California: Homeowner in Foreclosure Earns a Huge Victory in Unlawful Detainer !

Homeowner in Foreclosure Earns a Huge Victory in Unlawful Detainer !

By Maher Soliman
Expert Witness, Whole Loan Examiner and Consultant to Counsel

February 5, 2009. Sacramento California – A California Courts ruling is for a judgment in the “holdover” matter allowing the foreclosure “sale” by trustee to be set aside in favor of a modification.

Lenders who originate and service loans know California offers a “safe haven” from homeowners disputes in a foreclosure. That means overwhelming odds for anyone in foreclosure who 1) loses their home in a foreclosure and 2) must respond to an unlawful detainer after their home is lost. That was not the case for an El Dorado area resident at a recent hearing for an unlawful detainer matter heard in a Placerville County superior court room.

The win in court is in the unlawful detainer matter and case number PCU20080326 and parties – AURORA LOAN SERVICES v. STELLA D. ONYEU.

The case was originally filed in October of last year and shortly thereafter was dismissed when the Plaintiff failed to show at a scheduled hearing. Subsequent motions were filed to vacate the dismissal in favor of a motion to dismiss by the plaintiffs. The matter was heard recently heard again by the same court and earlier mentioned presiding judge. Mark Terbeek is the attorney for the Defendant and Maher Soliman a Juris Pro witness provided case development and court expert testimony.

This judgment ruling for the defendant is monumental given the courts limited jurisdiction related to the lenders sole focus to have the borrower removed from the home. The issues at hand are the legal procedural limitations and high attrition rate for defendants and their attorney’s. The problem is the defendant’s lack of standing for pleading a wrongful foreclosure due to jurisdiction of the court.

So what does this all mean? Many homeowners can find some hope, for the moment, in knowing the otherwise unfriendly California UD courts will now hold some promise for hearing arguments as to the foreclosure and the plaintiffs standing.

According to foreclosure and REO sales analyst Brenda Michelson of Nationwide Loan Services “It’s hit or miss at this level of the law and the courts willingness to step outside of its jurisdiction.” The smaller outlying courts seem to me to be more willing to entertain defense arguments that the plaintiff may not be the holder in due course and lacks capacity throughout the foreclosure” Terbeek’s response is that if the plaintiff cannot demonstrate a logical and properly conveyed transfer of the beneficial interest – it is not entitled to possession.

After the foreclosure and conveyance back to the trustee, the homeowner is considered unlawfully occupying the dwelling as a holdover. However, the court ruled that AURORA had in fact violated its duty to show good faith and comply accordingly under the recent California statutes and amendments Power of Sale provision. AURORA LOAN SERVICES like so many other lender servicing agents has come under greater scrutiny as of late for questionable business practices. According to its web site Aurora Loan Services is operating as usual. The company is a subsidiary of Lehman Brothers Bank, and not part of the Lehman Brothers Holding Inc. bankruptcy filing. Servicing agents are on notice they must be ready to defend themselves when the opportunity to argue the plaintiffs standing are allowed in an unlawful detainer motivate by a foreclosure.

The presiding judge who heard the matter ordered a judgment against the company allowed for Terbeek to enter a request for all legal fees due.

According to legal expert Soliman, “there are so many attorneys willing to fight the court on the jurisdiction issue. However, it is nearly impossible to rely on the judge and courts at this level”. Soliman is an examiner with Nationwide Loan Services and has engagements in multiple cases throughout California through attorneys such as Terbeek who represented the defendant.

Jurisdiction: An Overview

The term jurisdiction is really synonymous with the word “power” and the sovereignty on behalf of which it functions.. Any court possesses jurisdiction over matters only to the extent granted to it by the Constitution, or legislation of A paramount fundamental question for lawyers is whether a given court has jurisdiction to preside over a given case. A jurisdictional question may be broken down into various components including whether there is jurisdiction over the person (in personam), the subject matter, or res (in rem), and to render the particular judgment sought.

An unlawful detainer lawsuit is a “summary” court procedure. This means that the court action moves forward very quickly, and that the time given the tenant to respond during the lawsuit is very short. For example, in most cases, the tenant has only five days to file a written response to the lawsuit after being served with a copy of the landlord’s complaint. Normally, a judge will hear and decide the case within 20 days after the borrower now tenant files an answer.

The question of whether a given court has the power to determine a jurisdictional question is itself a jurisdictional question. Such a legal question is referred to as “jurisdiction to determine jurisdiction.” In order to evict the tenant, the landlord must file an unlawful detainer lawsuit in superior court. In an eviction lawsuit, the lender is the “plaintiff” and the prior borrower and homeowners become an occupant holdover and the “defendant.” Immediately after the trustee sale of the home the conveyance by the trustee is entered in favor of the lender. Until recently in most cases the lender is with in its right foreclose if a borrower has missed a number of payments, failed to make the insurance premiums or not paid the property taxes. “But sometimes a lender is wrong and you can fight foreclosure by challenging the foreclosure process and related documents” said Soliman.

As the new owner of record Duetsche Bank must follow procedures no different than that of a landlord in a tenant occupancy dispute. Therein, the next step is to remove the homeowner from the subject dwelling. If the tenant doesn’t voluntarily move out after the landlord has properly given the required notice to the tenant, the landlord can evict the tenant. If the lender makes a mistake in its filing of the foreclosure documents a court my throw out the whole foreclosure case. In the case of a wrongful foreclosure the borrower’s claims are limited to affirmative defenses.

AFFIRMATIVE DEFENSES

Unlike a judicial proceeding, California lenders need to merely wait out the mandatory term for issuing default notices and ensure it has properly served those notices to the borrower. In other words the hearing and trial taken place in the above referenced matter is not subject to arguments brought by the homeowner for wrongful foreclosure versus the question as to lawful possession of the property by the lender.

California lenders are typically limited to only the defenses a landlord will face when opposed and made subject to claims of wrongfully trying to evict a tenant. Claims such as the Plaintiff has breached the warranty to provide habitable premises, plaintiff did not give proper credit before the notice to pay or quit expired or plaintiff waived, changed, or canceled the notice to quit, or filed the complaint to retaliate against defendant are often completely unrelated to the matter at hand. The courts decision to enforce the provisions of an earlier modification in lieu of a foreclosure sends a major wake up call to the lenders who are under siege to avoid foreclose and be done with mortgage mess affecting United States homeowners. Soliman says the decision is unfortunately not likely to be read into as case precedent for future lawyers and wrongful defendants seeking to introduce our case as an example of a lenders wrongful action.

Therefore, the debate about what the courts can and cannot hear will remain open and subject to further scrutiny by the lawyers for both sides and judges who preside over the courts at this level.

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18 Responses

  1. I need assistance. HOA foreclosed on property in CA. Tried to jointly short sell property with HOA. HOA put my name on sale documents because HOA would not qualify for a short sale – too much $$. HOA was hoping sale agreement would slide bye the Bank and go unnoticed. When I discovered this was all illegal I would not sign the second attempt at a short sale agreement. Then the HOA filed an Unlawful Detailer. I was forced to file BK 7 to stop foreclosure. I have a UD trial set for 12/7. Help !!! Need affirmative defense. Could be fraud. What statue? Re: fraud in sale of real estate.

  2. We offered DBNTC/OCWEN 168,000 which they rejected and moved forward with the eviction and they just sold it for 162,199 after telling us they would only accept 350,000

  3. Now we are in line for an In re:VEAL part 2. Our case lines up almost exactly.

  4. A Big Win for me in AZ !!! Unlawful detainer dismissed!!! Our defense was, no legal standing, followed with numerous attempts by the Judge to tell me I could not bring up title issues in an UD. Our next step requested the judges financials as required by law to be posted, (they were not) and asking if he had any financial interest in our case.We also stated that we were never renters as most UD’s assume. We went about our defese backwards building a case for our LAWSUIT! We never thought we would win. Now we are in a limbo. Waiting for a quiet title from the DARK SIDE, or a settlement!!!

  5. that ought to get things rolling hard for all humanity for a month or 2 listen to robb and u wont be steared wrong. Its truth and its the law.

  6. the rest is research from a brother who is also a Majus and has audio and video experience to share, I just ran across him on my inquest of office.

