Monthly Archives: November 2009

Indymac v. Diana Yano-Horoski (Some Judges see the Light—now how about Politicians?)

 

[*1] Indymac Bank F.S.B., Plaintiff against Diana Yano-Horoski, Wells Fargo Bank Minnesota National Association as Trustee for Soundview Home Equity Loan Trust 2001-1 and Kimberly Horoski, Defendants.
2005-17926
SUPREME COURT OF NEW YORK, SUFFOLK COUNTY
2009 NY Slip Op 52333U; 2009 N.Y. Misc. LEXIS 3136

November 19, 2009, Decided
NOTICE:

THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING THE RELEASE OF THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: mortgage, foreclosure, adjustable rate, cancelled, modification, daughter, recorded, vacated, good faith, indebtedness, principal balance, total amount, legal right, unconscionable, cancellation, credibility, settlement, equitable, greatly, reside, discharged, successors, housing, foreclosure of a mortgage, interest rate, market value, monetary sanctions, equity jurisdiction, force and effect, careful consideration

COUNSEL: [**1] For Plaintiff: Steven J. Baum P.C., Buffalo, New York.

Diana Yano-Horoski, Defendant, Pro se, East Patchogue, New York.

JUDGES: JEFFREY ARLEN SPINNER Click for Enhanced Coverage Linking Searches, J.S.C.

OPINION BY: JEFFREY ARLEN SPINNER Click for Enhanced Coverage Linking Searches

This is an action wherein the Plaintiff claims foreclosure of a mortgage dated August 4, 2004 in the original principal amount of $ 292,500.00 recorded with the Clerk of Suffolk County, New York in Liber 20826 of Mortgages at Page 285. The mortgage secures an adjustable rate note of the same amount with an initial interest rate of 10.375%. The mortgage encumbers real property commonly known as 8 Oakland Street, East Patchogue, Town of Brookhaven, New York and described as District 0200 Section 979.50 Block 05.00 Lot 001.000 on the Tax Map of Suffolk County. Plaintiff commenced this action by filing a Summons, Verified Complaint and Notice of Pendency on July 27, 2005. The Notice of Pendency was extended by Order dated April 28, 2008 and a Judgment of Foreclosure & Sale was granted on January 12, 2009.

Thereafter and in accordance with the Laws of 2008, Ch. 472, Sec. 3-a and in view of the fact that the loan at issue was deemed to be “sub-prime” or “high cost” in nature, Defendant seasonably requested  [**2] that the Court convene a settlement conference. That request was granted and a conference was commenced on February 24, 2009 which was continued five times in a series of unsuccessful attempts by the Court to obtain meaningful cooperation from Plaintiff. In view of Plaintiff’s intransigence in its continuing failure and refusal to cooperate, both with the Court and with Defendant’s multiple and reasonable requests, the Court directed that Plaintiff produce an officer of the bank at the adjourned conference scheduled for September 22, 2009.

At the conference held on September 22, 2009, Karen Dickinson, Regional Manager of  [*2] Loss Mitigation for IndyMac Mortgage Services, division of OneWest Bank F.S.B. (“IndyMac”) appeared on behalf of Plaintiff. IndyMac purports to be the servicer of the loan for the benefit of Deutsche Bank who, it is claimed, is the owner and holder of the note and mortgage (though the record holder is IndyMac Bank F.S.B., an entity which no longer is in existence). At that conference, it was celeritously made clear to the Court that Plaintiff had no good faith intention whatsoever of resolving this matter in any manner other than a complete and forcible devolution  [**3] of title from Defendant. Although IndyMac had prepared a two page document entitled “Mediation Yano-Horoski” which contained what purported to be a financial analysis, Ms. Dickinson’s affirmative statements made it abundantly clear that no form of mediation, resolution or settlement would be acceptable to Plaintiff. IndyMac asserts the total amount due it to be in excess of $ 525,000.00 and freely concedes that the property securing the loan is worth no more than $ 275,000.00. Although Ms. Dickinson insisted that Ms. Yano-Horoski had been offered a “Forbearance Agreement” in the recent past upon which she quickly defaulted, it was only after substantial prodding by the Court that Ms. Dickinson conceded, with great reluctance, that it had not been sent to Defendant until after its stated first payment due date and hence, Defendant could not have consummated it under any circumstances (Defendant, through Plaintiff’s duplicity, found herself to be in the unique and uncomfortable position of being placed in default of the “agreement” even before she had received it). Plaintiff flatly rejected an offer by Plaintiff’s daughter to purchase the house for its fair market value (a so-called “short  [**4] sale”) with third party financing. Plaintiff refused to consider a loan modification utilizing any more than 25% of the income of Plaintiff’s husband and daughter (both of whom reside in the premises with her), the excuse being that “We can’t control what non-obligors do with their money” (the logical follow up to this statement is how does the bank control what the obligor does with her money?). The Court found IndyMac’s position to be deeply troubling, especially since a plethora of sub-prime loans in this County’s Foreclosure Conference Part have been successfully modified with the lender’s reliance upon the income of non-obligors who reside in the premises under foreclosure. The Plaintiff also summarily rejected an offer by both Plaintiff’s husband and daughter to voluntarily obligate themselves for payment upon the full indebtedness, thus committing their individual incomes expressly to the purpose of a loan modification. It should be noted here that Defendant did not even request any waiver or “forgiveness” of the indebtedness aside from some tinkering with the interest rate, just a modification of terms so as to enable her to repay the same. It was evident from Ms. Dickinson’s  [**5] opprobrious demeanor and condescending attitude that no proffer by Defendant (short of consent to foreclosure and ejectment of Defendant and her family) would be acceptable to Plaintiff. Even a final and desperate offer of a deed in lieu of foreclosure was met with bland equivocation. In short, each and every proposal by Defendant, no matter how reasonable, was soundly rebuffed by Plaintiff. Viewed objectively, it is apparent that Plaintiff’s conduct in this matter falls within the definitions set forth in 22 NYCRR § 130-1.1(c)(2), which might well warrant the imposition of monetary sanctions.

