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Sent in answer to prev. msg-- To complete foreclosure - is the original Note required? You be the judge...

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  • T M
    Someone sent this to me as a solution to my many questions. Don t know which question specifically it addresses, but I m veryskeptical when it comes to
    Message 1 of 1 , Dec 28, 2004
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      Someone sent this to me as a 'solution' to my many questions.  Don't know which question specifically it addresses, but I'm very skeptical when it comes to Cornforth.  This is out of Cornforth's Voids book.  Has anyone actually used this and won?  In Colorado or anywhere?  -TM
      --------------

      TO COMPLETE FORECLOSURE, IS THE ORIGINAL NOTE REQUIRED?

      YOU BE THE JUDGE

      Where the complaining party can not prove the existence of the note, then there is no note. To recover on a promissory note, the plaintiff must prove: (1) the existence of the note in question; (2) that the party sued signed the note; (3) that the plaintiff is the owner or holder of the note; and (4) that a certain balance is due and owing on the note. See In Re: SMS Financial LLc. v. Abco Homes, Inc. No.98-50117 February 18, 1999 (5th Circuit Court of Appeals.) Volume 29 of the New Jersey Practice Series, Chapter 10 Section 123, page 566, emphatically states, �...; and no part payments should be made on the bond or note unless the person to whom payment is made is able to produce the bond or note and the part payments are endorsed thereon. It would seem that the mortgagor would normally have a Common law right to demand production or surrender of the bond or note and mortgage, as the case may be. See Restatement, Contracts S 170(3), (4) (1932); C.J.S. Mortgages S 469 in Carnegie Bank v Shalleck 256 N.J. Super 23 (App. Div 1992), the Appellate Division held, �When the underlying mortgage is evidenced by an instrument meeting the criteria for negotiability set forth in N.J.S. 12A:3-104, the holder of the instrument shall be afforded all the rights and protections provided a holder in due course pursuant to N.J.S. 12A:3-302" Since no one is able to produce the �instrument� there is no competent evidence before the Court that any party is the holder of the alleged note or the true holder in due course. New Jersey common law dictates that the plaintiff prove the existence of the alleged note in question, prove that the party sued signed the alleged note, prove that the plaintiff is the owner and holder of the alleged note, and prove that certain balance is due and owing on any alleged note. Federal Circuit Courts have ruled that the only way to prove the perfection of any security is by actual possession of the security. See Matter of Staff Mortg. & Inv. Corp., 550 F.2d 1228 (9th Cir 1977), �Under the Uniform Commercial Code, the only notice sufficient to inform all interested parties that a security interest in instruments has been perfected is actual possession by the secured party, his agent or bailee.� Bankruptcy Courts have followed the Uniform Commercial Code.In Re Investors & Lenders, Ltd. 165 B.R. 389 (Bkrtcy.D.N.J.1994), �Under the New Jersey Uniform Commercial Code (NJUCC), promissory note is �instrument,� security interest in which must be perfected by possession ...� Unequivocally the Court�s rule is that in order to prove the �instrument�, possession is mandatory.


      ARE ALL CONTRACTS ASSIGNALBE? WHAT ABOUT CONTRACTS THAT �DIE WITH THE INDIVIDUAL� OR GO TO A QUESTION OF THE CREDIT OF THE PARTIES? YOU BE THE JUDGE.


