Loading ...
Sorry, an error occurred while loading the content.

High Likelyhood: All Collection Due Process Hearings Are Void

Expand Messages
  • Legalbear
    I just posted this to my blog: When the IRS denies rights in Collection Due Process hearings, the hearing result is VOID : http://bit.ly/w2WP65 The
    Message 1 of 2 , Jan 8, 2012
    • 0 Attachment

      I just posted this to my blog: When the IRS denies rights in Collection Due Process hearings, the hearing result is "VOID": http://bit.ly/w2WP65    The question then arises, what rights do I have? Answered here in my shopping cart; 34 pages of due process quotes even those not in Due Process Hearings need: http://legalbears.com/armor/index.php?main_page=product_info&cPath=4&products_id=49 There is also a video there explaining the content and purpose of those quotes. Knowledge like this will affect your behavior in almost any encounter with government you may have; not just the IRS. Bear

       

      Call me at: 720-675-7230

      On Skype: legalbear

      Best times to call: 8:30 am to 9:00 pm MST

      Join my Yahoo Group Tips & Tricks for Court by sending an email to:

      tips_and_tricks-subscribe@yahoogroups.com

      My blog: legalbearsblog.com

      Tax sites: IRSTerminator.com IRSLienThumper.com IRSLevyThumper.com

      (formatted like this so this email doesn't end up in your spam folder)

       

    • dave
      Re: I just posted this to my blog: When the IRS denies rights in Collection Due Process hearings, the hearing result is VOID : http://bit.ly/w2WP65 The
      Message 2 of 2 , Jan 9, 2012
      • 0 Attachment

         

         

        Re: I just posted this to my blog: When the IRS denies rights in Collection Due Process hearings, the hearing result is "VOID": http://bit.ly/w2WP65    The question then arises, what rights do I have? Answered here in my shopping cart; 34 pages of due process quotes even those not in Due Process Hearings need: http://legalbears.com/armor/index.php?main_page=product_info&cPath=4&products_id=49 There is also a video there explaining the content and purpose of those quotes. Knowledge like this will affect your behavior in almost any encounter with government you may have; not just the IRS. Bear

        Comment: And remember there is a difference between VOID and Voidable. One is automatic….flat out….end of issue. Picture an attorney [or judge] doing something VOID or even pursuing someone based upon the VOID. Now imagine that officer of the court which we know otherwise as an attorney who by virtue of being that officer of the court is also an officer of government in a manner of speaking….with the duty to ‘uphold’ those laws. Yet….they have just committed something VOID. For example….placing you in the jurisdiction of the court…VOID. Kidnapping. Or demanding money when VOID. Extortion. Fraud. All it would take would be YOU noticing them of the VOID and then if they refused to act upon to correct, then indict [ a writing or statement with a paper…Alteration of Middle English enditen, to accuse, write a document] them with the rest.

         

        Here is an example in a COLLECTION matter downloaded. It makes the case its void on 2 counts:

        (1)    Included a SNIPPET of the Fair Debt Reporting Act. In most cases IF they call THEMSELVES a DEBT COLLECTOR they have to bring a case in the JURISDICTION of a RESIDENCE. [Only YOU can establish a residence in a free society….not the attorney….all he can do is take notice of your wish by virtue of no government or its agent can place someone in the political jurisdiction of association as otherwise the society is not free is it?].

        (2)    They have to serve you at a residence. Remember again KEY point above on residence.

        Now scroll to the back and look at the court case where there is highlighted KEY words such as VOID.

        Now it’s a SIMPLE matter of putting the attorney on NOTICE of the law requiring RESIDENCE in TWO instances: (1) To invoke the proper jurisdiction and (2) for proper service. [You can’t reside at a Post Office….such as MANY court case captions ‘suggest’]

        Lacking these two it is VOID. And of course the letter provided NOTICE of that fact also courtesy of the court.

         

        Next one simply CHARGES the attorney with violations WHEN something is VOID. And that includes a whole laundry list from state and federal law….why?...because written law was intended for government so its EASY to find all the violations! Now you have noticed them:

        ·         Of the law on two counts establishing what is void.

        ·         Of the extra law violations WHEN they proceed WHEN void.

        ·         Of the fact they are now inviting complicity IF other court agents act upon the void.

        ·         Of the court case opinion on that law.

        All sent certified….So Now IGNORANCE could NEVER be the excuse eh?

