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Right to Contract and Void Judgments
 
 
 

Date: Mon, 12 Dec 2005 20:42:38 -0500
From: "Ken Wiggins" <wiggins_k@hotmail.com>
Subject: Right to Contract

Time for issue number three: Right to Contract.

Note that I keep referring to Void Judgment. Its a powerful tool. It is any judgment that was made where the court lacked jurisdiction OR was induced by fraud OR it violated due process. It is not necessary to prove all three components - any one of the three creates a Void Judgment.

A void judgment which includes judgment entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent power to enter the particular judgment, or an order procured by fraud, can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court. See Long v. Shorebank Development Corp., 182 F.3d 548 (C.A. 7 Ill. 1999) Void judgment is one where court lacked personal or subject matter jurisdiction or entry of order violated due process, U.S.C.A. Const. Amend. 5-Triad Energy Corp. v. McNell, 110 F.R.D. 382 (S.D.N.Y. 1986).

A Void Judgment may be "attacked in any court at any time", and thus may be used to overcome "timely response" and/or "timely filing. Thus it has no statute of limitations, and may be asserted at the local level ... on up.

=============================================

Right To Contract and Not Contract / Unconscionable Contract/ Void Judgment

15) Federal Constitutional law, Article 1 Section 10, is clear in stating
that the Petitioner has the "right to contract", which includes the right to "not contract." Here, the State seems to claim that it can both "create a contract" and also bind the Petitioner to it, without the permission or conscionable agreement of the Petitioner. The State openly impairs the Petitioner's right to contract.

16) The State is mandating multiple unconscionable contracts and violates multiple contractual obligations secured under "Obligations of Contracts" under Article I, Section 10, of the U.S. Constitution. For example: the right of a fit parent to contract with and for his child, Child Support - a concept foreign to the Common Law - is a 'Special Obligation' that is void of any quid pro quo or reciprocal arrangement, the State's agenda now provides incentives to women to unilaterally receive tax-free income in excess of the amounts needed for the support of the necessities of the child. This socialist "Best Interest" doctrine violates freedom to contract by predetermining that an innocent person will suffer punishment, contrary to the rule of Common Law. The State impairs the obligation of this right to contract by inserting itself into the proceedings by claiming superior title to the children and provides remedy to one gender only. The State asserts that the innocent person suffers such punishment, absent of some finding of "fault", whereas, in context, it is most normally the party with the "unclean hands", the mother, who filed for the divorce, commonly kidnapping the children, often filing false abuse charges or promoting parental alienation.

17) The claim is fraudulent in Common Law and fully in violation of Petitioner's Natural Constitutional Rights. The State creates a completely "unconscionable contract", which no person in their right mind would enter, and which is totally void of "quid pro quo" redemption. This fully violates all mandates of Common Law. Any judgment founded or "induced by fraud" is the subject thereof to Void Judgment.

(34) Hale v. Henkel 201 US 43 at 89 (1906. (35) [Rights and Remedies Under U.C.C. Article 2, by Harold Greenberg, 1987, Wiley Law Publications, John Wiley & Sons, New York [ pp. 282-283])


Wiley - Webmaster for:
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A court lacks jurisdiction anytime it denies you the Bill of Rights or amendments, particularly Due Process.  I.e. most M209A's are invalid by denial of Due Process evidentiary hearings.
 
VOIDNESS is a very powerful tool, and certainly makes any judgment attackable when Due Process is denied, property taken,  no cross exam of witnesses/accusers permitted.  etc.
 
As I noted before:
The rational/explanation  of "LACK OF JURISDICTION " thus a VOID judgment  is further described in a Supreme Court  case referenced in Bass:
 
Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court's authority to deprive an accused of his life or liberty. When this *468 right is properly waived, the assistance of counsel is no longer a necessary element of the court's jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty. A court's jurisdiction at the hearing of trial may be lost 'in the course of the proceedings' due to failure to complete the court--as the Sixth Amendment requires--by providing counsel for an accused who is unable to obtain counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. [FN22] If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction **1025 to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus.  Johnson v. Zerbst   58 S.Ct. 1019  U.S. 1938.