On the Court’s own motion, a hearing was held on November 18, 2009 in order to explore the issues herein. At the hearing, Ms. Dickinson appeared as well as Mr. Horoski. IndyMac claimed a balance due, as of September 22, 2009 of $ 527,437.73 which included an escrow overdraft of $ 46,627.88 for taxes advanced since the date of default but did not include attorney’s fees and costs.. Plaintiff was unable to tell the Court the amount of the principal  [*3] balance owed. Mr. Horoski advised the Court that according to two letters received from Plaintiff, the principal balance was said to be $ 285,381.70  [**6] as of February 9, 2009 and $ 283,992.48 as of August 10, 2009. Plaintiff stated was that Defendant must have made payments though it was conceded that in fact no payment had been made. Plaintiff insisted that it had remained in regular contact with Defendant in an effort to reach an amicable resolution, that it had extended two modification offers to Defendant which she did not accept and further, that due to her financial status she was not qualified for any modification, even under the Federal HAMP guidelines. Plaintiff denied that it had “singled out” Defendants, simply stating that her status was such that she fell outside applicable guidelines. All of these assertions were disputed by Defendant.

That having been said, the Court is greatly disturbed by Plaintiff’s assertions of the amount claimed to be due from Defendant. The Referee’s Report dated June 30, 2008, which has its genesis in a sworn affidavit by a representative of Plaintiff (presumably one with knowledge of the account), reflects a total amount due and owing of $ 392,983.42. The principal balance is reported to be $ 290,687.85 with interest computed at the rates of 10.375% from November 1, 2005 through August 31, 2006  [**7] ($ 25,118.62), 12.50% from September 1, 2006 to February 28, 2007 ($ 18,018.66), 12.375% from March 1, 2007 to March 31, 2008 ($ 39,126.39) and 11.375% from April 1, 2008 to June 24, 2008 ($ 7,700.24) totalling $ 89,963.91. Plaintiff also claims $ 20.00 in non-sufficient funds charges, $ 295.00 in property inspection fees and $ 12,016.66 for tax and insurance advances. The Judgment of Foreclosure & Sale dated January 12, 2009 was granted in the amount of $ 392,983.42 with interest at the contract rate from June 24, 2008 through January 12, 2009 and at the statutory rate thereafter plus attorney’s fees of $ 2,300.00 and a bill of costs in the amount of $ 1,705.00. Even computing the accrual of pre-judgment interest of $ 18,299.18 (using Plaintiff’s per diem rate in the Referee’s Report) together with post-judgment interest at a statutory 9% through November 19, 2009 (an additional $ 31,740.90), the application of simple addition yields a total amount due of $ 447,028.50. This figure is $ 80,409.23 less than the $ 527,437.73 asserted by Plaintiff to be due and owing from Defendant. The Court is astounded that Plaintiff now claims to be owed an escrow advance amount of $ 46,627.88 when,  [**8] under oath, its officer swore that as of June 24, 2008 that amount was actually $ 34,611.22 less. Moreover, it now appears that the elusive principal balance is either $ 290,687.85, $ 285,381.70 or $ 283,992.48.

It is the province and indeed the obligation of the trial court to assess and to determine issues regarding credibility, Morgan v. McCaffrey ,14 AD3d 670, 789 N.Y.S.2d 274 (2nd Dept. 2005). In the matter before the Court, the pendulum of credibility swings heavily in favor of Defendant. When the conduct of Plaintiff in this proceeding is viewed in its entirety, it compels the Court to invoke the ancient and venerable principle of “Falsus in uno, falsus in omni” (Latin; “false in one, false in all”) upon Defendant which, after review, is wholly appropriate in the context presented, Deering v. Metcalf 74 NY 501 (1878). Regrettably, the Court has been unable to find even so much as a scintilla of good faith on the part of Plaintiff. Plaintiff comes before this Court with unclean hands yet has the insufferable temerity to demand equitable relief against Defendant.

The Court, over the course of some six substantive appearances in seven months, has been afforded more than ample opportunity to assess  [**9] the demeanor, credibility and general state  [*4] of relevant affairs of Defendant and Plaintiff. Although not actually relevant to the disposition of this matter, the Court is constrained to note that Defendant is afflicted with multiple health problems which outwardly manifest in her experiencing great difficulty in ambulation, necessitating the use of mechanical supports. Moreover, Defendant’s husband, Mr. Gregory Horoski, suffers from a myriad of serious medical conditions which greatly impede most aspects of his daily existence. Nonetheless, both of these persons, together with their adult daughter who resides with them and who is substantially and gainfully employed, receive income which they are more than willing to commit, in good faith, toward repayment of the debt to Plaintiff and indeed, despite their physical challenges, they have appeared at each and every scheduled conference before this Court. At each appearance, they have assiduously attempted to resolve this controversy in an amicable fashion, only to be callously and arbitrarily turned away by Plaintiff. This has been so even in spite of the Court’s continuing albeit futile endeavors at brokering a settlement.

As a relevant  [**10] aside, the scenario presented here raises the specter of a much greater social problem, that of housing those persons whose homes are foreclosed and who are thereafter dispossessed. It is certainly no secret that Suffolk County is in the yawning abyss of a deep mortgage and housing crisis with foreclosure filings at a record high rate and a corresponding paucity of emergency housing. While foreclosure and its attendant eviction are clearly the inevitable (and in some cases, proper) result in a number of these situations, the Court is persuaded that this need not be the case here. In this matter, Defendant is plainly willing to make arrangements for repayment and both her husband and daughter are likewise willing to allocate their respective incomes in order to reach the same end. Were Plaintiff amenable, she would presumably continue to maintain the property’s physical plant, pay taxes thereon and the property would retain or perhaps increase its market value. Plaintiff would receive a regular income stream, albeit with a reduced rate of interest and without sustaining a loss of several hundred thousand dollars. In addition, no neighborhood blight would occur from the boarding of the  [**11] property after foreclosure which would, in turn, avert problems of litter, dumping, vagrancy and vandalism as well as a corresponding decline in the property values in the immediate area. In short, a loan modification would result in a proverbial “win-win” for all parties involved. To do otherwise would result in virtually certain undomiciled status for two physically unhealthy persons and their daughter, leading to an additional level of problems, both for them and for society.