    RobbRyder here: Jan 29th 2012
    Courtofrecord@aol.com

    You can find my other research at:

    http://robcourtofrecord.wordpress.com

    When you become Landlord.. and only then
    please send a short story and your “proof” to Kitty
    at the following address please put in the subject line
    Landlord: County of: State of:

    http://rydersreformers.wordpress.com/

    If you can help keep the lights on: ashleyrytlewski@gmail.com (paypal)
    and thank you in advance

    Some great things have been happening.. pushed forward by good people simply asking questions of their elected officers. These officers have a fiduciary duty to you..the King, when you accept their oath, bind them to it, and remind them they have a fiduciary duty to you one of gods people.

    Oaths are written as common law deeds, and as the grantee you have to acknowledge and accept it for it to be binding between them and you…

    Then, give them a lawfull order… , and let them know if they do not follow your lawfull order, you will have them before the “court of Inquiry” .. (part of the Probate court in Michigan).. more on that later..

    The question is.. what questions to ask, after accepting the oaths of these officers..

    For that, I rely on Lord Coke, Lord Blackstone, books of authority used as evidence in your case, is the law.. They tell how the system is set up, and where to find the Remedy.

    They will tell you how to succeed in every suit, if you go as the sovereign, one of the King of kings,… kings.. or queens.

    Turns out from my interpretation, its just misdirection being used, because as Lord Coke says.. point out their error first, ..to see their last.. (something along those lines.. in book 4 Court of Request.

    This will be a series of videos, .. using my study notes meant to show the overall picture, not the exact answer.. that will come from asking questions of those that know the answer.

    It will take as many videos as it takes.. first an outline,… later in details as we learn more by doing… asking questions, on our public records (our acknowledged and attested , freewill act and deed) or man to man.

    I’ll be skipping between Lord Coke, and Blackstone

    Blackstones online version… http://ebooks.adelaide.edu.au/b/blackstone/william/comment/index.html

    Lord Coke downloadable books:
    Institutes of the Lawes of England
    In the external links here: http://en.wikipedia.org/wiki/Institutes_of_the_Lawes_of_England
    Last entry, mainly “8” , 4th book 1797 edition.

    Also handy…
    Bouviers’ 1856 Law Dictionary

    http://www.constitution.org/bouv/bouvier.htm

    Websters 1828

    http://www.webster1828.com/wordsbyletter.aspx?firstletter=L

    If you were directed to this video and are unfamiliar with the subject matter don’t be discouraged if your don’t get it right away, you have been conditioned to look the other way, and to think certain words mean a particular thing.

    If you don’t think any of this matters, or will not be acknowledged by “them”, then don’t worry about it, again its only my interpretation of some old dusty law books… you don’t have to agree, everyone has freewill. I’ve chosen to exercise mine in a particular manner, and down my own path. Trying to find:

    The Achilles Heal of Civil Law.

    Even the wooden boy Pinocchio knows that every contract has an escape clause..

    Magna Carta Ch 11 (interpreted by Coke in his book of authority)

    Chapter 11 Magna Carta (Cap 11, pg 47 of the pfd Coke Book 2)

    Common Pleas shall not follow our court, but shall be holden in some place certain.

    Before this statute, common pleas might have been holden in the kings bench, and all original writs returnable into the same bench: and because the was holden coram rege(before the king) , and followed the kings court, and removable at the kings will, the returns were ubicunque fuerimus, (wherever we have been) &c. whereupon many discontinuances ensued, and great trouble of jurors, charges of parties, and delay of justice, for there causes the statute was made.

    Communia placita ] Here it is understood, a division of pleas, for the placita (pleas) are divided in placiat coronae (pleas of the crown) , and communia placita (Common pleas): Placita coronae(pleas of the crown) are otherwise, and aptly called criminalia (a criminal), or mortalia (Mortal), and placita communia are aptly called civilia (Civil): Placita coronae are divided into high treason, misprision of treason, petite treason, felony, &c. and to their accessories, so called because they are contra coranam et dignitatem (against the dignity of the crown and) for these the court of common pleas cannot hold plea; because they be held by common persons.

    Mortal: 1. Subject to death; destined to die. Man is mortal.

    For a plea of the crown may be holden between common persons, as an appeale of murder, robbery, rape, felony, mayhem, &c. and the king may be party to a common plea, as to a quare impedit (therefore hinders the), and the like

    Now as our of the old fields must come the new corn, so our old book do excellently expound, and express this matter, as the law is holden as this day. Therefore Glanvill faith, Placitorum aliud est criminale, aliud civile;
    (It is one thing for criminal pleas, and another civil); where plaitum criminale (Criminal plea) , is the placitum coronae (right in the crown) ; and placitum civile ( right in the civil) placitum commune (right in the common) , named in this statute.

    Fleta saith, Habet et (rex) curiam suam et justiciarios suos residents qui recordum habent in hiss quae coram eis fuer’ placitata, et qui potestatem habent de omnibus placitis, et actionibus realibus, personalibus, et mixtis

    It also has (the king) his court and his justices, who sat down before them the record of which I shall have in these ‘placitata, and who have the power of all pleas, and actions real, personal, and mixed

    If any man be in custodial mareschalli of the kings bench, any other may have an action of debt, covenant, or the like personal action., by bill in the kings bench, because he that is custodial mareschalli ought to have the privilege of that court, and the act taketh not away the privilege of any court (man can answer in what court he desires) , because if he should be sued in any other court, he should not in respect of his privilege answer there, and so it is of any officers, or ministers or the that court: the like law is of the court of chancery and eschequer.

    custodial mareschalli (look in book 4: Court of Exchequer for more on this)

    Coke Book 4 CH 8 Court of Chancery (page 110 of pdf)

    Chancery the only court out of which original writs issue (remedial)
    (REMEDIAL. That which affords a remedy; as, a remedial statute, or one which is made to supply some defects or abridge some superfluities of the common law. 1 131. Com. 86. The term remedial statute is also applied to those acts which give a new remedy. Esp. Pen. Act. 1.)

    Statute” also sometimes means a kind of bond or obligation of record, being an abbreviation for “statute merchant” or “statute staple.” See infra. For mandatory and directory statutes see “Mandatory” and “Directory

    Pg 112 Jurisdiction of the court

    Chancery has 2 courts… one ordinary where the lord chancelour or lord keeper of the great seal proceeds according to the right line of the laws and statutes of the realm.

    Another… extraordinary… according to the rule of equity.

    Upon judgement given in this court a writ of error does lie returnable into the kings bench: the stile of the court of the kings bench is coram rege (before the king)

    This court is officina justitiae (works of righteousness) , out of which all originall writs and all commissions which pass under the great seal go forth, which great seal is clavis regni, (keys of the kingdom) and for those ends this court is ever open

    The officers and ministers of this court of common law doe principally attend and doe their service to the great seal, as the twelve masters of the chancery…

    Extraordinary jurisdiction (pg 115)

    …… there is no statute that gives the party grieved remedy in equity. .. Lastly the last words of the Act without elsewhere pursuing to have remedy, doe manifest that the meaning of the makers of the act is to direct the party to be relieved by the common law, by actions upon these states and not elsewhere.

    cannot make any order against the common law, nor that any judgment be given without due process of law

    No person should appear upon a writ De quibusdam certis de causis (certain about the causes of some) before the chancelor or any other of the councell. Where recovery is therefore given by the common law..