      As a general rule, all contracts are assignable . . . . An exception to this rule is that a contract that relies on the personal trust, confidence, skill, character or {credit} of the parties, may not be assigned without the consent of the parties.� See Crim Truck & Tractor Co. v. Navistar Int�l 823 S.W.2d 591, 596 (Tex. 1992). See also Southern Community Gas Co. v. Houston Natural Gas Corp., 197 S.W. 2d 488, 489-90 (Tex.Civ.App. � San Antonio 1946, writ ref�d n.r.e.), and Moore v. Mohon, 514 S.W. 2d 508, 513 (TexCiv. App. � Waco 1974, no writ). Most rights under contracts are assignable. 2 R.C.L. 598. The exception is where rights are coupled with liabilities, with contracts for personal services or with contracts involving personal confidence. Fire insurance contracts are within the class last mentioned, and are held not to be assignable because of the confidence reposed by the insurer in the owner of the property. Thus, the owner may not sell the property and transfer the policy to the purchaser along with the title; for the insurer has not agreed to insure the property in the hands of the purchaser nor to assume the hazard involved in his ownership and possession. On the other hand, an assignment, not of the policy itself with its obligations, but of the owner's rights thereunder by way of pledge or otherwise as security for a debt, is held valid, in the absence of express restriction to the contrary; and the reason for this distinction is that such pledge or assignment does not affect the personal relationship, i.e., the ownership of the property by the insured, upon the faith of which the policy has been issued. Cooley's Briefs on Insurance (2d Ed.) vol. 2, pp. 1768, 1769; Ellis v. Kreutzinger, 27 Mo. 311, 72 Am.Dec. 270; True v. Manhattan Fire Ins. Co. (C.C.) 26 F. 83; Stokes v. Liverpool & London & Globe Ins. Co., 130 S.C. 521, 126 S.E. 649. Such rights could only have arisen in Deutsche from a direct guaranty made by the Mauricios to Deutsche, or by assignment from someone to whom a guaranty had been made that was legally assignable. There is no claim of a direct guaranty to Deutsche, so any rights it had could only have arisen from a legally valid assignment by Centron or Security Marine of the Mauricios' guaranties to them. The district court concluded that such rights had been validly assigned. We disagree. Under Maryland law, neither of the assignments made by Centron to Deutsche in respect of Chesapeake's indebtednesses was effective to assign any guaranty rights against the Mauricios respecting the note secured by the fifty-foot yacht. Whether a particular assignment is effective to assign a guaranty respecting a particular debt depends on two things: (1) whether the assignment in terms covers the guaranty, and (2) whether the guaranty is a legally assignable one. Deutsche relies on two assignments as the source of its right to recover from the Mauricios as guarantors of the note securing the fifty-foot yacht: (1) Centron's July 31, 1990 assignment to Deutsche and (2) Centron's October 1, 1990 assignment to Deutsche simultaneously with Security Marine's assignment to Centron, of their respective "rights, titles, and interests" in Chesapeake's indebtednesses. Looking first to Centron's July 31, 1990 assignment, we conclude that, even if it could be interpreted as intended to include the Mauricio guaranty to Centron, the guaranty was not legally assignable. While, as indicated in Part II.A., an assignment of debt carries with it an assignment of any guaranty of that debt, this does not mean that a guaranty may be assigned independently of any underlying debt. The general rule is, in fact, to the contrary where the guaranty is "special," i.e., made only to particular potential lender or lenders. As expressed in black-letter form: If a guaranty covers future credit which is to be extended by a specific individual, it may not be transferred to another person so as to enable him to become the creditor who is secured by the guaranty. 38 Am. Jur. 2d Guaranty � 35. The Centron guaranty is such an instrument. It specifies that it is made "to induce . . . Centron Financial Services, Inc. to make loans and in consideration of loans heretofore and hereafter made by [Centron] to Chesapeake." JA 36. Further, it promises "prompt and punctual payment . . . of any and all present and future indebtedness . . . of [Chesapeake] to you," i.e. Centron. Id. (emphasis added). The guaranty does contemplate that once Centron extended credit to Chesapeake, Centron might assign the debt, for the guaranty was for payment to Centron, "its successors and assigns." Id. The guaranty nowhere includes, however, a promise to pay debts arising between Chesapeake and anyone other than Centron. Under the general rule, therefore, the Centron guaranty, covering only credit extended by Centron, could not be assigned by Centron so as to enable Deutsche to become a creditor secured by the guaranty. We are satisfied that Maryland courts would so hold, though on a basis more explanatory of the actual reason for non-assignability of guaranties independently of consummated debt. Maryland law properly treats guaranties of future debt as simply a species of "continuing" or "standing" offers to make a series of individual, unilateral contracts. See Weil v. Free State Oil Co., 200 Md. 62, 87 A.2d 826, 830 (Md. 1956). Under general contract law principles, such offers are accepted by the extension of credit by the offeree. See id. ("to be accepted from time to time by [credit extension]"). See generally Restatement (Second) of Contracts � 31, cmt. b (1981) ("continuing guaranty" constitutes a "standard example of a divisible offer to make a series of contracts"). And, until such a continuing offer is accepted, it remains only an offer of contract which, as with contract offers in general, is not assignable. See Routzahn v. Cromer, 220 Md. 65, 150 A.2d 912, 915 (Md. 1959) ("an offer made to one person cannot be accepted by another"); Restatement (Second) of Contracts � 52 ("an offer can be accepted only by a person whom it invites to furnish consideration"); 38 Am. Jur. 2d Guaranty � 35 ("offer of guaranty is, in and of itself, not assignable").

