IRS, FBI, and DOJ,
Here are the latest batch of harassing
emails. Gianelli is writing these emails
for himself if he’s a schizophrenic who actually thinks he is Leonard
Cohen. Before reviewing these emails,
please reread Ann Diamond’s piece on this stalker. It’s helpful to have the views of a third
party who has been harassed, stalked, insulted, and slandered by Leonard
Cohen’s operative, proxy, and co-conspirator.
It is also important to keep in mind that
Gianelli is using fake moniker email accounts to threaten other people such as
Paulette Brandt. This email is
definitely threatening Ms. Brandt who Gianelli has criminally harassed for over
three straight years now. His alleged
protected person appears to be his wife whose email address he included when
harassing me with their Mexican travel plans.
Here is what happens next. If the crazy one even so much as
annoys our protected person again, YOU are the one we are going to see, not
her. We are involved because we are on the ground in Los Angeles.
We are informed that our friend's family member does not use the account the
crazy one has been emailing. That account is used for business purposes and managed
by the person we protect.
For security reasons we are now monitoring all email accounts and relevant
blogs.
What is on my stalker’s mind this morning? My RICO suit, Rooker Feldman, and 9th
Circuit decisions. I would assume Cohen
has an entire team of lawyers thinking through his position that a fraud
default judgment, theft, copyright infringement, tax fraud, etc. are all
acceptable or, at the very least, protected activity in California.
I personally do not believe for one minute that
a process server came to my house.
Rutger, Chad, and I lived there.
Chad’s bedroom was directly off the front door. There was a door bell so no one needed to
knock. I was home consistently and they
were home a great deal of the time. No
one attempted to evade service. I asked
Chad to phone Edelman to advise him that I wasn’t served and brought this to
the attention of Cohen, Gibson Dunn, and Kory & Rice. This was irrelevant to these parties because
it is obvious that Cohen’s intention was to file the fraudulent, baseless, and
meritless complaint in order to tamper with the administration of justice in
the Colorado matter, file and amend his personal tax returns, and apply
for/obtain fraudulent tax refunds.
Actually, what Judge Hess appears to be arguing is that anyone can lie
about serving someone and there are little if any remedies – particularly if
more than two years have past. It seems
like a highly problematic argument and one that is unconstitutional. I discovered the alleged Complaint online in
April 2010. I have no idea if it is the
actual complaint. I was not served and
throwing a Complaint online is not service by any stretch of the imagination. I absolutely acted with diligence and the
fact that Cohen willfully and knowingly bankrupted me should not be used to
further injure me. He has had more
lawyers than Phil Spector has in connection with his murder trial. At one point, there were at least six lawyers
in the courtroom opposing me re. the motion for terminating sanctions (fraud
upon the court) so clearly the motion wasn’t perceived as “frivolous.” There was and remains no Jane Doe. Leonard Cohen submitted documents to the
court, including photographs of me (from well before and well after the alleged
ate of service) arguing that I was the Jane Doe. I was not; this is further extrinsic fraud
with respect to the service issue; and I have submitted evidence that I did not
resemble the alleged Jane Doe. There
were three people at my home, apart from me, on August 24, 2005. At no time did a process server come to my
home that morning. Paulette Brandt was
present at the January 17, 2014 hearing and willing to testify. Palden Ronge was present at the January 17,
2014 hearing and willing to testify.
Joan Lynch, Clea Surkhang, Rutger Penick, and Daniel Meade were available
to testify by CourtCall. They were not
permitted to do so. This was not a full
and fair hearing. I was not served so it
would be impossible for Judge Hess to find that I was served. I have no idea what Judge Hess did or didn’t
do. I know this for a fact – I was not
served; the proof of service is evidence of extrinsic fraud; and it appears
that Cohen acted willfully and knowingly when he realized I was not served and
failed to serve me. By December 2005,
Cohen seemed confident that he would obtain the fraudulent default judgment
entered in May 2006. I believe that is
due to the fact that he understood I was not served. In any event, I haven’t argued that Judge
Hess made the wrong decision. Nor have I
argued anything about the June 23, 2015 hearing. The motion for terminating sanctions (fraud
upon the court) issue is under appeal.
Gianelli evidently visited a collection website
for further information on Rooker-Feldman.