        Example:

        To:

        Ohio Attorney General Mike DeWine

        30 E. Broad St., 14th Floor

        Columbus, OH 43215

         

        Re:

        Weltman, Wienberg and Reis, LPA

        323 W. Lakeside Ave. Ste 200

        Cleveland, Ohio 44113-1099

        [INSERT LOCAL OFFICE HERE]

         

         

        Notification and Complaint to:

        As “firm”: Robert Bennett Weltman, 00008230

        As “firm”: Alan Harris Wienberg, 0007708

        [INSERT ATTORNEYS IN YOUR ACTION HERE….]

         

        CC;

        Michelle A. Hall

        Board of Commissioners on Grievances & Discipline

        Supreme Court of Ohio

        65 South Front Street, 5th Floor

        Columbus, Ohio 43215-3431

         

        From:

        Class Action Matter: Reference “Victims of Debt Collectors”

        [Names/Addresses on file]

         

        December , 2011

         

        Certified Mailers:

        [INSERT CERTIFIED MAILER NUMBERS HERE]

         

         

        NOTIFICATION OF FDCRA PROVISIONS [ATTACHED]

        NOTIFICATION OF COURT CASE [ATTACHED]

         

        Parties are invited to submit their evidence regarding complaints and encouraged to notify directly any appropriate credit card company president as the credit card company itself is a named party in all action. By notification no party can claim ignorance. All attorneys are expected to diligently research using simple web search tools to insure they are NOT in violation of any law and take any appropriate steps to correct.

         

        Complaint:

         

        Officer’s of the State of Ohio operating by virtue of Supreme Court Licensing authority as Officer’s of the Court and thus Officer’s of the State of Ohio are violating State of Ohio and Federal Law.

         

         

        ·         Violation of FDCRA—Filings based on numerous Court Captioned USPS Mailing Address’s-- in place of 15 U.S.C. §§ 1692i Residence--in an attempt to Feign Jurisdictional Establishment, “trick” the courts and obtain Default Judgment’s—violating law and putting other government court officer’s at risk.

        ·         Attorney Ethics Violation—related to the above and below

         

        ·         ABDUCTION: Court actions without territorial jurisdiction are VOID—not merely voidable; when VOID there is no privilege. This strips the attorney of his officer privilege. When VOID anything further is a threat and forced action. When VOID anything further “restrains the liberty.” When VOID anything further “remove another from the place where the other person is found” to place them in a VOID jurisdiction. This is ABDUCTION—see ORC 2905.05.

         

        ·         UNLAWFUL RESTRAINT: See above on VOID. Liberty from unlawful jurisdictional claims is a right traceable to fundamental law. Stripped of privilege to do so, “…no person shall knowingly restrain another of the other person’s liberty.” See ORC 2905.03

         

        ·         TRAFFICKING IN PERSONS: When VOID, any judgment and collection such as wage garnishment is simply “involuntary servitude”. See ORC 2905.32

         

        ·         THEFT and THEFT BY DECEPTION: When void, anything further after court action to collect is to “exert control over [and deprive the owner] either the property or services.” See ORC 2913.02

         

        ·         SECURING WRITINGS BY DECEPTION: When VOID, anything further is simply “securing writings by deception.”

         

        ·         IDENTITY FRAUD: Parties use “personal identifying information” without consent—even if obtained from another party. The list is extensive. See ORC 2913.49.

         

        ·         Deprivation of Rights.18 U.S.C. § 242:

         

        ·         Conspiracy against Rights. 18 U.S.C. § 241: It just takes finding two attorneys or one attorney and one paralegal or one attorney and a clerk, etc.

        ·         EMBEZZELMENT.18 U.S.C. § 645: Nothing protects a notified VOID.

        ·         PROFESSIONAL IMPROPRIETY and FRAUDULENT/DECPTIVE/MISREPRESENTATION CONDUCT by members of the bar association and by implication the “FIRM” as defined in State of Ohio Rules of Professional Conduct/ Responsibility.

         

         

         

         

         

         

        References:

         

        http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre27.pdf

         

        http://www.supremecourt.ohio.gov/Boards/BOC/default.asp

         

        ·         CANON 9: A Lawyer Should Avoid Even the Appearance of Professional Impropriety

        ·         EC 8-5  Fraudulent, deceptive, or otherwise illegal conduct by a participant in a proceeding before a tribunal or legislative body is inconsistent with fair administration of justice, and it should never be participated in or condoned by lawyers. 