      A note void in the hands of the payee, because obtained by him of the maker by fraud, is collectible in the hands of a subsequent bona fide holder who has taken it before maturity for value; but if such holder has paid on such transfer a less sum than the amount of the note, he can only recover the amount which he, or some prior holder through whom he derives title, has paid for it. HOLCOMB v. WYCKOFF. 1870 WL 5231 (N.J. Sup.).







      PHONE SCRIPTS TO USE WITH THIRD PARTY COLLECTORS

      Commentary on the morality of debt: We believe that if we owe, we should repay. The fallacy is that we rarely owe when a collector calls. The following phone scripts are not mean spirited when we realize that the caller is trying to get us to pay money that we don�t owe!


      In spite of caller id or other screening, if a collector calls you,


      Thank you for calling. May I have your full name please? Thank you. Please spell your full name for me. Now, (their name) what is your social security number? (after listening to their protest say) I just need to have your identity so I will be suing the correct person if you violate my rights under the fair debt collections practices act.

      - or -

      Thank you for calling. Do I have a contract with your company? (They�ll tell you they�re call regarding your xyz bill). That�s not my question. Do I have a contract with your company? Don�t ever call me again.

      - or -

      Thank you for calling. I was not expecting your call and I�ll need a while to look up some helpful information. Would you please hold? (Don�t wait for their answer. put the phone down and walk away).














      Your Name (print certified mail number here)

      Your address

      City, state, zip code




      the name of the person who sent you the collection letter

      their address

      city, state, zip




      Sir or Madam:


      You are in receipt of notice under the authority of The Fair Debt Collections Practices Act. Contacting me again regarding your file #XXXXXXXXXXX #OOOOOOO 000000 RMS008 after the verifiable receipt of this notice establishes that you, (their name), have used interstate communications in a scheme of fraud by using threat, intimidation, deception, and enticement to coerce a person to commit some act creating a legal disability where none exists.


      Disputing the �debt�






      Your name




      month day year



      Copies to:

      Consumer Response Center

      Federal Trade Commission

      Washington, D.C. 20580



      Jim R. Fair Sharon C. Fair

      7605 N. W. 25th Terrace

      Anytowne, Oklahoma 73000

      405-789-0000



      MIDFIRST BANK, N.A.

      ATTN: Dewey, Cheatum, & Howe

      6613 N. Meridian

      Ash Shoals, Oklahoma 73123

      (405) 720-0000

      March 12, 2002

      Re MIDFIRST BANK, N.A. ; Account NoOODISC22398

      Hello (signature is unintelligible),

      This is a request for validation. Please be advised that I am not refusing to pay, but I need the information requested in this correspondence before I can make any offer to settle this account. I would like to settle it as soon as possible and I may have a counter claim to set-off the disputed balance, this is why I am sending you these questions. Please answer the following questions relating to the disputed account and return them to me within thirty (30) days. If you need more time, or if you need any question restated, please make your request to me in writing.