It sounds outrageous that one could not attack an unconstitutional
default judgment in federal court. In
fact, the mere concept is mind-boggling.
I see Cohen’s legal team are focused on “inextricably intertwined.” Obviously, the 9th Circuit
determined that a judgment obtained through “extrinsic fraud” is not barred by
Rooker Feldman. I have argued that the
issue with the fraudulently obtained state court judgment is extrinsic fraud
with respect to the proof of service.
These issues are separate and apart from the fraud upon numerous U.S.
District Courts. Furthermore, Hazel
Atlas applies to this case. Gianelli’s
arguments, on Cohen’s behalf, really drive home this point: the system works beautifully for the
criminals.
A. Alleged Extrinsic
Fraud
Three of Kougasian's causes of action are based, in whole or in
part, on alleged extrinsic fraud on the state court.1 The alleged extrinsic fraud primarily
consisted of submitting the false declaration to the state court in Kougasian I
at the last minute and refusing to supply the telephone number or address of
the declarant, thereby preventing Kougasian from deposing or otherwise
questioning him. “Extrinsic fraud is
conduct which prevents a party from presenting his claim in court.” Wood v. McEwen, 644 F.2d 797, 801 (9th
Cir.1981). Under California
law, extrinsic fraud is a basis for setting aside an earlier judgment. See Zamora v. Clayborn Contracting
Group, Inc., 28 Cal.4th 249, 121 Cal.Rptr.2d 187, 47 P.3d 1056, 1063 (2002).
At first glance, a federal suit alleging a cause of action for
extrinsic fraud on a state court might appear to come within the Rooker-Feldman
doctrine. It is clear that in
such a case the plaintiff is seeking to set aside a state court judgment. But for Rooker-Feldman to apply, a
plaintiff must seek not only to set aside a state court judgment; he or she must also allege a legal
error by the state court as the basis for that relief. See Noel, 341 F.3d at 1164(“If a
federal plaintiff asserts as a legal wrong an allegedly erroneous decision by a
state court, and seeks relief from a state court judgment based on that
decision, Rooker-Feldman bars subject matter jurisdiction in federal court.”)
(emphasis added). A plaintiff alleging
extrinsic fraud on a state court is not alleging a legal error by the state
court; rather, he or she is
alleging a wrongful act by the adverse party. See id. (“If, on the other
hand, a federal plaintiff asserts as a legal wrong an allegedly illegal act or
omission by an adverse party, Rooker-Feldman does not bar jurisdiction.”).
It has long been the law that a plaintiff in federal court can
seek to set aside a state court judgment obtained through extrinsic fraud. In Barrow v. Hunton, 99 U.S. (9 Otto)
80, 25 L.Ed. 407 (1878), the Supreme Court distinguished between errors by the
state court, which could not be reviewed in federal circuit court, and fraud on
the state court, which could be the basis for an independent suit in circuit
court. (The federal circuit
court was a trial court at that time.) Anticipating the Rooker-Feldman doctrine, the Court wrote:
The question presented with regard to the jurisdiction of the
Circuit Court is, whether the proceeding ․ is or is not in its nature a separate suit, or whether it
is a supplementary proceeding so connected with the original suit as to form an
incident to it, and substantially a continuation of it. If the proceeding is merely tantamount
to the common-law practice of moving to set aside a judgment for irregularity,
or to a writ of error, or to a bill of review or an appeal, it would belong to
the latter category, and the United States court could not properly entertain
jurisdiction of the case. Otherwise, the
Circuit Courts of the United States would become invested with power to control
the proceedings in the State courts, or would have appellate jurisdiction over
them in all cases where the parties are citizens of different States. Such a result would be totally
inadmissible.
On the other hand, if the proceedings are tantamount to a bill in
equity to set aside a decree for fraud in the obtaining thereof, then they
constitute an original and independent proceeding, and according to the
doctrine laid down in Gaines v. Fuentes (92 U.S. [ (2 Otto) ] 10, 23 L.Ed. 524), the case might be within the cognizance of
the Federal courts. The distinction
between the two classes of cases may be somewhat nice, but it may be affirmed
to exist. In the one class
there would be a mere revision of errors and irregularities, or of the legality
and correctness of the judgments and decrees of the State courts; and in the other class, the
investigation of a new case arising upon new facts, although having relation to
the validity of an actual judgment or decree, or the party's right to claim any
benefit by reason thereof.