        ·         RULE 8.4:  MISCONDUCT

        It is professional misconduct for a lawyer to do any of the following:

        (a) violate or attempt to violate the Ohio Rules of Professional Conduct,

        knowingly assist or induce another to do so, or do so through the acts of another;

        (b) commit  an  illegal act that reflects adversely on the lawyer’s honesty or

        trustworthiness;

        (c) engage in conduct involving dishonesty,  fraud, deceit, or

        misrepresentation;

        (d) engage in conduct that is prejudicial to the administration of justice;

        (e) state or imply an ability to influence improperly a government agency or

        official or to achieve results by means that violate the Ohio Rules of Professional

        Conduct or other law;

        (f) knowingly assist a judge or judicial officer in conduct that is a violation of

        the Ohio Rules of Professional Conduct, the applicable rules of judicial conduct, or other

        law;

        (g) engage, in a professional capacity, in conduct involving discrimination

        prohibited by law because of race, color, religion, age, gender, sexual orientation,

        national origin, marital status, or disability;

        (h) engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.

         

         

         

         

         

         

         

         

         

         

         

         

         

         

         

         

         

        NEW v. ALL TRANSPORTATION SOLUTION INC

        NEW et al., Appellees, v. ALL TRANSPORTATION SOLUTION, INC. et al., Appellants.

        08AP-213.No.

        -- August 05, 2008



        Malek & Malek and Emmanuel Olawale, for appellees.Stanlee E. Culbreath, for appellants.

         Because the record clearly shows that the defendant(s) were served at their legal address, we hold that service was proper, and we affirm the judgment of the trial court. The Ohio Rules of Civil Procedure do not require that the addressee personally acknowledge receipt of certified mail in order for service of process to be effective. 1} The issue in this case is whether service of process is proper on an individual, and on a corporation, when proof of service shows that the defendant's wife was served at the defendant's home, which was also listed as the address of the defendant-corporation's statutory agent.   

         This is also Mamay's home address.2} Gebeyehu G. Mamay owns and operates a taxicab service, All Transportation Solution, Inc., which is incorporated in the state of Ohio, having its registered statutory agent located at 544 Cumberland Drive, Whitehall, Ohio 43213.

         Mamay did not respond to either summons. The items delivered to Mamay and his company were properly addressed and were signed for by an individual later identified as Mamay's wife. The original certified mail returned receipts are part of the trial court record. The plaintiffs served all three parties with the complaint via certified mail on May 7, 2007. They filed a complaint against Mamay, his company, and the individual taxi driver on April 13, 2007.   3} On April 13, 2005, Larry D. New and Debra Booth were injured in an automobile collision involving one of Mamay's taxis.

         Despite this phone call, defense counsel did not contact the trial court, or make an official appearance. The court sent a copy of this entry to Mamay, which he apparently received on November 5, 2007, because Mamay's attorney contacted plaintiffs' counsel asking for relief from the default judgment. The court granted the motion for default on November 1, 2007, and set a hearing to determine damages. Again, they did not respond. Plaintiffs served copies of this motion on Mamay and his company at their addresses of record. 4} Nearly six months later, plaintiffs moved the trial court for entry of default judgment.

         Despite having notice of this hearin5} On December 21, 2007, a trial court magistrate presided over the scheduled damages hearing.  Following the hearing, the magistrate recommended judgment for the plaintiffs.g, neither Mamay nor his attorney appeared in court.

         For all intents and purposes, Mamay's quasi-Civ.R. 60(B) motion was more akin to an objection to the magistrate's report, which the trial court impliedly overruled by entering final judgment on January 24, 2008. Nonetheless, the plaintiffs filed a timely memorandum contra Mamay's motion for relief from judgment. This motion was essentially a nullity, however, because the trial court had not yet entered judgment. 6} A week after the magistrate filed the decision, Mamay filed what is titled as a motion for relief from judgment, under Civ.R. 60(B).

         Appellant assigns two errors for our review:7} All Transportation Solution filed a notice of appeal on March 14, 2008, which was deemed timely because of a clerk of courts error and delay in mailing copies of the final judgment.

        The trial court erred by failing to grant defendant-appellant's motion to deny plaintiff-appellee's motion for default judgment filed on January 15, 2008.[I.]

        The trial court abused its discretion by granting the plaintiff-appellee's motion for default judgment when such judgment was against the manifest weight of the evidence.[II.]

        Progressive Cas. Ins. Co. v. Gibson (Dec. 16, 1993), Franklin App. No. 93AP-1088, 1993 WL 524932. Nonetheless, we note that the proper standard of review of decisions denying relief from default judgment is abuse of discretion. 8} All Transportation Solution does not suggest a particular standard of review.