      1. Please state your name, occupation and mailing address.

      2. Identify the source of the funds in the account that is the subject matter of this �judgment.�

      3. Produce all records, reports, memoranda relating to the source of funds relating this disputed account and list all other sources of information such as computer file names and names of databases or locations at which related information is located or accessible.

      4. What was the account number of the account in which the funds were held prior to the opening of the account that is the subject matter of this lawsuit?

      5. Who was the owner of each account or, list those individuals having signature rights to each account?

      6. Identify the account that was debited when the disputed account was created.

      7. Who was the owner of each account or, list those individuals having signature rights to each account?

      8. Identify the source of the funds that created the disputed account.

      9. Did the funds for the disputed account originate from another account or lending institution?

      10. List the names and addresses of all lending institutions from which any funds were purportedly originated.

      11. Please identify the account number from which the funds originated in order to create the disputed account.

      12. Admit that no other account was debited when the disputed account was created.

      13. If you denied that no other account was debited when the disputed account was opened or created, please identify the account that was debited by account number and the name or names of the debited account's signer, holder and/or owner, and explain how the funds for this account were originated.

      14. If you denied that no other account was debited when the disputed account was opened or created, state the total balance of this debited account at the time the debit was made and, list the names of the signers on the account and the date that the account was opened along with the opening balance.

      15. Admit that the defendant was the depositor for the account that is the subject matter of this lawsuit.

      16. Please produce all documents and information, related in any way, to your implication or allegation that a loan was given to the defendant.

      17. Which employee of the bank authorized the transaction?

      18. If any loan origination system, software or other procedures were used in the opening of the disputed account, please identify the system by name and describe how it works.

      19. According to the alleged loan agreement, was the purported lender or financial institution involved in the alleged loan to use their money as adequate consideration to purchase the promissory note from the alleged borrower? YES or NO.

      20. According to the bookkeeping entries, did the purported lender or financial institution involved in the alleged loan use their money as adequate consideration to purchase the promissory note from the alleged borrower? YES or NO.

      21. According to the alleged loan agreement, was the purported lender or financial institution involved in the alleged loan to accept anything of value from the alleged borrower that would be used to fund a check or similar instrument in approximately the amount of the alleged loan? YES or NO.

      22. According to the bookkeeping entries, did the purported lender or financial institution involved in the alleged loan accept anything of value from the alleged borrower that would be used to fund a check or similar instrument in approximately the amount of the alleged loan? YES or NO.

      23. Was the intent of the purported loan agreement that the party that funded the loan should be repaid the money lent? YES or NO.

      24. Did the purported lender involved in the alleged loan follow Generally Accepted Accounting Principles, GAAP? YES or NO.

      25. Were all material facts disclosed in the written agreement? YES or NO.

      26. What is the name and address of any bank auditor or certified public accountant involved with or having any relation to the accounting function regarding the disputed account?

      27. Identify the name of the records or system of accounting records or ledgers reflecting the transaction for the disputed account.

      28. Were any loan numbers assigned to the disputed account?

      29. If you answered yes to the above question, please list those account numbers.

      30. Explain how each account was created or originated.

      31. Explain how the funds for each account were deposited and where they originated.

      32. Was an account created with the purported loan amount then debited to fund the disputed account?

      33. Please explain your answer to the above question.

      34. Please produce all records and tangible evidence relating to the questions herein and send them along with your response.

      Best regards,

      Sharon C. Fair Jim R. Fair

      IN THE UNITED STATES DISTRICT COURT

      FOR THE NORTHERN DISTRICT OF OKLAHOMA 


      Robert S. Wise )

      )

      Plaintiff, )

      )

      v. ) Number ________________

      )

      William C. Killjoy )

      )

      Defendant. )



      VERIFIED PETITION IN THE NATURE OF A PETITION FOR REDRESS OF INJURIES UNDER AUTHORITY OF THE FAIR DEBT COLLECTIONS PRACTICES ACT, FOR VIOLATIONS UNDER 15 U.S.C. 1601 ET SEQ.