    …. As people was compelled to come before the kings councell, on in chancery, by writs grounded upon untrue suggestions, that the chancelor for the time being presently after that such suggertions be duly found and proved untrue, shall have power to ordain and award dammages according to his discretio to him which so travelled unduly as is aforesaid

    This act extendth to the chancellor proceeding in course of equity, and extendeth not to a demurrer in law upon a bill, …

    No man to be called by privy seal or subpoena to answer any matters but such as have a remedy by the common law, and that to appear so by the testimony of two justices of either bench, and the indenture between them and the plaintiff, which plaintiff shall always appear in proper person, and find surety by recognizance to prosecute with effect the matters of the bill only, and to answer damages in the same fall out against the plaintiff

    The court of equity proceeding by English Bill is no court of record, and therefore it can bind but the person only

    Commentaries on the Laws of England, by William Blackstone
    BOOK 3, CHAPTER 17
    OF INJURIES PROCEEDING FROM, OR AFFECTING, THE CROWN
    HAVING in the nine preceding chapters considered the injuries, or private wrongs, that may be offered by the command and authority of the king, signified by his original writs returnable in his several courts of justice, which thence derive a jurisdiction of examining and determining the complaint; I proceed now to inquire of the mode of redressing those injuries to which the crown itself is a party: which injuries are either where the crown is the aggressor, and which therefore cannot without a solecism admit of the same kind of remedy;1 or else is the sufferer, and which then are usually remedied by peculiar forms of process, appropriated to the royal prerogative. In treating therefore of these, we will consider first, the manner of redressing those wrongs or injuries which a subject may suffer from the crown, and then of redressing those which the crown may receive from a subject.
    THAT the king can do no wrong, is a necessary and fundamental principle of the English constitution: meaning only, as has formerly been observed,2 that, in the first place, whatever may be amiss in the conduct of public affairs is not chargeable personally on the king; nor is he, but his ministers, accountable for it to the people: and, secondly, that the prerogative of the crown extends not to do any injury; for, being created for the benefit of the people, it cannot be exerted to their prejudice.3
    Whenever therefore it happens, that, by misinformation or inadvertence, the crown has been induced to invade the private rights of any of its subject, though no action will lie against the sovereign,4 (for who shall command the king?5 ) yet the law has furnished the subject with a decent and respectful mode of removing that invasion, by informing the king of the true state of the matter in dispute: and, as it presumes that to know of an injury and to redress it are inseparable in the royal breast, it then issues as of course, in the king’s own name, his orders to his judges to do justice to the party aggrieved. (This is a plea of the crown: you)
    THE distance between the sovereign and his subjects is such, that it rarely can happen, that any personal injury can immediately and directly proceed from the prince to any private man (private man is inferior to ..man) : and, as it can so seldom happen, the law in decency supposes that it never will or can happen at all; because it feels itself incapable of furnishing any adequate remedy, without infringing the dignity and destroying the sovereignty of the royal person, by setting up some superior power with authority to call him to account.

    The inconvenience therefore of a mischief that is barely possible, is (as Mr. Locke has observed6 ) well recompensed by the peace of the public and security of the government, in the person of the chief magistrate being set out of the reach of coercion.
    But injuries to the rights of property can scarcely be committed by the crown without the intervention of its officers; for whom the law in matters of right entertains no respect or delicacy, but furnishes various methods of detecting the errors or misconduct of those agents, by whom the king has been deceived, and induced to do a temporary injustice.
    THE common law methods of obtaining possession or restitution from the crown, of either real or personal property, are, 1. By petition de droit , or petition of right, which is said to owe its original to king Edward the first.7 2. By monstrans de droit [showing of right], manifestation or plea of right: both of which may be preferred or prosecuted either in the chancery or exchequer.8

    The former is of use, where the king is in full possession of the hereditaments or chattels, and the party suggests such a right as controvert (To dispute) the title of the crown, grounded on facts disclosed in the petition itself; in which case he must be careful to state truly the whole title of the crown, otherwise the petition shall abate:9 and then, upon this answer being endorsed or underwritten by the king, soit droit fait al partie (let right be done to the party10 ) a commission shall issue to inquire of the truth of this suggestion:11 after the return of which, the king’s attorney is at liberty to plead in bar; and the merits shall be determined upon issue or demurrer, as in suits between subject and subject.
    HEREDITAMENTS, estates. Anything capable of being inherited, be it corporeal or incorporeal, real, personal, or mixed
    Thus, if a disseizor (One who puts another out of the possession of his lands wrongfully ) of lands, which are held of the crown, dies seized (having possession) without any heir, whereby the king is prima facie [on its face] entitled to the lands, and the possession is cast on him either by inquest of office, or by act of law without any office found; now the disseizee (One who is wrongfully put out of possession of his lands) shall have remedy be petition of right, suggesting the title of the crown, and his own superior right before the disseizin made.12

    But where the right of the party, as well as the right of the crown, appears upon record, there the party shall have monstrans de droit (showing of the law) , which is putting in a claim of right grounded on facts already acknowledged and established, and praying the judgment of the court, whether upon those facts the king or the subject has the right. As if, in the case before supposed, the whole special matter is found by an inquest of office, (as well the disseizin, as the dying without any heir) the party grieved shall have monstrans de droit at the common law.13 But as this seldom happens, and the remedy by petition was extremely tedious and expensive, that by monstrans was much enlarged and rendered almost universal by several statutes, particularly 36 Edw. III. c. 13. and 2 & 3 Edw. VI. c. 8. which also allow inquisitions of office to be traversed or denied, wherever the right of a subject is concerned, except in a very few cases.14
    These proceedings are had in the petty bag office in the court of chancery: and, if upon either of them the right be determined against the crown, the judgment is, quod manus domini regis amoveantur et possessio restituatur petenti, salvo jure domini regis [that the king's hand be removed, and possession restored to petitioner, saving the king's right];15 which last clause is always added to judgments against the king,16 to whom no laches [delay] is ever imputed, and whose right is never defeated by any limitation or length of time. And by such judgment the crown is instantly out of possession;17 so that there needs not the indecent interposition of his own officers to transfer the seizin from the king to the party aggrieved.
    THE methods of redressing such injuries as the crown may receive from a subject, are,
    BY such usual common law actions, as are consistent with the royal prerogative and dignity. As therefore the king, by reason of his legal ubiquity, cannot be disseized or dispossessed of any real property which is once vested in him, he can maintain no action which supposes a dispossession of the plaintiff; such as an assize or an ejectment:18 but the may bring a quare impedit [why impeded],19 which always supposes the complainant to be seized or possessed of the advowson: and he may prosecute this writ, as well as every other, as well in the king’s bench as the common pleas, or in whatever court he pleases. So too he may bring an action of trespass for taking away his goods; but not for breaking his close, or any other injury done upon his soil or possession.20

    It would be equally tedious and difficult, to run through every minute distinction that might be gleaned from our ancient books with regard to this matter; nor is it in any degree necessary, as much easier and more effectual remedies are usually obtained by such prerogative modes of process, as are peculiarly confined to the crown.

    SUCH is that of inquisition or inquest of office: which is an inquiry made by the king’s officer, his sheriff, coroner, or escheator, virtute officii [by virtue of office], or by writ to them sent for the purpose, or by commissioners specially appointed, concerning any matter that entitles the king to the possession of lands or testaments, goods or chattels.21 This is done by a jury of no determinate number; being either twelve, or less, or more. As, to inquire, whether the king’s tenant for life died seized,
    whereby the reversion accrues to the king:
    Whether A, who held immediately of the crown, died without heirs; in which case the lands belong to the king by escheat:
    whether B be attained of treason; whereby his estate is forfeited to the crown:
    whether C who has purchased lands be an alien; which is another cause of forfeiture:
    whether D be an idiot a nativitate [from birth]; and therefore, together with his lands, appertains to the custody of the king:
    and other questions of like import, concerning both the circumstances of the tenant, and the value or identity of the lands.
    These inquests of office were more frequently in practice than at present, during the continuance of the military tenures amongst us (we are under marshal law): when, upon the death of every one of the king’s tenants, an inquest of office was held, called an inquisitio post mortem [inquest after death], to inquire of what lands he died seized, who was his heir, and of what age, in order to entitle the king to his marriage, wardship, relief, primer-seizin , or other advantages, as the circumstances of the case might turn out, To superintend and regulate these inquiries the court of wards and liveries was instituted by statute 32 Hen. VIII. c. 46. which was abolished at the restoration of king Charles the second, together with the oppressive tenures upon which it was founded.