Since an action claiming foreclosure of a mortgage is one sounding in equity, Jamaica Savings Bank v. M.S. Investing Co., 274 NY 215, 8 N.E.2d 493 (1937), the very commencement of the action by Plaintiff invokes the Court’s equity jurisdiction. While it must be noted that the formal distinctions between an action at law and a suit in equity have long since been abolished in New York (see CPLR 103, Field Code Of 1848 §§ 2, 3, 4, 69), the Supreme Court nevertheless has equity jurisdiction and distinct rules regarding equity are still extant, Carroll v. Bullock, 207 NY 567, 101 NE 438 (1913). Speaking generally and broadly, it is settled law that “Stability of contract obligations must not be undermined by judicial sympathy…” Graf v. Hope Building Corporation 254 NY 1, 171 N.E. 884 (1930).  [**12] However, it is true with equal force and effect that equity must not and cannot slavishly and blindly follow the law, Hedges v. Dixon County, 150 U.S. 182, 192, 14 S. Ct. 71, 37 L. Ed. 1044 (1893). Moreover, as succinctly decreed by our Court of Appeals in the matter of Noyes v. Anderson, 124 NY 175, 26 N.E. 316 (1890) [*5] “A party having a legal right shall not be permitted to avail himself of it for the purposes of injustice or oppression…” 124 NY at 179.

In the matter of Eastman Kodak Co. v. Schwartz 133 NYS2d 908 (Sup. Ct., New York County, 1954), Special Term stated that “The maxim of “clean hands” fundamentally was conceived in equity jurisprudence to refuse to lend its aid in any manner to one seeking its active interposition who has been guilty of unlawful, unconscionable or inequitable conduct in the matter with relation to which he seeks relief.” 133 NYS2d at 925, citing First Trust & Savings Bank v. Iowa-Wisconsin Bridge Co. 98 F 2d 416 (8th Cir. 1938), cert. denied 305 U.S. 650, 59 S. Ct. 243, 83 L. Ed. 420 (1938), reh. denied 305 U.S. 676, 59 S. Ct. 356 83 L. Ed. 437 (1939)General Excavator Co. v. Keystone Driller Co. 64 F.2d 39 (6th Cir. 1933), cert. granted 289 U.S. 721, 298 U.S. 721, 53 S. Ct. 791, 77 L. Ed. 1472 (1933), aff’d  [**13] 290 U.S. 240, 54 S. Ct. 146, 78 L. Ed. 293, 1934 Dec. Comm’r Pat. 639 (1934).

In attempting to arrive at a determination as to whether or not equity should properly intervene in this matter so as to permit foreclosure of the mortgage, the Court is required to look at the situation in toto, giving due and careful consideration as to whether the remedy sought by Plaintiff would be repugnant to the public interest when seen from the point of view of public morality, see, for example, 55 NY Jur. Equity § 113Molinas v. Podoloff 133 N.Y.S.2d 743 (Sup. Ct., New York County, 1954). Equitable relief will not lie in favor of one who acts in a manner which is shocking to the conscience, Duggan v. Platz, 238 AD 197, 264 NYS 403 (3rd Dept. 1933), mod. on other grounds 263 NY 505, 189 NE 566 (1934), neither will equity be available to one who acts in a manner that is oppressive or unjust or whose conduct is sufficiently egregious so as to prohibit the party from asserting its legal rights against a defaulting adversary, In re Foreclosure of Tax Liens,117 NYS2d 725 (Sup. Ct. Kings County, 1952), aff’d on other grounds 286 A.D. 1027, 145 N.Y.S.2d 97 (2nd Dept. 1955), mod. on other grounds on reargument 1 AD2d 95, 148 NYS2d 173 (2nd Dept. 1955),  [**14] appeal granted 1 A.D.2d 784, 149 N.Y.S.2d 227 (2nd Dept. 1956). The compass by which the questioned conduct must be measured is a moral one and the acts complained of (those that are sufficient so as to prevent equity’s intervention) need not be criminal nor actionable at law but must merely be willful and unconscionable or be of such a nature that honest and fair minded folk would roundly denounce such actions as being morally and ethically wrong, Pecorella v. Greater Buffalo Press Inc., 107 A.D.2d 1064, 486 N.Y.S.2d 562 (4th Dept. 1985). Thus, where a party acts in a manner that is offensive to good conscience and justice, he will be completely without recourse in a court of equity, regardless of what his legal rights may be, Eastman Kodak Co. v. Schwartz 133 NYS2d 908 (Sup. Ct., New York County, 1954)York v. Searles 97 AD 331, 90 NYS 37 (2nd Dept. 1904), aff’d 189 NY 573, 82 NE 1134 (1907).

An objective and painstaking examination of the totality of the facts and circumstances herein leads this Court to the inescapable conclusion that the affirmative conduct exhibited by Plaintiff at least since February 24, 2009 (and perhaps earlier) has been and is inequitable, unconscionable, vexatious [**15] and opprobrious. The Court is constrained, solely as a result of Plaintiff’s affirmative acts, to conclude that Plaintiff’s conduct is wholly unsupportable at law or in equity, greatly egregious and so completely devoid of good faith that equity cannot be permitted to intervene on its behalf. Indeed, Plaintiff’s actions toward Defendant in this matter have been harsh, repugnant, shocking and repulsive to the extent that it must be appropriately [*6] sanctioned so as to deter it from imposing further mortifying abuse against Defendant. The Court cannot be assured that Plaintiff will not repeat this course of conduct if this action is merely dismissed and hence, dismissal standing alone is not a reasonable option. Likewise, the imposition of monetary sanctions under 22 NYCRR § 130-1.1 et. seq. is not likely to have a salubrious or remedial effect on these proceedings and certainly would not inure to Defendant’s benefit. This Court is of the opinion that cancellation of the indebtedness and discharge of the mortgage, when taken together, constitute the appropriate equitable disposition under the unique facts and circumstances presented herein.