      1. Robert S. Wise an aggrieved party, petitions this Court under authority of 15 USC 1601 et seq. hereinafter �the act.�

      2. FIRST CAUSE OF ACTION: William S. Killjoy engaged in collection activity about May 23, 2002 without prior advising Robert S. Wise of Mr. Wise� due process rights expressly reserved at 15 USC 1692(g).

      3. SECOND CAUSE OF ACTION: Beginning about May 23, 2002, William C. Killjoy began a pattern of violating 15 USC 1692(e) my making false and misleading representations in connection with the collection of an alleged debt.

      4. THIRD CAUSE OF ACTION: Beginning about May 23, 2002, William C. Killjoy violated 15 USC 1692(f) by threatening to interfere with the business interests of Robert S. Wise where no present right to possession of the property existed as collateral through an enforceable security interest.

      5. William C. Killjoy is a debt collector. See 15 USC 1692a(6). See also George w. Heintz, et al, v Darlene Jenkins, 514 u.s. 291, 115 S.Ct. 1489 (1995).

      6. Robert S. Wise is lawfully entitled to statutory damages against William C. Killjoy up to a maximum of one thousand dollars ($1,000.00). See 15 USC 1692(a)(k). In addition to statutory damages, Robert S. Wise is lawfully entitled to unlimited damages for emotional distress, embarrassment, and humiliation caused by William C. Killjoy as a jury should decide. See 15 USC 1692k(a)(1).

      REMEDY SOUGHT

      7. Determination by this court, that Oklahoma state law, consistent with the act, affords Robert S. Wise greater protection and relief than the act justly requires the court�s instruction so to the jury.

      8. A jury�s determination that William C. Killjoy has violated consumer law justly requires this court�s order to William C. Killjoy to compensate Robert S. Wise for statutory damages not exceeding $1,000.00 plus the costs of bringing this action. A jury�s determination that William C. Killjoy subjected Robert S. Wise to life threatening emotional stress with a false claim that Robert S. Wise could be compelled to pay $523,452.00 justly requires a jury�s decision as to whether William C. Killjoy should be compelled to pay Robert S. Wise $523,452.00 as a means to amend William C. Killjoy�s bad behavior..

      JURY TRIAL DEMANDED

      I, Robert S. wise, verify under penalty of perjury that the factual averments in the above and forgoing are true to the best of my knowledge.

      ___________________________

      Robert S. Wise

      STATE OF OKLAHOMA INDIVIDUAL ACKNOWLEDGMENT

      COUNTY OF TULSA Oklahoma Form

      Before me, the undersigned, a Notary Public in and for said County and State on this ____ day of ________, 2002, personally appeared __________________________ to me known to be the identical person who executed the within and foregoing instrument and acknowledged to me that he executed the same as his free and voluntary act.

      Given under my hand and seal the day and year last above written.

      My commission expires __________

      ________________ Notary Public

      Robert S. Wise

      P.O. Box 12345

      Tulsa, Oklahoma 74000



      SECTION FOUR: Civil litigation


      When we have an injury, do we really need to patronize the bar association? If we file our own suit, what are the circumstances where we can be ruled to have filed frivolously? What is frivolous anyway? Frivolous � A pleading is �frivolous� when it is clearly insufficient on its face, and does not controvert the material points of the opposite pleading, and is presumably interposed for mere purposes of delay or to embarrass the opponent. A claim or defense is frivolous if a proponent can present no rational argument based upon the evidence or law in support of that claim or defense. Liebowitz v. Aimexco Inc., 701 P.2d 140 (Colo.App. 03/28/1985). A claim or defense is frivolous if the proponent can present no rational argument based on the evidence or law in support of that claim or defense Western United Realty, Inc. v. Isaacs, 679 P.2d 1063 (Colo. 1984); Mission Denver Co. v. Pierson, 674 P.2d 363 (Colo. 1984); International Technical Instruments, Inc. v. Engineering Measurements Co., 678 P.2d 558 (Colo. App. 1983). A complaint signed under penalty of perjury is not frivolous, McCormick v. Peterson CV93-2157, USDC, EDNY 1993.