    WITH regard to other matters the inquests of office still remain in force, and are taken upon proper occasions; being extended not only to lands but also to goods and chattels personal, as in the case of wreck, treasure-trove, and the like; and especially as to forfeitures for offenses. For every jury which tries a man for treason or felony, every coroner’s inquest that sits upon a felo de se [suicide], or one killed by chancemedley [accident], is, not only with regard to chattels, but also as to real interests, in all respects an inquest of office: and if they find the treason or felony, or even the flight of the party accused (though innocent) the king is thereupon, by virtue of this office found, entitled to have his forfeitures; and also in the case of chancemedley, he or his grantees are entitled to such things, by way of deodand, as have moved to the death of the party.
    THESE inquests of office were devised by law, as an authentic means to give the king his right by solemn matter of record; without which he in general can neither take, nor part from, any thing.22 For it is a part of the liberties of England, and greatly for the safety of the subject, that the king may not enter upon or seize any mans’ possessions upon bare surmises without the intervention of a jury.23
    It is however particularly enacted by the statute 33 Hen. VIII. c. 20. that, in case of attainder for high treason, the king shall have the forfeiture instantly, without any inquisition of this sort before “office found” (the finding of an inquest of office), therefore by the statute 18 Hen. VI. c. 6. it was enacted, that all letters patent or grants of lands and tenements before office found, or returned into the exchequer, shall be void. And, by he bill of rights at the revolution, 1 W. & M. St. 2. c. 2. it is declared, that all grants and promises of fines and forfeitures of particular persons before conviction (which is here the inquest of office) are illegal and void; which indeed was the law of the land in the reign of Edward the third.24
    WITH regard to real property, if an office be found for the king, it puts him in immediate possession, without the trouble of a formal entry, provided a subject in the like case would have had a right to enter; and the king shall receive all the mesne or intermediate profits from the time that his title accrued.25 As on the other hand, by the articuli super cartas [articles upon the charters],26 if the king’s escheator or sheriff seize lands into the king’s hand without cause, upon taking them out of the kings hand again, the party shall have the mesne profits restored to him

    IN order to avoid the possession of the crown, acquired by the finding of such office, the subject may not only have his petition of right, which discloses new facts not found by the office, and his monstrans de droit , which relies on the facts as found; but also he may (for the most part) traverse or deny the matter of fact itself, and put it in a course of trial by the common law process of the court of chancery: yet still, in some special cases, he has no remedy left but a mere petition of right.27 These traverses, as well as the monstrans de droit , were greatly enlarged and regulated for the benefit of the subject, by the statutes before-mentioned, and others.28 And in the traverses thus given by statute, which came in the place of the old petition of right, the party traversing is considered as the plaintiff;29 and must therefore make out his own title, as well as impeach that of the crown, and then shall have judgment quod manus domini regis amoveantur, etc .
    WHERE the crown has unadvisedly granted any thing by letters patent, which ought not to be granted,30 or where the patentee has done an act that amounts to a forfeiture of the grant,31 the remedy to repeal the patent is by writ of scire facias [show cause] in chancery.32 This may be brought either on the part of the king, in order to resume the thing granted; or, if the grant be injurious to a subject, the king is bound of right to permit him (upon his petition) to use his royal name for repealing the patent in a scire facias .33 And so also, if, upon office untruly found for the king, he grants the land over to another, he who is grieved thereby, and traverses the office itself, is entitled before issue joined to a scire facias against the patentee, in order to avoid the grant.34
    It differs from an information filed in the court of king’s bench, of which we shall treat in the next book; in that this is instituted to redress a private wrong, by which the property of the crown is affected, that is calculated to punish some public wrong, or heinous misdemeanor in the defendant. It is grounded on no writ under seal, but merely on the intimation of the king’s officer the attorney general, who “gives the court to understand and be informed of” the matter in question; upon which the party is put to answer, and trial is had, as in suits between subject and subject. (you are no mans subject)
    AN information (An accusation or complaint made in writing to a court of competent jurisdiction) on behalf of the crown, filed in the exchequer by the king’s attorney general, is a method of suit for recovering money or other chattels, or for obtaining satisfaction in damages for any personal wrong35 committed in the lands or other possessions of the crown.

    The most usual informations are those of intrusion and debt: intrusion, for any trespass committed on the lands of the crown,36 as by entering thereon without title, holding over after a lease is determined, taking the profits, cutting down timber, or the like; and debt, upon any contract for monies due to the king, (statue staple, or statute merchant) or for any forfeiture due to the crown upon the breach of a penal statute.
    This is most commonly used to recover forfeitures occasioned by transgressing those laws, which are enacted for the establishment and support of the revenue: (Blackstone is telling us “their method) others, which regard mere matters of police and public conveyance, being usually left to be enforced by common informers (Prosecutor), in the qui tam [popular] informations or actions, of which we have formerly spoken.37
    POPULAR ACTION, punishment. An action given by statute to any one who will sue for the penalty
    TO SUE. To prosecute or commence legal proceedings for the purpose of recovering a right.
    PENALTY, contr. A clause in an agreement, by which the obligor agrees to pay a certain-sum of money, if he shall fail to fulfil the contract contained in another clause of the same agreement
    (IMO, an attorney is putting up his bond, that he will get your consent to the statute staple or merchant he has just entered into equity)
    But after the attorney general has informed upon the breach of a penal law, no other information can be received.38
    PENAL STATUTES. Those which inflict a penalty for the violation of some of their provisions.
    2. It is a rule of law that such statutes must be construed strictly. They cannot, therefore, be extended by their spirit or equity to other offences than those clearly described and provided for.
    There is also an information in rem [in respect to the thing], when any goods are supposed to become the property of the crown, and no man appears to claim them, or to dispute the title or the king. As anciently in the case of treasure-trove, wrecks, waifs, and estrays, seized by the king’s officer for his use. Upon such seizure an information was usually filed in the king’s exchequer, and thereupon a proclamation was made for the owner (if any) to come in the claim the effects;

    and at the same time there issued a commission of appraisement to value the goods in the officer’s hands: after the return of which, and a second proclamation had, if no claimant appeared, the goods were supposed derelict, and condemned to the use of the crown.39
    And when, in later times, forfeitures of the goods themselves, as well as personal penalties on the parties, were inflicted by act of parliament for transgressions against the laws of the customs and excise, the same process was adopted in order to secure such forfeited goods for the public use, though the offender himself had escaped the reach of justice.
    A WRIT of quo warranto [by what warrant] is in the nature of a writ of right for the king, against him who claims or usurps any office, franchise, or liberty, to inquire by what authority he supports his claim, in order to determine the right.40
    It lies also in case of non-user or long neglect of a franchise, or mis-user or abuse of it; being a writ commanding the defendant to show by what warrant he exercises such a franchise, having never had any grant of it, or having forfeited it by neglect or abuse.
    FRANCHISE. This word has several significations: 1. It is a right reserved to the people by the constitution; hence we say, the elective franchise, to designate the right of the people to elect their officers. 2. It is a certain privilege, conferred by grant from the government, and Vested in individuals. (show me the franchise (grant) I gave you)
    2. Corporations, or bodies politic, are the most usual franchises known to our law. They have been classed among incorporeal hereditaments, perhaps improperly, as they have no inheritable quality.
    3. In England, franchises are very numerous; they, are said to be royal privileges in the hands of a subject.

    This was originally returnable before the king’s justices at Westminster;41 but afterwards only before the justices in eyre (circuit) , by virtue of the statutes of quo warranto , 6 Edw. I. c. 1. and 18 Edw. I. St. 2.42 but since those justices have given place to the king’s temporary commissioners of assize, the judges on the several circuits, this branch of the statutes has lost its effect;43 and writs of quo warranto (if brought at all) must now be prosecuted and determined before the king’s justices at Westminster. (I think he means Chancery court, or the Exchequer)
    Return of Writs: A short account in writing, made by the sheriff, or other ministerial officer, of the manner in which he has executed a writ
    RETURN, contracts, remedies. Persons who are beyond the sea are exempted from the operation of the statute of limitations of Pennsylvania, and of other states, till after a certain time has elapsed after their returning. As to what shall be considered a return
    And is case of judgment for the defendant, he shall have an allowance of his franchise; but in case of judgment for the king, for that the party is entitled to no such franchise, or has disused or abused it, the franchise is either seized into the king’s hands, to be granted out again to whomever he shall please; or, if it be not such a franchise as may subsist in the hands of the crown, there is merely judgment of ouster, to turn out the party who usurped it.44
    THE judgment on a writ of quo warranto (being in the nature of a writ of right) is final and conclusive even against the crown.45 Which, together with the length its process, probably occasioned that disuse into which it is now fallen, and introduced a more modern method of prosecution, by information filed in the court of king’s bench by the attorney general, in the nature of a writ of quo warranto ; wherein the process is speedier, and the judgment not quite so decisive. This is properly a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him, or seize it for the crown: but has long been applied to the mere purposes of trying the civil right, seizing the franchise, or ousting the wrongful possessor; the fine being nominal only.
    DURING the violent proceedings that took place in the latter end of the reign of king Charles the second(what happened ?) , it was among other things thought expedient to new-model most of the corporation towns in the kingdom; for which purpose many of those bodies were persuaded to surrender their charters, and informations in the nature of quo warranto were brought against others, upon a supposed, or frequently a real, forfeiture of their franchises by neglect or abuse of them.