After careful consideration, it is the determination  [**16] of this Court that the indebtedness evidenced by the Adjustable Rate Note dated August 4, 2004 in the original principal amount of $ 292,500.00 made by Diana J. Yano-Horoski in favor of IndyMac Bank F.S.B. should be cancelled, voided and set aside. In addition, the Mortgage which secures the Adjustable Rate Note, given to Mortgage Electronic Registration Systems Inc. As Nominee For IndyMac Bank F.S.B. dated August 4, 2004 and recorded with the Clerk of Suffolk County on August 16, 2004 in Liber 20826 of Mortgages at Page 285, as assigned by Assignment recorded with the Clerk of Suffolk County in Liber 21273 of Mortgages at Page 808 should be cancelled and discharged of record. Further, Plaintiff, its successors and assigns should be forever barred and prohibited from any action to collect upon the Adjustable Rate Note. In addition, the Judgment of Foreclosure & Sale granted on January 12, 2009 and entered on January 23, 2009 should be vacated and set aside and the Notice of Pendency should be cancelled and discharged of record. For this Court to decree anything less than the foregoing would be for the Court to be wholly derelict in the performance of its obligations.

Upon the Court’s  [**17] own motion, it is

ORDERED that the Adjustable Rate Note in the amount of $ 292,500.00 dated August 4, 2004 made by Diana J. Yano-Horoski in favor of IndyMac Bank F.S.B. shall be and the same is hereby cancelled, voided, avoided, nullified, set aside and is of no further force and effect; and it is further

ORDERED that the Mortgage in the amount of $ 292,500.00 which secures said Adjustable Rate Note given by Diana J. Yano-Horoski to Mortgage Electronic Registration Systems Inc. As Nominee For IndyMac Bank F.S.B. dated August 4, 2004 and recorded with the Clerk of Suffolk County on August 16, 2004 in Liber 20826 of Mortgages as Page 285, as assigned to IndyMac Bank F.S.B. by Assignment recorded with the Clerk of Suffolk County in Liber 21273 of Mortgages at Page 808 shall be and the same is hereby vacated, cancelled, released and discharged of record; and it is further

ORDERED that the Plaintiff, its successors and assigns are hereby barred, prohibited and foreclosed from attempting, in any manner, directly or indirectly, to enforce any provision of the  [*7] aforesaid Adjustable Rate Note and Mortgage or any portion thereof as against Defendant, her heirs or successors; and it is further

ORDERED  [**18] that the Judgment of Foreclosure & Sale granted under this index number on January 12, 2009 and entered in the Office of the Clerk of Suffolk County on January 23, 2009 shall be and the same is hereby vacated and set aside; and it is further

ORDERED that the Notice of Pendency filed with the Clerk of Suffolk County on July 27, 2005 under sequence no. 172456, which was extended by Order dated September 2, 2008 shall be and the same is hereby cancelled, vacated and set aside; and it is further

ORDERED that the Notice of Pendency filed with the Clerk of Suffolk County on August 29, 2008 under sequence no. 199616, shall be and the same is hereby cancelled, vacated and set aside; and it is further

ORDERED that the Clerk of Suffolk County shall cause a copy of this Order & Judgment to be filed in the Land Records so as to effectuate of record each and every one of the provisions hereinabove set forth with respect to cancellation of the instruments and items of record; and it is further

ORDERED that Plaintiff shall pay to the Clerk of Suffolk County, within ten (10) days from the date of entry hereof, any and all fees and costs required to effect cancellation of record of the Mortgage, Notices  [**19] of Pendency and any other fees so levied; and it is further

ORDERED that within ten (10) days of the date of entry hereof, Plaintiff’s counsel shall serve a copy of this Order upon the Clerk of Suffolk County and the Defendant.

This shall constitute the Decision, Judgment and Order of this Court.

Dated: November 19, 2009 Riverhead, New York ENTER:   JEFFREY ARLEN SPINNER Click for Enhanced Coverage Linking Searches, J.S.C.

 

Exploring the Writ of Quo Warranto, Ninth Amendment (Legacy of Barnett v. Obama)

Before Dr. Orly Taitz and I parted company on November 4, 2009, we were discussing the possibility of filing a Petition for Writ of Quo Warranto in the District of Columbia.  There are many reasons why such a Petition should be tried, but laying the groundwork for invalidating Barack Obama’s actions as President is the primary one.  The proposed Copenhagen climate accords and treaty could well be, as Lord Monckton and many others have suggested, the death knell of national identity and freedom in America, and with America goes the rest of the world.  As a good friend writes from Texas,

America is a nation of Koolaid drinking fools and morons.  Republicans rejected Ron Paul and the Constitution.  That tells me that the GOP base is just as delusional as the Democratic base.  Americans consistently vote away their liberty to any socialist or statist, regardless of political party.  They are so morally and intellectually weak that they have totally succumbed to enslavement and a police state.  At least Obama is waking up the living dead.  In that respect, his election was a wake-up call for those among us who even care.

I don’t know about the “Koolaid drinking” element of this generalization, but it is very true that the slide into ignominy is moving very quickly in this Country. I support anyone who is willing to pursue quo warranto in rational, carefully thought out, and well-planned constitutional litigation.  The writ of quo warranto in the hands of the people is or should be, as the papers drafted in Barnett v. Obama advocated, critical to the maintenance of democracy in the United States.  Dr. Orly Taitz has shown that she is unwilling and unable to do what is necessary.  Who will stand up to the plate and hit the ball? Plaintiffs’ Sur-Reply 10-01-09; Flast v Cohen Doc 69 Response to Motion to Dismiss 09-21-09.doc”

Why Tierra Limpia and Deo Vindice Supported Constitutional Eligibility Litigation

The Tierra Limpia Trust and Deo Vindice exist to advocate and support the restoration of an economy based on hard capital investment and productivity rather than soft credit debt and monetary inflation.

In the last quarter of the 20th century, after two full centuries of incredible economic and political achievement, the United States of America effectively died as an Industrial power and ceased producing new wealth.  The successive monetary policies of the Carter, Reagan, Bush, Clinton, Bush, and Obama administrations have sought to camouflage this reality by replacing productivity with inflationary extensions of ersatz credit, based on nothing more than the “full faith and credit” of the United States government.  It is a tribute to the prestige accumulated by American Government and Industry over the previous two centuries that the “full faith and credit” cushioned the American people from the massive exportation of  U.S. productivity to Japan, Korea, China, India, and to a lesser degree, Latin America, but the effective financial “pyramid” or Ponzi scheme was doomed to failure.

