of those jdb atty's do not know how.

 

Establish the type of jurisdiction the court will be operating under.

Your honor before the case goes any further i have some questions that need to be answered.

1) Will this be a civil case under common law or will this case be heard under a court of Admiralty law. The reason I need to know this is the rules of procedure are very different between the two. What the judge will not and cannot tell you is that the court is operating under Admiralty jurisdiction. most court in the U.S. are courts of Admiralty. You are trying to get the judge to admit they are under admiralty but if the judge says they are under common law then you restate it,"let the record then show that this court and this case will be heard under the rules of the common law. May I also remind the court that common law is also constitutional law and I am the intended and expressed beneficiary of that contract. Now that you have them under common law do not let them stray into the U.C.C. laws this is the law of the Admiralty courts.

This helps because then you state your honor may I remind the court that under common law the court has to interpret the law in the light most favorable to the party that did not create the contract. But if he does admit the court is operating under Admiralty jurisdiction(fat chance) then you simply state Your honor I am not aware that I am under any international contracts, if the Plaintiff has an international contract I would ask him  to present it to the court and ask for it to be entered into evidence. Now you put the Plaintiff on the spot to produce the binding contract. A court of admiralty has no jurisdiction over you until they prove they have a contract where you entered into it.

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the court have a standing philosophy and it goes some thing like this

 

If I violate your rights, you may or may not know about it, if you know about it, you may or may not be able to do something about it, if you do have an ability to do something about it, you may not have the financial means to go to a finished program, if you do have the financial means you may or may not have the intestinal fortitude to go to a finished program.

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