    And the conveyance was, that the liberties of most of them were seized into the hands of the king, who granted them fresh charters with such alterations as were thought expedient; and during their state of anarchy the crown named all their magistrates.
    This exertion of power, though perhaps in summo jure [in strict right] it was for the most part strictly legal, gave a great and just alarm; the new-modeling of all corporations being a very large stride towards establishing arbitrary power: and therefore it was thought necessary at the revolution to bridle this branch of the prerogative, at least so far as regarded the metropolis, by statute 2 W. & M. c. 8. which enacts, that the franchises of the city of London shall never be forfeited again for any cause whatsoever.

    THIS proceeding is however now applied to the decision of corporation disputes between party and party, without any intervention of the prerogative, by virtue of the statute 9 Ann. c. 20. which permits an information in nature of quo warranto to be brought with leave of the court, at the relation of any person desiring to prosecute the same, (who is then styled the relator) against any person usurping, intruding into, or unlawfully holding any franchise or office in any city, borough, or town corporate; provides for its speedy determination; and directs that, if the defendant be convicted, judgment of ouster as well as a fine may be given against him, and that the relator shall pay or receive costs according to the event of the suit.
    6. THE writ of mandamus [we command]46 is also made by the same statute 9 Ann. c. 20. a most full and effectual remedy, in the first place for refusal or admission where a person is entitled to an office or place in any such corporation; and, secondly, for wrongful removal, when a person is legally possessed.
    These are injuries, for which though redress for the party interested may be had by assize, or other means, yet as the franchises concern the public, and may affect the administration of justice, this prerogative writ also issues from the court of king’s bench, commanding, upon good cause shown to the court, the party complaining to be admitted or restored to his office.
    And the statute requires, that a return be immediately made to the first writ of mandamus ; which return may be pleaded to or traversed by the prosecutor, and his antagonist may reply, take issue, or demur, and the same proceedings may be had as if an action on the case had been brought for making a false return; and, after judgment obtained for the prosecutor, he shall have a peremptory writ of mandamus to compel his admission or restitution; which latter (in case of an action) is effected by a writ of restitution.47 So that now the writ of mandamus , in cases within this statute, is in the nature of an action, and a writ of error may be had thereon.48

    THIS writ of mandamus may also be issued, in pursuance of the statute 11 Geo. I. c. 4. in case within the regular time no election shall be made of the mayor or other chief officer of any city, borough, or town corporate, or (being made) it shall afterwards become void; to require the electors to proceed to election, and proper courts to be held for admitting and swearing in the magistrates so respectively chosen.
    WE have now gone through the whole circle of civil injuries, and the redress which the laws of England have anxiously provided for each. In which the student cannot but observe, that the main difficulty which attends their discussion arises from their great variety, which is apt at our first acquaintance to breed a confusion of ideas, and a kind of distraction in the memory: a difficulty not a little increased by the very immethodical arrangement, too justly complained of in our ancient writers; but which will insensibly wear away when they come to be reconsidered, and we are a little familiarized to those terms of art in which the language of our ancestors has obscured them.
    Terms of art there will unavoidably be in all sciences; the easy conception and thorough comprehension of which must depend upon frequent use: and the more subdivided any branch of science is, the more terms must be used to express the nature of these several subdivisions, and mark out with sufficient precision the ideas they are meant to convey.
    This difficulty therefore, however great it may appear at first view, will shrink to nothing upon a nearer approach; and be rather advantageous than of any disservice, by imprinting a clear and distinct notion of the nature of these several remedies.
    And, such as it is, it arises principally from the excellence of our English laws; which adapt their redress exactly to the circumstances of the injury, and do not furnish one and the same action for different wrongs, which are impossible to be brought within one and the same description: whereby every man knows what satisfaction he is entitled to expect from the courts of justice, and as little as possible is left in the breast of the judges, whom the law appoints to administer, and not to prescribe the remedy.
    And I may venture to affirm, that there is hardly a possible injury, that can be offered either to the person or property of another, for which the party injured may not find a remedial writ, conceived in such terms as are properly adapted to his own particular grievance.

    IN the several personal actions which we have cursorily explained, as debt, trespass, detinue, action on the case, and the like, it is easy to observe how plain, perspicuous, and simple the remedy is, as chalked out by the ancient common law.
    In real actions for the recovery of landed and other permanent property, as the right is more intricate, the feudal or rather Norman remedy by real actions is somewhat more complex and difficult, and attended with some delays. And since, in order to obviate those difficulties, and retrench those delays, we have permitted the rights of real property to be drawn into question in mixed or personal suits, we are (it must be owned) obliged to have recourse too such arbitrary fictions and expedients, that unless we had developed their principles, and traced out their progress and history, our present system of remedial jurisprudence (in respect of landed property) would appear the most intricate and unnatural, that ever was adopted by a free and enlightened people.
    BUT this intricacy of our legal process will be found, when attentively considered, to be one of those troublesome, but not dangerous, evils which have their root in the frame of our constitution, and which therefore can never be cured, without hazarding every thing that is dear to us.
    In absolute governments, when new arrangements of property and a gradual change of manners have destroyed the original ideas, on which the laws were devised and established, the prince by his edict may promulgate a new code, more suited to the present emergencies. But when laws are to be framed by popular assemblies, even of the representative kind, it is too Herculean a task to begin the work of legislation afresh, and extract a new system from the discordant opinions of more than five hundred counselors
    A single legislator or an enterprising sovereign, a Solon or Lycurgus, a Justinian or a Frederick, may at any time form a concise, and perhaps an uniform, plan of justice; and evil betide that presumptuous subject who questions its wisdom or utility. But who, that is acquainted with the difficulty of new-modeling any branch of our statute laws (though relating but to roads or to parish-settlements) will conceive it ever feasible to alter any fundamental point of the common law, with all its appendages and consequences, and set up another rule in its stead?
    When therefore, by the gradual influence of foreign trade and domestic tranquility, the spirit of our military tenures began to decay, and at length the whole structure was removed, the judges quickly perceived that the forms and delays of the old feudal actions, (guarded with their several outworks of essoins, vouchers, aid-prayers, and a hundred other formidable entrenchments) were ill suited to that more simple and commercial mode of property which succeeded the former, and required a more speedy decision of right, to facilitate exchange and alienation.

    Yet they wisely avoided soliciting any great legislative revolution in the old established forms, which might have been productive of conveyances more numerous and extensive than the most penetrating genius could foresee; but left them as they were, to languish in obscurity and oblivion, and endeavored by a series of minute contrivances to accommodate such personal actions, as were then in use, to all the most useful purposes of remedial justice: and where, through the dread of innovation, they hesitated at going so far as perhaps their good sense would have prompted them, they left an opening for the more liberal and enterprising judges, who have sat in our courts of equity, to show them their error by supplying the omissions of the courts of law.
    And, since the new expedients have been refined by the practice of more than a century, and are sufficiently known and understood, they in general answer the purpose of doing speedy and substantial justice, much better than could now be effected by any great fundamental alterations. The only difficulty that attends them arises from their fictions and circuities, but, when once we have discovered the proper clew, that labyrinth is easily pervaded.
    We inherit an old Gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant. The moated ramparts, the embattled towers, and the trophied halls, are magnificent and venerable, but useless. The inferior apartments, now converted into rooms of conveyance, are cheerful and commodious, thought their approaches are winding and difficult.
    IN this part of our disquisitions I however thought it may duty to unfold, as far as intelligibly I could, the nature of these real actions, as well as of personal remedies. And this not only because they are still in force, still the law of the land, though obsolete and disused; and may perhaps, in their turn, be hereafter with some necessary corrections called out again into common use; but also because, as a sensible writer has well observed,49 “whoever considers how great a coherence there is between the several parts of the law, and how much the reason of one case opens and depends upon that of another, will I presume be far from thinking any of the old learning useless, which will so much conduce to the perfect understanding of the modern.” And besides I should have done great injustice to the founders of our legal constitution, had I led the student to imagine, that the remedial instruments of our law were originally contrived in so complicated a form, as we now present them to his view:
    had I, for instance, entirely passed over the direct and obvious remedies by assizes and writs of entry, and only laid before him the modern method of prosecuting a writ of ejectment.