That failure finally crystallized and became embedded in cement during the administration of George W. Bush, when one final explosion of inflationary credit fueled one final decade of consumerist splurging based on one sole economic indicator alone: home constructions and home sales.  Previously underdeveloped areas from the Florida Gulf Coast along the US 19-US 90 Corridors from Naples and Pinellas (St. Petersburg) to Pensacola, to every last unconstructed acre of Orange, Riverside, San Diego, and San Bernardino Counties in California and Colin, Montgomery, and Williamson Counties in Texas were filled by 2005-2006 with excess construction of apartment complexes, modest homes, and even mass produced “McMansions”—the demand for which was only created by extensions of credit unthinkable in a stable or governmentally unsubsidized “free capitalistic” economy.  There was no new American capital except for credit, and the home construction boom of the first decade of the new millennium was farcical for its transparent pointlessness.  The politicians and bankers simply sought to pad a few more “fat” years onto the lean and muscular monuments of American achievement, the machinery of which ground to a halt just in time for the bicentennial.

One of the inventions of the last quarter of the 20th century was the derivative security, which permitted investment bankers and stockbrokers to continue peddling stocks and bonds to the drunken, gambling, “casino” society of the 1980s and ‘90s, and thus permitted the Dow Jones Industrial Average and NASDAQ to continue to rise when new issues based on new industrial innovation or productive strategies of any kind were simply unthinkable.

The cynic would say that capitalism had reached its apogee, and the only “innovators” were those last capitalists whom Lenin had predicted would sell the rope to the communists with which to hang the last capitalists.  And those “last capitalists” were the investment bankers and lawyers who formulated the derivatives, whose purpose was, essentially, to act as the noose around the neck of capitalism which would strangle private property and bourgeois freedom, and snap the neck of all the productive energy or initiative that remained in the American population.

So derivative securities were invented to convert ersatz credit into asset-backed securities—reclassifying debt with majestic Orwellian inverted newspeak as wealth, and denigrating all capital accumulations as takeover targets to be leveraged and “bought out.”  Excessive credit would rapidly absorb all remaining equity in the bankrupt capitalist world, and communism or some state-controlled form of corporate socialism would emerge from the wreckage.  That is the world we live in now.

When first introduced to her, after learning of her one-woman crusade, we supported the efforts of Dr. Orly Taitz to void the election of 2008 as procured by fraud and the inauguration of January 20, 2009, as carried out under false pretenses. Because this political position may have at first appeared to some to have nothing to do with our primary mission of restoring integrity to the financial system, and in the process saving people’s homes and property from wrongful foreclosure, a few words of explanation at this time would appear to be necessary.

Anyone who knows the history of the words “Deo Vindice” know that no nation can long survive on credit unsupported by commercial viable production of capital, but at this point in history, the United States has been operating without any net production of capital for at least thirty years.
Deo Vindice and the Tierra Limpia Trust exist to advance and support the proposition that hard capital monetary policy stands as the rock solid foundation of freedom and liberty on the one hand, and the rational guarantor of justice and fairness on the other. We believe that many artificial differences between left and right in this country would be erased by the “old time religion” of genuine capitalism based on production of wealth rather than pure consumption. In fact, all good things flow from rational economics, and rational economics can only arise in a productive environment. For example, many on the so-called “left” believe that we are destroying the economy by reckless, irresponsible growth and use of resources.
Restoration of a substantive-based economy released from formal (and in fact governmentally monopolistic/despotic) restraints on creation of “money” and “creditworthiness” [based in large part on contributions of income to Social Security and through the income tax] will curb irrational growth based on frivolous extensions of credit for environmentally unsound projects. If we restore responsibility and self-reliance—people will not use their land or resources wastefully. There will be fewer or no cancerous growths of cardboard-cracker-box communities in Florida or Southeast-Texas & Louisiana swamps, North, Central, and West Texas grasslands, and the deserts of California, Arizona, and Nevada if there are no idiotic extensions of credit to “develop” them—and indeed, most recent economic “growth” and “business activity” in the U.S. can be traced to irresponsible building in such environmentally disadvantaged places. Hard money capitalists do not waste their hard capital—they do the best “cost-benefit” analyses possible and build and develop only where they can maximize the natural advantage of population and landscape. It is the U.S. Government which has fomented all these potentially disastrous, wasteful, and indeed ecologically unsound economic growth spurts in bad places—which are “bad” in so many different ways.
And it was for all these reasons of opposing economic recklessness spurred on by “incentive-based socialism” that Deo Vindice and Tierra Limpia briefly joined together with Dr. Orly Taitz and her “Defend our Freedoms Foundation” to attempt to remove, if we could, the de facto President Barack Hussein Obama.
Senator Barack Obama, even during the campaign of 2008, advocated the creation of an “Urban Development Bank” and it was at that moment that I knew this man was a terrible threat to the country.
Since taking office, the de facto President has accelerated spending to an incredible/unbelievable degree. This level of governmental interference and involvement in the economy has simply reached intolerable levels, barely six months after the inauguration of the “Brave New World” on January 20, 2009.
Dr. Orly Taitz, as an attorney, and her “Defend our Freedoms Foundation” appeared to want to take the lead in the fight against Obama. Orly sought my assistance and I, since late May/early June 2009, committed myself and the resources of Tierra Limpia/Deo Vindice to Orly’s crusade against the illegitimate and unconstitutional Presidency of Barack Obama, and Orly promised  in turn expressly committed her status and standing as well her amazing courtroom presence and presentation to the cause of mortgage redemption and property vindication.  We have now parted ways because Dr. Orly Taitz has reneged on her promises, and has in fact turned against us.  The reasons for this sad turn of events are multifarious and complex, more personal than really political, and reflect the tragedy of human life that we are “human, all too human.”  But Dr. Taitz has revealed some very strange and negative personality traits in her handling of all this—an irrational and vengeful side of herself which I suppose I saw all along, but in my infatuation with her qualities, willfully chose to ignore.  Orly Taitz’ energy is a great asset, but she has neither the common sense nor the education nor the professional skills nor the self-discipline to make a major political or legal crusade work.