      IN THE DISTRICT COURT OF BUTLER COUNTY


      STATE OF KANSAS


      Marvin R. Merryweather )

      )

      Plaintiff )

      )

      1. )

      )

      BLURB SERVICE, INC. )

      )

      Defendant )

      )


      PETITION IN THE NATURE OF A PETITION AND CLAIM FOR INJURY

      TO PERSONAL PROPERTY AND PERSONAL INJURY


      1. Marvin R. Merryweather, an aggrieved party, petitions this court under authority of Kansas Statute 60-513 for relief of damages caused by BLURB SERVICE, INC.

      2. FIRST CAUSE OF ACTION: Beginning in 1984, employees of BLURB SERVICE, INC. began filling a propane tank for residential use of Marvin R. Merryweather. BLURB SERVICE, INC., under contract for the installation and refilling of the tank acted negligently and in breach of duty to provide their customer Marvin R. Merryweather with safe consumption of their product. BLURB SERVICE, INC. improperly and illegally installed the required pressure regulator and emergency cutoff valve. Employees of BLURB SERVICE, INC. knew that the required pressure regulator and emergency cutoff valve which was installed by employees of BLURB SERVICE, INC. was improperly and illegally installed in violation of codes mandated by National Fire Protection Association LP-GAS CODE and other applicable controlling authority. Employees of BLURB SERVICE, INC. also, knew that regardless of whether the pressure regulator and emergency cutoff valve was improperly and illegally installed, the pressure regulator and emergency cutoff value had become obsolete. BLURB SERVICE, INC. acted negligently and in breach of duty by first improperly and illegally installing the pressure regulator and emergency cutoff valve, then continuing to fill the propane tank on the property of Marvin R. Merryweather even though they knew of the extreme hazard to life and property caused by BLURB SERVICE, INC.�s improper and illegal installation of the pressure regulator and emergency cutoff valve and knowledge that the pressure regulator and emergency cutoff value had become obsolete. February 10, 2001 the residence of Marvin R. Merryweather exploded in flames which rapidly engulfed and completely destroyed the Merryweather residence, all contents, several mature trees nearby, and appurtenances. If BLURB SERVICE, INC. had properly and legally installed the pressure regulator and emergency cutoff valve and / or properly and legally installed a replacement system after the pressure regulator and emergency cutoff valve became obsolete and / or ceased to fill the propane tank on the Marvin R. Merryweather property until a proper and lawful pressure regulator and emergency cutoff valve was installed, the terrible, horrible incident of February 10, 2001 would never have happened and Marvin R. Merryweather would not have been deprived of abode, agreeable and pleasant surroundings, and not experienced loss of enjoyment and severe obstruction of life.

      3. SECOND CAUSE OF ACTION: In a good faith effort to resolve the lawful questions of damages suffered by Marvin R. Merryweather without litigation, Marvin R. Merryweather has exhausted all other remedies. BLURB SERVICE, INC., by and through agents of BLURB SERVICE, INC., have intentionally inflicted emotional anguish to Marvin R. Merryweather severely compounding Marvin R. Merryweather�s loss of enjoyment and obstruction of life by refusing to proceed on Marvin R. Merryweather�s claims in a manner governed by the doctrine of good faith and fair dealing.

      4. THIRD CAUSE OF ACTION: A jury�s determination that the conduct and demeanor of employees and agents of BLURB SERVICE, INC. toward Marvin R. Merryweather has been scandalous and outrageous so as to shock the public conscious warrants exemplary damages. A jury�s determination that the conduct and demeanor of BLURB SERVICE, INC. was part of a pattern, warrants a jury�s fixing of exemplary damages sufficient to be instructional to BLURB SERVICE, INC., to conduct risk management training of all employees of BLURB SERVICE, INC., to protect the consuming public from the bad behavior promulgated by BLURB SERVICE, INC.



      AFFIDAVIT

      I, Marvin R. Merryweather, of legal age and competent to testy, state as follows relying on my own personal knowledge:

      1. I am not qualified as an engineer. I have no formal training sufficient to empower me to observe or even examine a pressure regulator and emergency cutoff valve and know and understand the potential hazard of how it is installed or whether it is obsolete.