  7. Part 2 Foreclosure is a special action.

    Special Proceedings
    PROCEEDING. In its general acceptation, this word means the form in which actions are to be brought and defended, the manner of intervening in suits, of conducting them, the mode of deciding them, of opposing judgments and of executing.
    2. Proceediugs are ordinary and summary. 1. By ordinary proceedings (common law) are understood the regular and usual mode of carrying on, a suit by due course at common law. 2. Summary proceedings (civil law) are those when the matter in dispute is decided without the intervention of a jury; these must be authorized by the legislature, except perhaps in cages of contempts, for such proceedings are unknown to the common law.
    3. In Louisiana, there is a third kind of proceeding, known by the name of executory proceeding, which is resorted to in the following cases: 1. When the creditor’s right arises from an act importing a confession of judgment, and which contains a privilege or mortgage in his favor. 2. When the creditor demands the execution of a judgment which has been rendered by a tribunal different from that within whose jurisdiction the execution is sought. Code of Practice, art. 732.
    4. In New York the code of practice divides remedies into actions and special proceedings. An action is a regular judicial proceeding(common law), in which one party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offence. Every other remedy is a special proceeding. 2.

    “For in order to be entitled to sue an action of trespass for goods before the king’s justiciars, the plaintiff is directed to make affidavit that the cause of action does really and bona fide (good faith) amount to 40 s: which affidavit is now unaccountably disued,27 except in the court of exchequer.” (book 3 ch 4)
    (if you don’t find this affidavit, do a writ of error as a plea of the crown)
    court of king’s bench retaining all the jurisdiction which was not cantoned out to other courts, and particularly the superintendence of all the rest by way of appeal; and the sole cognizance of pleas of the crown or criminal causes (book 3 ch 4)
    For pleas of suits are regularly divided into two sorts; pleas of the crown, which comprehend all crimes and misdemeanors, wherein the king (on behalf of the public) is the plaintiff (book 3 ch 4)
    This certain place was established in Westminster-hall, the place where the aula regis originally sat when the king resided in that city; and there it has ever since continued. And the court being thus rendered fixed and stationary, the judges became so too, and a chief with other justices of the common pleas was thereupon appointed; with jurisdiction to hear and determine all pleas of land,
    and injuries merely civil between subject and subject (book 3 ch 4)
    The word proceeding may be used for all actions or it may be used for something other than the usual type of lawsuit. For example, a special proceeding may be a particular procedure for handling a certain type of dispute. Special proceedings may be commenced by a petition or motion even when no full-fledged lawsuit is pending. They usually are confined to disputes that were not recognized under the Common Law or in Equity. For example, a proceeding to challenge decisions made by administrative agencies may be a special proceeding.
    A summary proceeding is governed by accelerated methods that produce a quick decision. This is done by elimination of a jury, a presentment, or indictment, or other elements that are allowed in regular proceedings. Summary proceedings are available only for certain types of cases, such as small claims, or in certain courts, such as a conciliation or Small Claims Court.
    Supplementary proceedings are separate from the original action. They help a successful party collect what is owed on a judgment by summoning the defendant-debtor, requiring that individual to disclose what he or she owns, and ordering that it be delivered in order to satisfy the judgment.

    One counties special proceeding court..: (go ask them if these are civil, equity, or common law proceedings)
    The Special Proceedings Division is located behind the elevators on the 12th floor of the Wake County Courthouse. Their primary functions are as follows:
    • Adoptions
    • Foreclosures
    • Name Changes
    • Guardianship Proceedings
    • Incompetency Hearings • Judicial Waivers
    • Motor Vehicle Liens
    • Exemption Hearings
    • Claim & Delivery Hearings

    Special Proceedings
    in Soviet civil procedure, a type of procedure in a court of original jurisdiction. Special proceedings are used in hearing cases in which, unlike suits and cases arising from administrative law relationships, there is no dispute as to a legal right.
    Examples include cases to establish facts that are legally important, to declare a citizen missing or dead, to declare a citizen of limited capacity or incapable, to declare property ownerless, and to establish that information in the registers of civil status is incorrect.
    Special proceedings are also used in cases involving complaints against the actions of notaries and agencies performing notary functions and in cases to restore rights under lost bearer documents. The court hears cases of special proceedings on the application of interested persons or organizations.
    If a dispute as to a legal right arises while the case is being heard by the procedure of special proceedings, the court leaves the application unheard, and the interested parties may initiate a suit in court according to the general rules.

    SELF-HELP CENTER
    HOW TO COMMENCE A SPECIAL PROCEEDING from New York

    Next comes the caption, a box inside in which appears the names of all the parties, the petitioner first and the party sued, called the respondent, below. The respondent or respondents named should be those persons claimed to have made the determination or decision at issue

    A PHOTOCOPY OF
    THE AGENCY’S FINAL DETERMINATION WHICH IS THE SUBJECT OF THE PROCEEDING AND ANY INTERMEDIATE RULINGS MUST BE INCLUDED

    Generally speaking, a petitioner may only obtain relief in this court in the form of review (and if successful, reversal) of a final agency action

    The petitioner should attach to the petition a verification, which is a sworn statement by the petitioner, under penalty of perjury, that the facts contained in the petition are all true. This document must be signed by the petitioner in front of a notary public, who must acknowledge, stamp and sign the verification.
    An example of a verification is included in Appendix A.

  8. Ok here is steps to foreclosure,acceptance of deed and revocation of deed of truts so lets educate the world, Foreclosure- this is a Special Proceeding. Only law you can follow and win with ease.
    SELF-HELP CENTER

    HOW TO COMMENCE A SPECIAL PROCEEDING

    NOTE: PERSONS WITHOUT COUNSEL ARE ADVISED TO CONSULT AN ATTORNEY. COURT STAFF MAY NOT GIVE LEGAL ADVICE, PREPARE YOUR PAPERS OR ACT AS YOUR ATTORNEY.

    ***TAKE NOTICE: A SPECIAL PROCEEDING CAN BE USED ONLY WHERE IT IS SPECIFICALLY AUTHORIZED BY A STATUTE. THERE ARE A NUMBER OF THESE, BUT GENERALLY THEY RELATE TO CHALLENGING THE ACTION OR DETERMINATION OF A GOVERNMENTAL OFFICER OR AGENCY (SEE CPLR ARTICLE 78). LANDLORD-TENANT RELATIONS CAN ALSO BE DETERMINED IN A SPECIAL PROCEEDING IN SOME INSTANCES OTHERWISE, SPECIAL PROCEEDINGS USUALLY CANNOT BE BROUGHT AGAINST PRIVATE PARTIES.

    In order to commence the kind of lawsuit known as a special -proceeding, a person must

    prepare a document called a petition, which is a statement of the person’s charges or the grievance of which the person complains. The person bringing the case is called the -petition

    PETITION. An instrument of writing or printing containing a prayer from the person presenting it, called the petitioner, to the body or person to whom it is presented, for the redress of some wrong, or the grant of some favor, which the latter has the right to give.
    2. By the constitution of the United States the right “to petition the government for a redress of grievances,” is secured to the people. Amendm. Art. 1.
    3. Petitions are frequently presented to the courts in order to bring some matters before them. It is a general rule, in such cases, that an affidavit should be made that the facts therein contained are true as far as known to the petitioner, and that those facts which he states as knowing from others be believes to be true
    Did you find this affidavit in the foreclosure proceeding. ?

    Preparing the Petition

    Every document served in a case in this court, including the petition, should be typed or printed legibly in English, in black ink, on 8 1/2 X 11 inch paper, double spaced, using one side of the paper only. CPLR 2 1 0 1.
    The top left-hand comer of the petition should designate the court and county of the

    proceeding. Next comes the caption, a box inside in which appears the names of all the parties, the

    petitioner first and the party sued, called the respondent, below. The respondent or respondents named should be those persons claimed to have made the determination or decision at issue. A space should be left on the right-hand side for the insertion of an identifying number, called the index numb , which number will be filled in later as explained below. Attached as Appendix A is a blank form of petition.