None of this actually changes the reality of why I believed in her, and why I continue to believe in the goals that we worked for.  I would still like to find a backer willing to implement my own strategies of litigation against the de facto President, which would doubtless involve turning towards Washington D.C., and a Petition for Writ of Quo Warranto in the District of Columbia, as Leo Donofrio has consistently advocated, and as Orly and I discussed before our final “separation” on Wednesday, November 4, 2009, a perfidious day which will live in infamy along with December 7, 1941, at least in my own life and mind.
None of my basic purposes or programs have changed: I urge every reader to continually study and try to understand the complex relationship between politics, political-monetary policy and the current mortgage crisis. Current “soft credit” monetary policy is socialistic and therefore utterly incompatible with the traditional “Common Law” foundations of the economy in which “Fiat Money” (money created, just as God created light at the beginning of time [compare Genesis I in Jerome’s Vulgate Bible “Fiat Lux“], from nothing). Barack Obama is the extremist of all extremists in the soft-money credit department.
Obama’s administration is struggling to uphold the rot of the soft-credit economy he inherited from an allegedly “Conservative Republican” President—a “Conservative Republican” who shunned all notions of true capitalism, individual responsibility, or adherence to the constitution. George W. Bush presided over a despicable decline in our Country’s moral fibre and economic integrity, but Barack Hussein Obama has taken office with the apparent intention and purpose of putting our beloved country “out of its misery”—the hard way….
What is the relevance of Obama’s birth certificate to monetary policy? Well, I personally despise Obama’s arrogance, repeatedly demonstrated lack of candor, and I submit that his unwillingness to disclose the true details concerning his birth arouse reasonable suspicions in many reasonable people, whether or not they actually evidence and bespeak technical constitutional ineligibility by reason of birth, to start off with. Such technical ineligibility might constitute a minor and possibly trivial reason to remove Obama compared to the character flaws, which his behavior unequivocally attests, regardless of the true facts of his birth.
If you or I were Obama, and you or I had been born in a foreign land, you or I should and (I hope!) would admit it and suggest that all Americans (even the Native Americans, if you trace them back far enough) eventually came from somewhere else, and that you or I should be deemed qualified based on our honesty, integrity and ability to do the job, and (again I hope!) that we would candidly but directly ask the people of the United States to accept one of us or both of us as an exception to the rule, or else to repeal the rule by Constitutional Amendment: “because it would be better to save the whole constitution regarding the will of the people and democratic elections by breaking a single clause, than to sabotage the constitution as a whole by obeying a single clause.”
But the truth is that Barack Obama has none of these qualities or qualifications, nor does he have the integrity or humility to speak the truth and be judged upon it. OBAMA’S REJECTION AND SUPPRESSION OF ALL QUESTIONS, his unwillingness to answer doubts about himself, his identity, his qualifications, or even his positions on the issues bespeaks an unconscionable arrogance utterly unacceptable in a democratic society. Even some supporters recognize and admit that Barack Obama’s attitude towards campaign promises is that it is laughable to expect a candidate to keep his word once elected.
More sinister it is, more damning we at Deo Vindice find it and charge that it is, that in the course of trying to verify Barack Hussein Obama’s identity, Dr. Orly Taitz has discovered and now presented to the United States District Court for the Central District of California some substantial and extensive evidence that Barack Hussein Obama and Michelle Obama have maintained dozens, perhaps hundreds, of apparently fictitious addresses throughout the United States associated with several dozen apparently fictitious social security numbers, and many fictitious employment positions. In other words, their entire lives appear to be tangled webs of bizarre and unfathomable lies.
His missing original birth certificate, the possibility that Barack Obama was born in Kenya or is otherwise classifiable as a foreign citizen residing illegally in the territory of the United States, pales in comparison with the notion that, prior to ascending to the Presidency, Barack Hussein Obama engaged in a pattern of consistent criminal conduct with regard to his identity which defies imagination.
We at Deo Vindice supported Dr. Orly Taitz’ litigation to prove that Barack Hussein Obama has engaged in, and in fact obtained the Presidency of the United States, through an unparalleled pattern of racketeering and related criminal conduct, and thereby inflicted irreparable injury on the United States and its people, and that he has nearly snuffed out the Constitution, not just in regard to his election, but every policy which he has pursued and implemented since his election.
His apparent crimes of manipulation of identity and social security numbers and employment bepeak all of the flaws and internal inconsistencies of the Federal Reserve—IRS—Social Security—Welfare-based economy. The manipulation of social security numbers is a crime unfathomable to any economy which was not based on redistribution of wealth. The tax and credit-based economy uses these identity numbers as measures or indices of wealth, but it is false wealth and false integrity to participate in a system which directly and proportionally punishes increasingly large accumulations of capital and ultimately seeks to destroy such accumulations, especially when coupled with private property.
It is our understanding of the fiat-money and non-capitalist but purely credit-based economic system and its relation to wealth and private property which has created Deo Vindice and Tierra Limpia and which impels them to specific action against mortgage fraud, and to general action against the fraudulent economy, which is so plainly the home and playground of Barack H. Obama.
Because only Dr. Orly Taitz appeared to have the courage and perseverance to expose the details behind Barack Obama’s career of lies and deception, we supported her litigation efforts with our labor, and we urged anyone who supported our program [namely our primary mission to redeem ownership and control property for the people from the government-sponsored banks and to destroy the false-money/house-of-credit cards economy once and for all] to support her.

We can no longer support Dr. Taitz because she has broken faith with us.  She is engaged in the most absurd defamatory tactics and antics for the most absurd reasons.  She is, I have discovered, largely and destructive controlled and manipulated in her actions and decisions by her dependence on her husband Yosef Taitz, who appears from what Orly says to be the very lowest and most degenerate kind of man.   Orly took care that over five months of association I never met him, but his role in the demise of our cooperation was extremely clear. Orly’s energy and passion—so good, with such potential to be great.  Orly’s aim and organization—disastrous. I had put a great deal of hope and aspiration in and relating to my alliance with her, but all these things are over now.  She will not represent the Wells Fargo Class Action or any other mortgage litigation.  She is actively trying to sabotage these causes by personal, vindictive attacks on me.

I can only reiterate that I am very, very interested in exploring the jurisprudence of quo warranto against Barack Obama, and would happily engage in dialogue with anyone interested in launching another round of litigation in Washington, D.C., either an army of pro se petitioners or a class represented by COMPETENT counsel.