        9} Because any judgment lacking lawful service is null and void, see, e.g., Harris v. Pitts (May 19, 1998), Franklin App. No. 97APF10-1293, 1998 WL 255552 (citing O.B. Corp. v. Cordell [1988], 47 Ohio App.3d 170, 171, 547 N.E.2d 1201); see also Kurtz v. Kurtz (1991), 71 Ohio App.3d 176, 182, 593 N.E.2d 322; Samson Sales, Inc. v. Honeywell, Inc. (1981), 66 Ohio St.2d 290, 293, 20 O.O.3d 277, 421 N.E.2d 522, we must first address service of process.

         However, in Mitchell, the Supreme Court of Ohio confirmed that the addressee is not required to sign the return receipt, and the court further declared that the rules do not require that process be delivered to a person expressly authorized by the defendant to receive service of process.Prior to its amendment in 1980, there was some confusion as to whether Civ.R. 4.3(B)(1) required that the addressee personally sign for the certified mail for service to be perfected. See id.; see also Civ.R. 4.1(C). Individuals must be served at their “usual place of residence,and any person residing at that address who is of “suitable age and discretion” may receive that service. See Civ.R. 4.1(A); see also Mitchell v. Mitchell (1980), 64 Ohio St.2d 49, 50-51, 18 O.O.3d 254, 413 N.E.2d 1182. The preferred method for serving process in the state of Ohio is certified mail, which is evidenced by a signed return receipt. 10} Service of process is governed by Rule 4 of the Ohio Rules of Civil Procedure.

        We have never held-and we are not aware of any controlling authority that has held-that certified mail must be delivered to and signed forCiv.R. 4.2(F). However, service may be addressed to the corporation's statutory agent “at any of its usual places of business; or by serving an officer or a managing or general agent of the corporation.” 11} Corporations are served in the same manner as individuals.  by the person to whom it is addressed, whether the defendant is an individual, a corporation, or other legal entity.

        Ohio Valley Radiology Assocs., Inc. v. Ohio Valley Hosp. Assn. (1986), 28 Ohio St.3d 118, 121, 28 OBR 216, 502 N.E.2d 599. Thus, “default judgment” is judgment entered against a defendant who has failed to respond to an affirmative pleading. Failure to respond to the summons will usually result in the court issuing a default judgment against the defendant. Typically, a defendant will respond by filing an answer to the complaint, or some other pre-answer motion (e.g., motion to dismiss, more definite statement, etc.). 12} After a party is served with a summons, the party served must respond to the summons within the time period described in the civil rules.

        Id., citing Civ.R. 55(B).The court may later set aside a default judgment in accordance with Civ.R. 60(B). Id. If the court must examine evidence, establish any additional elements of a claim, or determine what damages are appropriate, the court may proceed ex parte (i.e., without the defendant) and enter judgment accordingly. Progressive Cas., Franklin App. No. 93AP-1088, 1993 WL 524932, quoting Civ.R. 55(A).   13} Default judgments are governed by Civ.R. 55, which provides that when a defendant “has failed to plead or otherwise defend,” the plaintiff may move the court for judgment by default.

         Just as due process requires that defendants have notice and an opportunity to defend the claims against them, those who choose to ignore such claims are not able to prevent the individuals whom they have harmed from having their own day in court. Default judgments are a necessary tool, however, because sometimes defendants simply will not address the merits of the lawsuit when they are sued. (“Where timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that cases may be decided on their merits.”) See, e.g., Progressive Cas., citing GMAC v. Deskins (1984), 16 Ohio App.3d 132, 134, 16 OBR 140, 474 N.E.2d 1207. 14} Because a default judgment is not an adjudication on the merits, it is not a favored resolution.

         The case illustrates a paradigmatic example of why default judgments are sometimes necessary.15} It is clear from the record that Mamay has not diligently contested this case.

         Thus, service on Mamay and All Transportation Solution was proper. The Supreme Court of Ohio was clear in the Mitchell case, 64 Ohio St.2d 49, 18 O.O.3d 254, 413 N.E.2d 1182, when the Supreme Court held that any individual can receive certified mail on behalf of the named defendant. This is not a cognizable defense. Mamay does not argue that the certified mail was not delivered, or was improperly addressed, only that he did not authorize his wife to accept service of process on his behalf or for his company. 16} The record here contains signed, certified mail return receipts addressed to Mamay's usual place of residence, 544 Cumberland Drive, Whitehall, Ohio, which was also the address listed for All Transportation Solution's statutory agent.


        (Message over 64 KB, truncated)

      Your message has been successfully submitted and would be delivered to recipients shortly.