 
Let me make a leap of faith then and suggest the same principal applies to the Fifth Amendment and Due Process. 
I.e.     No 5'th Amendment DUE PROCESS MEANS  NO JURISDICTION  per the Supreme Court interpretation of the Bill of RIghts. .
 
 
MORE:
 
 A judgement is void if it not consistent with Due Process of law. Orner v. Shalala, 30 F.3d 1307, 1308 ( C.A.10 (Colo.),1994); V.T.A., Inc. V. Airco, Inc., 597 F.2d 220, 221 (1979).  A judgment reached without due process of law is without jurisdiction and thus void. Bass v. Hoagland, 172 F. 2d 205, 209 (1949)

   Any motion for relief from a void judgment is timely regardless of when it is filed. V.T.A., Inc. V. Airco, Inc., supra @ 224 (footnote no. 9). If a judgment is void, it is a nullity from the outset and any Civ. R. 60(B) motion is therefore filed within a reasonable time. Orner v. Shalala, supra @ 1308.
 

      If voidness of judgment is found then relief from judgment is not discretionary and any order based upon that judgment is also void. V.T.A., Inc. V. Airco, Inc.,supra @ 221; Venable v. Haislip, 721 F.2d 297, 298 (1983).
Sure, you have a couple of choices to attack these orders, the appeals court, the federal court, and the Superior Court.  Personally I am writing a complaint for federal court at the moment. I will file down here.  (Its my Christmas present for my EX!!.  LOL). I plan to have some federal marshals serve it up.  I think that adds a touch of pizzazz to the service.
 
File in federal court or in Mass Superior Court as a violation of state civil  rights and/or federal civil rights.  A Null judgment can be attacked in any court at any time as I read it.  Note the Mass Civil rights laws are supposed to be more liberal than the federal laws -  I believe no state action is needed for a starter and the interpretation is also looser. 

INSTRUCTION ON FILING AGAINST A VOID ORDER:

 
File a motion for an evidentiary hearing.  You can ask for a review anytime you desire you know per part 3 of 209A. Note your civil rights and due process are being violated as well as the right for an evidentiary for due process.  This sets you up well for appeal or review by another court. 
 
I do not believe you need to file an appeal to attack the judgment as a nullity, but I would file one anyhow.  Appeals are free to file and preserve rights.  I have read cases where Appeals Judges say, "he never filed an appeal so it must have been ok with him."
 
The lack of evidentiary hearings is a time saver and the courts do not have enough hours in the year to hear all the RO's they renew.  This is why VA only has perhaps 1500 RO's a year which are likely well needed.  The rest of the false garbage never gets approved initially or renewed later.
 
The trick in Federal court is the Fed wants to throw these family court issues out and avoid them.  You have to use Catz approach on the Due Process attack.  Don't ask for a change in the judgment, just a declaratory judgment the process used was invalid.  Then any order resulting by from that process is NULL by definition. 
 
As soon as these orders start getting trashed,  the courts will have to change their approach.  The legislature will have to rethink its approach as will the feministas.  We note the SJC has several times stated evidentiary hearings  should be permitted and added to due process.  The lower courts ignore it because nothing happens.

More on Void and voidable orders

 

Twenty-two reasons to vacate void judgment

Void judgments are those rendered by a court which lacked jurisdiction, either of the subject matter or the parties. Wahl v. Round Valley Bank 38 Ariz, 411, 300 P. 955(1931), Tube City Mining & Millng Co. v. Otterson, 16 Ariz. 305, 146p 203(1914); and Millken v. Meyer, 311 U.S. 457, 61 S. CT. 339,85 L. Ed. 2d 278 (1940).

I can go into void judgments at great length with enough court case cites to make anybody's eyes glaze over but I shall refrain. Let it be said that the really big deal with subject matter jurisdiction is that it can never be presumed, never be waived, and cannot be constructed even by mutual consent of the parties. Subject matter jurisdiction is two part ; the statutory or common law authority for the court to hear the case and the appearance and testimony of a competent fact witness, in other words, sufficiency of pleadings.