Imponderable Stones for Princeton University, Princeton NJ (CELIV, November 15, 2009))

Using the quotation below as a jumping off point, tell us about an event or experience that helped you define one of your values or changed how you approach the world:

”Some questions cannot be answered./ They become familiar weights in the hand,/ Round stones pulled from the pocket, unyielding and cool.”1

– Jane Hirshfield, poet, Princeton Class of 1973

“Woman in Red Coat” from Of Gravity and Angels (Middletown, CT: Wesleyan University Press, 1988). ©1988 Jane Hirshfield. Reprinted by permission of Jane Hirshfield.

Imponderable Stones I have Cast into the Rhine (or Lake Travis)

What is right and what is wrong?  What is good and what is evil?  What is true and what is false?  These are three of the imponderable cold pebbles I carry in my pocket.  They are not small stones at all, depending on the day or the week or other goings-on in my life they seem more-or-less heavy but they never manage to rip through my clothes showing an easy answer, either.  I do not even know what color they are.  They just weigh down my pants while I’m walking through the woods, as really large collection of rocks did which I carried back from Glacier National Park in Montana a couple of weeks ago.

As I have been writing my college applications, I have repeatedly been confronted with defining myself and explaining who I am and why, aside from my grades and the academic skills which they may or may not prove I possess, why I should be admitted to the community of the learned, the few, the happy few, the band of brothers and sisters who attend really good colleges like Princeton for example.

(With all due apologies for butchering lines from Henry V, Act III, Scene 1).

What I have come up with is that there is nothing more unique about my life experience and background than the divorce proceedings between my parents which was not so much an event as a torturous process that started when I was barely three and ended, not with a bang but an imperceptible whimper, not by a final judgment but by simple exhaustion, when I was 15-16.  I’m not sure anyone knew when it all ended.  It just kind of stopped and my parents aren’t fighting anymore.  They aren’t back together or anything.  They just aren’t fighting and they can talk on the telephone and occasionally meet for lunch (without any lawyers or police being present!) and some uninformed observers might even mistake my parents for truly civilized human beings.

But throughout most of my conscious existence they spent a lot of time fighting and apparently made some small points in legal history relating to the relationship between family law and the bill of rights, family law and judicial immunity, child custody (that would be me!) and freedom of speech.  I have been so privileged to have parents who cared about me enough to spend several successive 4-year college tuitions on trying to do what was best for me.  And so, from my parents, in addition to all else they have taught me, and they’ve admittedly taught me a lot, I have also acquired a fairly uniquely bi-polar perspective on what is good and what is evil, what is right and what is wrong, what is true and what is false.

My conclusions are fairly simple and provide, I think, an easy formula or recipe to apply to the world stage: “right” is whatever prevents conflict and maintains peace, so conflict is always “wrong” except when fighting a war is the only possible road to honor and integrity, to the perfection of truth, justice, and the American way.   The distinction is obvious, isn’t it?  Peace is always “good” and war is always “evil” except when staying at peace permits our enemies to remilitarize the Rhineland (just to pick a wild example from 20th century history) and start up the Krupp Factories in the Ruhr again (even though during my lifetime the only products I ever see on store shelves are Coffee Makers and grinders and I really don’t see why we shouldn’t allow those to be mass-produced in times of war or peace).

Because, you see, when our enemies don’t seem to be doing anything, what they are really doing is preparing for war, in particular for a war of annihilation, because unconditional surrender is the only possible or acceptably just end to unjust war.   And so, whenever we are in a truly just war, as against the Nazis (or the Confederates), the only just possibility is complete and absolute conquest, unconditional surrender, and the wall-to-wall destruction of the infrastructure of conquered lands.

So “good and evil” and “right and wrong” are relatively easy questions, but how about truth and falsehood?  I have easy answers for those questions, too: “truth” is whatever you can get 7-12 people in a jury room to agree to, or a majority in Congress to vote to support; “false” is whatever our enemies believe.

Let me give you some “family law” or “domestic relations” examples of just how simple all of this is, and I’m happy to say that these stories have NO direct parallels in my family (that I know of) or my parents’ divorce, at all.  (Now, remember, I’m writing from Texas so I won’t tell you what I’ve learned about love and sex, because that’s slightly more confusing:  you see, here in Texas lots of our neighbors believe that God loves us all and that’s why we’re going to burn in Hell, you see, and further and additionally is that sex is the most awful, filthy thing on earth and for that very reason you should save it to share only with someone you love.  I’m so happy to have grown up in Texas!)

From time immemorial, we all know as a matter of elementary “kinship” and morality that “Love” is good and “incest” is evil.  As I may have mentioned elsewhere in this application, among my favorite music are the operas of Richard Wagner.  Without any doubt, the grandest of all grand operas is Der Ring des Niebelung, a four part composition which only the strongest ubermenschen among opera-goers can manage to see within a single week.  There is a love story and family history in Der Ring: Siegmund and Sieglinde are twin children of the King of the Gods, Wotan, who are separated from each other in childhood (they aren’t his children by his wife Freia, the goddess of marriage, they are “love children” by some “other woman” who’s really not part of the story at all).  As a young girl, Sieglinde is married to a fairly unpleasant Bourgeois-Republican type of fellow by the name of Hunding, but at least they (like Wotan and his wife) have no children.  One night a stranger shows up at the Hunding-Sieglinde home (which has a large Ash tree growing in the middle of an otherwise spotless household living room).  Hunding is out and the stranger starts talking with Sieglinde.  He’s young, tired, needs a drink, and soon realizes that Sieglinde is his sister and he is her brother and so they run away into the woods and conceive their own love-child named Siegfried.  Loving his children very much, Wotan, pressured by his wife Freia (goddess of marriage), kills his son Siegmund while another of his (Wotan’s) love children Brunhilde (the most beautiful and valliant of the Valkyries) takes Sieglinde off to a safe place in the woods where Siegfried can be born, Sieglinde can die in childbirth, and give her son and his inheritance (a sword and some magical armor) to a dwarf who hasn’t much clue what to do with any of it.  Wotan, ever the loving father, is angry that Brunhilde first protected Siegmund and then hid Sieglinde, but since this is his favorite love child he puts her to sleep on a rock surrounded by magic fire where she can only be awakened by a hero who knows no fear.  This so far is only the story of ONE NIGHT out of the four comprising Der Ring des Niebelung.