    In the English practice, when an in ferior court in obedience to the writ of certiorari, returns an indictment into the K. B. , it is annexed (The union of one thing to another) to the caption, then called a schedule, and the caption concludes with stating, that ” it is presented in manner and form as appears in a certain indictment thereto annexed, ” and the caption and indictment are returned on separate parch ments
    Caption is another name for arrest
    filled in later: this might be considered an alteration in common law..?

    The petition should set forth the allegations in the case in separate, numbered paragraphs. Each paragraph should be short and contain only one material allegation. The petition should begin with a brief identification of the petitioner and the respondent(s).
    The petition should next set forth a factual description of the determination or events upon which the claim is based in chronological order (including the dates of key events).
    “Any incorrect date, is reason enough for it to be considered unlawfull… ie..plea of the crown, of which you are the plaintiff.. and according to Blackstone.. The king is the plaintiff on a plea of the crown.. our answer to their petition.. is a petition done as the king.. asking by what “right” does this special proceeding petitioner bring his claim?”

    The petitioner should be certain to set out factual assertions in a clear and coherent fashion.
    Bouvier’s definition of certain: “The third degree of certainty, is that which precludes all argument, inference, or presumption against the party, pleading, and is that technical accuracy which is not liable to the most subtle and scrupulous objections, so that it is not merely a rule of construction, but of addition; for where this certainty is necessary, the party must not only state the facts of his case in the most precise way, but add to them such as show that they are not to be controverted (disputed) , and, as it were, anticipate the case of his adversary”

    Although the petitioner is familiar with the facts, he or she should keep in mind that the court will be unaware of them except insofar as they are presented to the court in the petition. Accuracy is important and errors may be damaging to the petitioner’s cause. Legible copies of any pertinent documentary evidence should be included as exhibits, with index tabs annexed to each such exhibit. If the proceeding concerns a claim that a government agency acted incorrectly or illegibly,
    A PHOTOCOPY OF THE AGENCY’S FINAL DETERMINATION WHICH IS THE SUBJECT OF THE PROCEEDING AND ANY INTERMEDIATE RULINGS MUST BE INCLUDED. (They must include the “agency final determination” ask for it!!!)
    Generally speaking, a petitioner may only obtain relief in this court in the form of review

    (and if successful, reversal) of a final agency action (sounds like they are saying you have been awarded something.. and they want it).

    In the case of a parking ticket, for example, the petitioner will likely be unsuccessful in this court if he or she failed to take an appeal entirely through the appeal process. The petitioner should clearly describe each step in the administrative process that the petitioner took, each decision made by the agency along the way, and what the final action by the agency was. (ask… who is the agency they are talking about.. point it out to you)….

    There are time limitations of varying lengths within which lawsuits must be brought. In the case of Article 78 proceedings, the limitation generally is four months from the final agency action.’ The petition must make clear when the final agency action took place.
    The petition should conclude with a demand for a form of relief. Frequently, the petitioner

    will seek a reversal of the agency’s action (e. g., setting aside and vacating the parking ticket). In such proceeding, the petition should, therefore, state, in so many words or in effect, that the ”petitioner prays (requests) that the decision of the agency, dated providing be set aside and annulled.”
    Ever found anything in your foreclosure like above? Who is the “agency” ask…
    In a special proceeding challenging a decision of a government agency in regard to some claimed right of the petitioner, the petition should specifically state, in detail, why the petitioner contends that the agency action was wrong and must be annulled. The court may overturn agency action only if the determination or action made or taken (i) was in contravention of law (similar to misdemeanor in common law countries), (ii) was arbitrary, capricious or an abuse of discretion, or (iii) (where a hearing was held at the agency level) was not supported by substantial evidence in the record. (in the common law)

    The petitioner should attach to the petition a verification (affidavit) , which is a sworn statement by the petitioner, under penalty of perjury, that the facts contained in the petition are all true. This document must be signed by the petitioner in front of a notary public, who must acknowledge, stamp and sign the verification. An example of a verification is included in Appendix A. Do you find an affidavit?

    in addition to the above, the petitioner should also be sure that he or she brings the special proceeding in the proper county. There are a number of rules about what is a proper venue for a case that generally relate to the residence of the various parties and where the underlying subject matter of the lawsuit arose.
    “Certain substantive statutes mandate different time limitations. A review of the pertinent statute (law) should be made prior to commencement of such a proceeding.”

    See, Article 5 of the Civil Practice Law and Rules. Generally, the petitioner must commence a special proceeding against a public body (they are saying …your body) or officer in any county within the judicial district in which the respondent made the determination complained about or refused to perform the duty allegedly violated, or where the underlying proceedings were brought, or where the material events took place, or where the principal office of the respondent is located. The judicial district of our court is the Sixth Judicial District.
    Once the petitioner has prepared a petition, he or she must start the case. This is done as follows:

    How to Set the Wheels in Motion

    New York law requires that papers commencing a special proceeding must be filed with the

    County Clerk and that an identifying number, an Index Number, be obtained. The petitioner should go to the County Clerk’s Office. The petitioner will have to fill out an Index Number Cover Sheet form and purchase an Index Number from the cashier (cost $21 0). The petitioner must write in the Index Number assigned by the County Clerk in the Index Number space to the right of the caption on each of the documents prepared by petitioner. A copy of all of these documents must be filed with the County Clerk, who will open a court file for the case. The Clerk will stamp the petitioner’s copies to show that the papers were filed and will issue a receipt for the purchase of an Index Number.

    The petitioner needs to file with the Clerk the following initial legal papers: (i) a copy of a petition and a notice of petition, or (ii) a copy of the petition and a copy of an order to show cause. “In some jurisdictions, such as New York, an “order to show cause” is used routinely to initiate a motion when a traditional “notice of motion” would not be sufficient—for example, when the moving party wishes to vary the usual schedule for considering a motion, or when a temporary restraining order or other provisional remedy is being sought”

    In order to bring the proceeding before a Justice (the proper title of a Judge assigned to Supreme Court is Justice) of this court, the petitioner needs to request that the case be placed before a Justice on a calendar. This is done in either of two ways: (1) by serving and filing a notice of -petition, (why does petition have a – in front of it.. –petition?) or (2) proceeding by order to show cause.
    A notice of petition is a document directed to the respondent(s) that advises the respondent(s) of where and when the petition is to be submitted to a Justice and identifies all papers upon which the special proceeding is based. An example of a notice of petition is included in Appendix A.

    An order to show cause also serves to give notice to all parties, but the form of the document is different. Annexed as Appendix B is an example of an order to show cause in the context of a special proceeding. This document, unlike the notice of petition, is in reality a court order and must be presented to and be signed by a Justice of the court at the outset of the process in the court.
    Outset : The initial stage of something; the beginning … dates better match up.. , and it better be signed by the “Justice”… make sure that is the title you see…… “Justice”….

    ***PLEASE NOTE: THE COURT IS UNDER NO OBLIGATION TO SIGN THE ORDER TO SHOW CAUSE OR GRANT TEMPORARY RELIEF, AND MAY INSTEAD TELL YOU TO MAKE YOUR APPLICATION BY MEANS OF A NOTICE OF PETITION.

    Filing in Court – Moving bv Order to Show Cause

    When moving by order to show cause, the petitioner should prepare the petition as explained above and also, an order to show cause in a form similar to the example annexed as Appendix B.
    The petitioner should bring the original and two copies of the papers to court. One copy should be filed with the County Clerk, as explained above.
    The petitioner must also complete and file a form known as a Request for Judicial Intervention (”RJI,” for short). The purpose of this form is to make clear to the court the kind of case involved and to formally request the intervention of a Justice. The filing fee for the RJI is $95. An RJI form may be obtained from the Supreme & County Court Clerk’s Office or the Public Legal Resource Center.

    At this point, a filing with the County Clerk has been made, but a filing with the Court has not yet occurred. The petitioner should next proceed to the Supreme & County Court Clerk’s Office. The original petition and order to show cause must then be presented to a clerk in that office, together with proof of the previous filing with the County Clerk, proof of purchase of an Index Number and a completed RJ1 form together with a certified check or money order for $95 payable to the Office of the County Clerk.