Subject matter failings are usually the following:

(1) No petition in the record of the case, Brown v. VanKeuren, 340 Ill. 118,122 (1930).
(2) Defective petition filed, Same case as above.
(3) Fraud committed in the procurement of jurisdiction, Fredman Brothers Furniture v. Dept. of Revenue, 109 Ill. 2d 202, 486 N.E. 2d 893(1985)
(4)Fraud upon the court, In re Village of Willowbrook, 37 Ill, App. 3d 393(1962)
(5)a judge does not follow statutory procedure, Armstrong v. Obucino, 300 Ill 140, 143 (1921)
(6)Unlawful activity of a judge, Code of Judicial Conduct.
(7)Violation of due process, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019(193 ;Pure Oil Co. v. City of Northlake, 10 Ill.2d 241, 245, 140 N.E. 2d 289 (1956);Hallberg v Goldblatt Bros., 363 Ill 25 (1936), ( If the court exceeded it's statutory authority. Rosenstiel v. Rosenstiel, 278 F. Supp. 794 (S.D.N.Y. 1967)
(9) any acts in violation of 11 U.S.C. 362(a),IN re Garcia, 109 B.R. 335 (N.D> Illinois, 1989).
(10) Where no justiciable issue is presented to the court through proper pleadings, Ligon v. Williams, 264 Ill. App 3d 701, 637 N.E. 2d 633 (1st Dist. 1994)
(11)Where a complaint states no cognizable cause of action against that party, Charles v. Gore, 248 Ill App. 3d 441, 618 N.E. 2d 554 (1st. Dist. 1993)
(12) where any litigant was represented before a court by a person/law firm that is prohibited by law to practice law in that jurisdiction.
(13) When the judge is involved in a scheme of bribery (the Alemann cases, Bracey v Warden, U.S. Supreme Court No. 96-6133(June 9, 1997)
(14) Where a summons was not properly issued.
(15) Where service of process was not made pursuant to statute and Supreme Court Rules, Janove v. Bacon, 6 Ill. 2d 245, 249, 218 N.E. 2d 706, 708 (1953)
(16) when the rules of the Circuit court are not complied with.
(17) when the local rules of the special court are not complied with. (One Where the judge does not act impartially, Bracey v. Warden, U.S. Supreme Court No. 96-6133(June 9, 1997)
(19) where the statute is vague, People v. Williams, 638 N.E. 2d 207 (1st Dist. (1994)
(20) when proper notice is not given toall parties by the movant, Wilson v. Moore, 13 Ill. App. 3d 632, 301 N.E. 2d 39 (1st Dist. (1973)
(21) where an order/judgment is based on a void order/judgment, Austin v. Smith, 312 F 2d 337, 343(1962);English v. English, 72 Ill. App. 3d 736, 393 N.E. 2d 18 (1st Dist. 1979) or
(22) where the public policy of the State of Illinois is violated, Martin-Tregona v Roderick, 29 Ill. App. 3d 553, 331 N.E. 2d 100 (1st Dist. 1975)

And another that can and should be checked on is does the judge have a copy of his oath of office on file in his chambers? If not, he is not a judge and yes, you can go into his office and demand to see a copy of his oath of office at any time. The laws covering judges and other public officials are to be found at 5 U.S.C. 3331, 28 U.S.C. 543 and 5 U.S.C. 1983 and if the judge has not complied with all of those provisions he is not a judge but a trespasser upon the court. If he is proven a trespasser upon the court (upon the law) not one of his judgments, pronouncements or orders are valid. All are null and void.

In all, there are 22 indices which tell us whether or not a court had subject matter jurisdiction and when examining a judgment one has to know each and every one of them by heart. If he knows them by heart he can go through a judgment like Sherman going though Georgia and point out all of the errors which might make the case a void judgment, null and void upon it's face.