In the next night, Siegfried is an adolescent who tries to figure out about life and love and finally meets his aunt (mother’s half-sister) Brunhilde and falls in love with her.  He does this after proving to everyone in his world, including not only the opera audience but a dragon on his second career  (he used to be an upscale-Home-building Giant), the dwarves and his father Wotan, that he is indeed the boy-hero who knew no fear predicted by German Folk-mythology.  So in short, the product of incest, rather than being disfigured by genetic inbreeding, turns out to be the greatest hero known in history.

All of this is relevant to family law, domestic relations generally, and my parents’ divorce in particular, of course, because Wagner’s operas so clearly illustrate the lines between good and evil, right and wrong, truth and falsehood: they are essentially non-existent, and all depend upon perspective.

Love is great, but there was no greater love than the incestuous, illegal, and possibly genetically inadvisable love of Siegmund and Sieglinde.  Family is great, but usually totally dysfunction, and that’s why Wotan and Freia, on the one hand, and Hunding and Sieglinde, on the other, are such completely lousy couples, while the law breakers—Siegmund and Sieglinde, on the one hand, and Siegfried and Brunhilde on the other, made (at least for two of the operas) such great love stories.  Now never mind that in the final opera, Brunhilde arranges for Siegfried to be murdered by treachery and then, feeling so sorry about it all, immolates herself on Siegfried’s funeral pyre, or that this fire reaches up to Wotan’s Castle Valhalla where it presumably kills him and all the other gods, thereby bringing the “Ring” cycle to a “happy” ending because the Rhinegold was finally returned to nature—never mind all this because I wouldn’t finish telling the story until I had graduated college and finished law/med/graduate school (not one but ALL of them) if I tried to keep on writing.

So what I have learned about the imponderable stones is that “every thing that exists, comes to an end” and that anyone who believes firmly in good and evil, right and wrong, or truth and falsehood is either likely to spend 12 years in pointless litigation or to be burned up in a castle set on fire by the funeral pyre of one’s own children.  And that is what I learned in life about unanswerable questions raised by my parents’ divorce.

Charles Edward Andrew Lincoln, IV (Submitted with Application to Princeton, November 15, 2009)

Urban Lights at Los Angeles County Museum of Art—Charlie Lincoln IV and III

 

Charlie IV and Charlie III in search of Fine Art

Two Lamp-Post-Leaning Lincolns at LACMA by LA BREA in Los Angeles

After Sunset, around 6:45 PM, on Tuesday November 24, 2009—a great day in LA….

 

CEL IV and CEL III at LACMA 11-24-09

The Lincolns and their Trustee appreciate Rodin Bronze Sculpture Garden....

I've been waiting for this visit for so many years....

Ever since I attended High School in Los Angeles, back when Ronald Reagan was Governor of California, I have loved the Los Angeles County Museum of Art and the Getty Villa, which opened my last year. Since Charlie was born in Palm Beach, Florida, on the day hurricane Andrew blew through on the night of August 23-24, 1992, well, his mother and I haven’t spent a lot of time together, and that’s been one of the saddest aspects of my life, especially since she and I used to have so much fun together in Area Codes 213 and 310…. So many times I’ve walked around LACMA or the Museum of Natural History and the La Brea Tar Pits or the Getty Villa or the Santa Monica Pier or the Third Street Promenade or Westwood and wished my son were with me, and finally, today, he flew in from Austin, arriving at noon, and we spent the day beginning to make up for some lost time….

Den Xero (“I do not know”) by Charlie (CEL IV) November 18, 2009

French novelist Anatole France wrote: “An education isn’t how much you have committed to memory, or even how much you know. It’s being able to differentiate between what you do know and what you don’t.” What don’t you know?

DEN XERO

I choose to write on what I do not know, because that is the broadest of the three optional topics.  What don’t know?  I for sure don’t know the answer to the second question, because for every good bit of advice I’ve ever been given, there’s at least one and sometimes three alternative pieces of advice which compete with that one good bit of advice.

In fact, I love collecting contradictory, equal but opposite aphorisms, for example: “look before you leap” vs. “he who hesitates is lost”.  Such pairings are almost as good as oxymoronica such as “the greater degree of civilization, the greater degree of degeneration,” “military intelligence,” and  “Microsoft Works.”  (I’m an Apple fan, myself…)

But what I don’t know is what I know, because I don’t know how you can be certain of anything.  Epistemology is for that reason, to me, probably the greatest of all sciences, and the least certain and conclusive.

Hermeneutics is the study of secret meanings, but if the meanings are secret, how can you prove that your hermeneutic analysis is accurate?  Just for example, Freudian and Jungian psychology are two of the most commonly used species of hermeneutic analyses, but they come o opposite conclusions.  Freudian psychology says (construed very grossly) that our individual psyches all evolve individually due to the micro-environment in which we are born, the details of our upbringing, but from these micro-environments we each develop into certain personality types which conform to gross patterns of behavior which we might call “archetypes”—such as the Oedipus complex, which if you think about it is really, pretty definitely, in plain, ordinary colloquial English—really “gross.”

Jungian psychology posits as its own very general and non-specific hypothesis that it is not the micro-environment of individual development but the library of universal archetypes which shape us, and each individual is kind of a grab bag of different personality archetypes which coincide in a distinctive manner (in each individual) that shapes the individual’s life-pattern as a microcosm of society.  How do I know the little that I know about Freudian and Jungian psychology?  I know the little bit that I know because I have read a little bit, which is more than some people my age may have read, but I won’t be sure how right or wrong my conclusions about Freud’s or Jung’s writings are until I’ve read a little bit more.

All I know for certain is that I’m fairly sure that both Freud and Jung, like me, wait for light, but beheld only obscurity, for brightness, but walked in darkness, and groped for the wall like the blind, groping as if they had no eyes, stumbling as noonday as in the night, and that their writings and brilliant insights will be no more, after a thousand years of history from now, than growling like bears or moaning like doves.  (With all due apologies to the Prophet Isaiah, Chapter 59, Verses 9-11).  After all, in their work they gave their heart to know wisdom, and to know madness and folly (they really did, they were after all mental health specialists, both Freud and Jung), and they perceived that this also is vexation of spirit: for in much wisdom is much grief, and he that increaseth knowledge increaseth sorrow.  (With even more apologies to the Preacher, the son of David, king in Jerusalem, who wrote “Ecclesiastes” Chapter 1, verses 17-18.