    The Clerk’s Office will then review the petitioner’s papers to make sure that they are in proper form, and if so, will assign the case to a Justice on a random basis. If emergency relief is requested, petitioner must also submit an emergency affidavit which briefly explains the nature of the relief requested and why immediate or emergency relief is needed. (Sample Emergency Affidavit forms are available from the Public Legal Resource Center.)
    The papers will then be delivered to the assigned Justice for immediate review and if found acceptable, signed by him or her and then given to you so you can copy them (return the originals to the Court Clerk’s Office) and arrange to have them served in the manner directed by the Court.

    If emergency relief is not required, the papers are simply left with the Court Clerk’s Office.
    After the papers are reviewed, they will be either:

    a) Marked to be returned to you for correction, or

    b) sent to the assigned Justice for signature.

    You can check the status of your Order to Show Cause by calling the Court Clerk’s Office. (Wait at least 48 hours before calling).
    If your papers need corrections, you should return to the Court Clerk’s Office, pick them up, correct them as needed and resubmit them.
    If your papers are correct as to form, they will be forwarded by the Court Clerk’s Office to the assigned Justice’s Chambers for signature. If the Justice finds them satisfactory, he/she will sign them, then fill in the return date and specify when and how the papers are to be served.
    When the order (show cause?) has been signed, the petitioner must “conform a copy,” that is, reproduce on a copy of the papers with each and every marking made thereon by the Justice.
    This copy must then be photocopied and served upon the attorneys for all parties to the case in the manner and within the deadline set by the Justice. (For information about service, ask the Public Legal Resource Center about its brochure, How to Serve Legal Papers.) (Did they do this right? Ie serve)
    Blackstone will say exactly how they must serve a show cause to be lawfull.

    After service is made, the petitioner must see to it that an affidavit of service is prepared.
    The original must be presented to the Court on the return date. (The case will be called in the assigned Justice’s courtroom.) The petitioner must be present at that time (the petitioner must be there on the return date) especially if the Court granted a stay (TRO) until the hearing date of the motion and the petitioner wishes it to continue until the motion is decided.
    Petitioners must ask for this when the order to show cause is called before the Court at calendar call.
    If the other parties do not submit opposing papers and do not appear on the return date, the court may take action on the order to show cause provided that it is satisfied from the affidavit of service that the other parties were properly served with the order to show cause and supporting papers. (your supporting paper… plea of the crown to appeal the case to the kings bench).. The other parties may submit papers in opposition to the petition (usually in the form of an answer together with opposing affidavits and exhibits). This ordinarily will be done within the time specified by the Justice when the Order to Show Cause is signed. All opposition papers must also be properly served on the petitioner as well as all other parties to the case.

    Moving by Notice of Petition

    The proceeding can be brought before the court without need for a Justice to sign an order to show cause at the outset.
    Instead, the petitioner may proceed directly by notice of petition, as follows.

    The petitioner should prepare a notice of petition and petition and an RJI. Since the initiating papers will not first be presented to a Justice, the petitioner must select a return date and identify the place at which the matter is to be heard. That place is the Courtroom of the assigned Justice. The return date can be any weekday at 9:30 A.M., but the return date must be selected keeping in mind that the respondent(s) must be given adequate time to prepare an opposing or answering papers.

    Therefore, the return date selected must be at least 8 days after service of the initiating papers has been made on all respondents.’ As explained earlier, the petitioner should file one copy of these papers with the CountyClerk and should purchase an Index Number before service is made. Next, the petitioner should_2
    In an Article 78 proceeding, 20 days advance notice must be provided. Also, if a notice of petition that was served at least 12 days prior to the return date expressly demands that the answer be served days prior to the return date, the respondents must serve his/her/its answer at least 7 days prior thereto. In that event, the petitioner will have a right to serve affidavits and a memorandum of law in response to the answer (called a reply at least one day prior to the return date.

    8
    cause a copy of the papers and an RJI form to be served upon all respondents. Then the petitioner should file the originals of all of the papers and the original RJI with the court.

    At the same time, the petitioner must file two duplicate original affidavits of service; one with the Court Clerk’s Office and one with the County Clerk. The petitioner will also have to pay the $95 RJI fee at that time by certified check or money order payable to the Office of the County Clerk.

    The Court Clerk’s Office will randomly assign the matter to a Justice and will place it on a

    calendar for the return date selected by the petitioner. For more on this subject, see How to File a

    Request for Judicial Intervention which is available from the Public Legal Resource Center.

    The original papers must be delivered to the Court Clerk’s Office at least five business days prior to the return date so that the petition may be recorded in the court’s computer system and placed on the calendar. In the first instance, the place at which the motion will be returnable is the Assigned Justice’s Courtroom. Oral (spoken) argument may take place there but usually oral argument takes
    place only when, where and if the assigned Justice directs. This is so for all petitions brought in our

    court by notice of petition. The parties are free upon agreement to adjourn petitions (within limits) so as to accommodate their schedules. Answering and reply papers are to be served upon all other parties to the case within the deadlines applicable. The original answering and reply papers (to which must be attached proof that the papers were served on all other parties) must be delivered to the Courtroom at the call of the calendar at 9:30 A.M. on the return date.
    A word of caution on return dates. Sometimes the assigned Justice and/or the Court Clerk’s

    Office will direct or require a change in the return date you selected.

    Accordingly, a few days after you submit your notice of petition you must check with the

    Clerk’s Office to see if this happened. You can do this by calling the Court Clerk’s Office. (Have your Docket Number ready).
    Once the motion is marked submitted, it is either sent to the Justice assigned to the case for

    decision or is scheduled for oral argument in front of that Justice. This depends upon the procedures adopted by the Justice in question.
    Remember, you are responsible for keeping track of the status of your petition after it is submitted and doing whatever follow-up is necessary after it is decided.
    To check the status of your petition, call the Court Clerk’s Office (have your Index Number ready). For information on follow-up steps that are required if the petition is granted, obtain the brochure from the Public Legal Resource Center called, Submit-Settle-Enter Orders.

  9. king joseph — Can give me a little more explanation on “the revocation of deed of trust” concept you discuss below?

    Thanks

  10. been working hard to help others and saw this post. Accept and acknowledge your warranty deed and do a revocation of deed of trust. simple, accept the $10 consideration of the old tenants and become owner. You never signed the warranty deed or accepted it thats why u are occupant tenant not owner. revoke the deed of trust the same. record and enjoy your land and property. wheeew simple my brothers and sisters, dont spend money that isnt worth anything to fix your problem, read your contracts and accept or decline using your “seal” under your hand in ink. much love !

  11. OK so it must be know by now that the bundles of loans that MERS did control, they (MERS) lost the notes, so they could “electronically”
    trade (skim like the mob did at the casinos). WHY aren’t the attornies General going after them???

  12. im the former owner of my house and still leaving there. I just get the unlawful detainer but I wants to fight over it. my loan was under review for a modification and they send it any way to foreclosure on june 28th. I have until tuesday the 12th to answer the eviction. If any one can help me I’ll be really glad. This si Bank of America owner…
    Thanks

  13. Can anyone tell me for sure if bankrupty stops
    Unlawful detainer action. Bankruptcy was filed but
    an ulawful detainer was filed against me anyway.
    Jeff Clanton

  14. Please send anything new on Aurora Loan Services LLC or Aurora Bank FSB – both of which are corrupt and vicious servicers.

  15. This is a fascinating turn of events in a very complicated situation. Thanks for sharing the story here!

  16. Good Morning, I have just read the article/decision regarding Aurora Loan Servicing v. Onyeu. I am a tenant whom is being evicted due to my landlord’s foreclosure proceedings. They are both attempting to file a claim for fraudulent/wrongful foreclosure against Deutsch Bank/Citibank, neither of whom were their mortgage lender. I have until 05/03/09 to save the money and find another home to move to and am growing anxious; it will render me homelesss for sure. I am hoping that the Court will intervene somehow, but am fastly losing hope. It simply makes me sick.

  17. Kudos to Stella…

  18. Awesome. Congratulations Maher!

    Dan Edstrom
    dmedstrom@hotmail.com

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