      2. My home was destroyed by a gas explosion and fire on February 10, 2001. The actual or physical damages to my home, contents and surroundings exceed fifty-thousand dollars ($50,000.00). In addition to those totally tangible things upon which a reasoned value can be placed are many additional items of numismatic value which cannot be replaced.

      In addition to the physical damages, I have suffered severe emotional damage caused by the fire including sleepless nights, constant apprehension of being harmed again, depression, inconvenience, social anxiety, aggravation, and a constant, overwhelming feeling of being dehumanized.

      3. After the incident of February 10, 2001, Virgil Earp and Laverne Stinkey, both employees of BLURB SERVICE, INC., both informed me that the pressure regulator and cutoff valve on my property was not installed legally.

      4. I have made an exhaustive effort seeking just compensation for the damages of February 10, 2001 caused by a malfunctioning pressure regulator and emergency valve but have not only been denied, I have been insulted.

      5. The demeanor of those acting in a legal capacity for BLURB SERVICE, INC., has caused be to suffer additional financial, social, and emotional damage.

      6. I have severe health problems which are compounded by the demeanor of those acting in a legal capacity for BLURB SERVICE, INC.

      7. The damages which I have suffered caused by BLURB SERVICE, INC., by and through legal agents for BLURB SERVICE, INC., goes beyond any measure of economic damages; examples given, inhumane living conditions and inability to properly care for my beloved pet.



      ______________________

      Marvin R. Merryweather

      STATE OF KANSAS INDIVIDUAL ACKNOWLEDGMENT

      COUNTY OF BUTLER

      Before me, the undersigned, a Notary Public in and for said County and State on this ____ day of ________, 2002, personally appeared _________________ to me known to be the identical person who executed the within and foregoing instrument and acknowledged to me that he executed the same as his free and voluntary act.

      Given under my hand and seal the day and year last above written.

      My commission expires __________

      ________________ Notary Public



      JURY TRIAL DEMANDED


      Prepared and submitted by:


      ____________________

      Marvin R. Merryweather

      8560 N. W. Indian Road # A

      Anytown, Kansas 60000

      (316)555-00000





      Have we really failed to state a claim upon which relief can be granted? Purpose of a motion to dismiss is to test the law�s support for a claim, not the sufficiency of the underlying facts, Patel v. OMH Medical Center, Inc., Okla. 987 P.2d 1185 (1999) rehearing denied, certiorari denied 120 S.Ct. 1242, 528 U.S. 1188, 145 L.Ed. 2d 100, certiorari denied 120 S.Ct. 1242. Motion to dismiss for failure to state a claim should be denied if relief is possible under any set of facts which can be established and are consistent with the allegations, 12, O.S. 1991 �� 2012, subd B; Miller v. Miller, Okla. 956 P.2d 346 (1998). Burden to show legal insufficiency of petition is on party moving for dismissal, and motion to dismiss for failure to state a claim must separately state each omission or defect in petition; if it does not, motion shall be denied without hearing, Indiana Nat. Bank v. State Dept. of Human Services, Okla., 880 P.2d 371 (1994). If dismissal motion also tenders for consideration materials outside of pleadings, summary judgment procedure must be utilized. Bray v. Thomas Energy Systems, Inc., 909 P.2d 1191(1995). Fact is "material," for purposes of motion for summary judgment, if proof of that fact would have effect of establishing or refuting one of the essential elements of cause of action. Brown v. Oklahoma State Bank & Trust Co. of Vinita, Oklahoma., 860 P.2d 230 (1993). Unsupported contentions of material fact are not sufficient on motion for summary judgment, but rather, material facts must be supported by affidavits and other testimony and documents that would be admissible in evidence at trial. Cinco Enterprises, Inc. V. Benso, Okla., 890 P.2d 866 (1994).




      UNITED STATES OF AMERICA

      STATE OF ILLINOIS COUNTY OF DUPAGE

      IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT


      Rosalie Goodner )

      )

      Plaintiff )

      )

      vs. ) No._________

      )

      D.S.I. SERVICE MASTER )

      )

      Defendant )

      )

      PETITION IN THE NATURE OF A PETITION AND CLAIM FOR BREACH

      OF DUTY AND BAD FATH BREACH OF THE COVENANT

      OF GOOD FAITH AND FAIR DEALING

      1. D.S.I. SERVICE MASTER, hereinafter �DSI,� by and through their authorized agent, Ron Veldman, committed breach of duty and breach of the covenant of good faith and fair dealing by consuming property lawfully belonging to Rosalie Goodner and the estate of John Goodner without notice and opportunity to redeem, without inventory and valuation of the contents, and in contravention of an agreement to accept payments to consolidate what Rosalie Goodner allegedly owed DSI.

      2. DSI, by and through Ron Veldman, effectively swindled Rosalie Goodner out of highly valuable property.

      3. Circa January 5, 2000, Rosalie Goodner received a defective billing via U.S. mail. The billing statement from DSI for storage of property belonging to Rosalie Goodner failed to state payment terms.

      4. Responsive to the defective, ambiguous billing statement form DSI, Rosalie Goodner called DSI and spoke at length with Ron Veldman in an attempt to get clarification of the statement.

      5. The billing discussion included Mr. Veldman�s assertion that DSI was correctly billing on December 31, 1999, retroactively for the year of 1999.

      6. After much discussion during which Rosalie Goodner felt ingratiated to the mannerly Mr. Veldman and elaborated on the value of the contents DSI held in bailment, Rosalie Goodner and DSI, by and through Ron Veldman, agreed to the terms of Rosalie Goodner�s payments to DSI and determination of an exact date when DSI�s services would no longer be required by Rosalie Goodner.

      7. About January 6, 2000, Ron Veldman learned of Rosalie Goodner�s intent to devote a substantial portion of the highly valuable property to charitable purposes. This revelation served to enhance Ron Veldman�s knowledge of the extremely high value of the contents.

      8. February 24th, 2000, Rosalie Goodner learned that the contents entrusted to DSI had been sold on February 8th, 2000, without prior notice and opportunity to redeem and in direct breach of the payment terms Ron Veldman had negotiated on behalf of DSI.

      9. Allegedly, contents in unopened boxes were sold instantly for a sum of ten thousand four hundred dollars ($10,400.00).

      10. At all times, when dealing with Ron Veldman, Rosalie Goodner was led to believe that Ron Veldman had full, complete actual as well as apparent authority to act for and bind DSI.

      11. Rosalie Goodner is not in receipt of an inventory from DSI of her property consumed by DSI.

      12. Rosalie Goodner has been damaged financially, socially, and emotionally by the acts of DSI by and through Ron Veldman. Because the property taken included heirlooms and collectables and because of the aggravation, emotional anguish, and dehumanizing effects of the experience with DSI, Rosalie Goodner�s damages are great and incalculable.

      13. A jury�s determination that Rosalie Goodner has been wrongfully deprived of property warrants and jury�s evaluation of total damages and compelling DSI to replace the property purloined along with the costs of bringing this action.

      14. A jury�s determination that the acts of DSI were in bad faith, outrageous, and scandalous warrants exemplary damages as a jury should determine.

      15. The amount of actual damages exceeds fifty thousand dollars ($50,000.00).

      JURY TRIAL DEMANDED



      Prepared and submitted by: ________________________

      Rosalie Goodner

      57 Briarwood Lane

      Oak Brook, Illinois 60523

      (630)321-1682







      Redemptive Dominion Missions
      (Overseer: Todd Michael; Haus Von Weisser)
      Temporary Post location: 8223 South Quebec, I-138,
      From without the city-state of: Englewood [80112] Colorado,
      sojourning on Planet Earth, under the Law and Jurisdiciton
      of the Kingdom of Heaven

      Old Website: http://www.angelfire.com/sd2/rdm

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