Id. at 82-83 (emphasis added); see also MacKay v. Pfeil, 827 F.2d 540, 543-44 (9th Cir.1987)
(quoting the above passage).
Extrinsic fraud on a court is, by definition, not an error by that
court. It is, rather, a wrongful
act committed by the party or parties who engaged in the fraud. Rooker-Feldman therefore does not bar
subject matter jurisdiction when a federal plaintiff alleges a cause of action
for extrinsic fraud on a state court and seeks to set aside a state court
judgment obtained by that fraud.
It’s quite clear that Leonard Cohen, and his
army of lawyers, have intentionally chosen not to serve me, use the situation
as an opportunity to tamper with the administration of justice with the U.S.
District Court in Colorado, further use the situation to interfere with federal
tax matters, and planned to run statute of limitations and argue res
judicata. That’s part of the overall
scheme to defraud and the federal court should take these issues into
consideration because not only are they plausible, this is precisely what has
occurred. A team of lawyers, representing
celebrity Leonard Cohen, have obtained fraud default judgments, committed fraud
upon numerous courts, and used fraudulent dime-a-dozen restraining orders to
discredit me. LA Superior Court has now
merely assigned me a “dating relationship” with a man who fantasizes about men
holding guns on him, views himself as a CIA MK Ultra participant and recon
during Bay of Pigs, and believes it is acceptable to rip his advisers off and
falsely accuse people of a variety of things in order to breach contracts,
etc. Steven Machat has a good grasp of
who Cohen actually is. While Marty
Machat was dying, Leonard Cohen personally went into his office and removed
corporate books and records. This is
another pattern of Leonard Cohen’s. He
confiscates corporate property which allows him to steal from others. At this moment in time, he appears to have
stolen from me, Machat & Machat, and Phil Spector. Leonard Cohen and his lawyers feel entitled
to conduct themselves in the manner in which they have. Their focus is simultaneously on my fee
waiver and the fact that Cohen willfully bankrupted me. The court should take that into consideration
as well. Leonard Cohen has used the
court system to engage in a pattern of racketeering activity and he feels entitled
to do so. Leonard Cohen believes it is
acceptable to lie under oath. And,
Leonard Cohen thinks it is acceptable to blame his wrongdoing on others. I think the federal court should take a look
at who Leonard Cohen actually is, what he and his lawyers have done here, and
forget the fact that Cohen has intentionally projected himself onto the world
stage as some religious sage.
Kelley
Gods, Gangsters & Honour by Steven Machat
Excerpts:
Leonard was desperate to get rid of this two managers, Judy
Berger and Mary Martin, who he believed had stolen the rights to his songs and
records early on in his career. Even back then, Cohen was convinced that
women were ripping him off. He signed an agreement, and when he wanted to
get rid of the contract, he accused everyone of ripping him off. You
could say it became repeat behaviour. My father duly got rid of Berger
and Martin, set up a new company called Stranger Music for Cohen and agreed to
manage Leonard for 15% as well as 15% of Stranger. The idea of the
company was twofold: one, to maintain ownership of the copyrights duly
created; and two, to minimise Leonard’s exposure to American tax, just like any
other rich individual trying to minimise their tax liabilities.
I’ve no problem with people trying to avoid tax, but as the
years have passed, I couldn’t help but smile at the apparent contradiction
between Leonard’s public persona and his private business arrangements.
This was a supposedly devout Buddhist with no interest in material
possessions, who was all the same happy to put his trust in business managers
and companies he created with his knowledge and consent whose sole aim was to
minimise tax liability.
Leonard then sold Stranger Music for a small fortune and I’ve
seen nothing from Cohen.
Cohen controlled his copyright, not my father. The irony
was that Cohen had total control over my father … Do you know what
happened to the $400,000 worth of bearer bonds in my father’s office?
Bearer bonds are just unregistered bonds or paper money that are used to
conceal ownership and, with it, tax liabilities. Cristini told me (who
knows if this is true?) that he had found the bonds in my father’s office hours
after he had died but the next day they disappeared.
Cohen denied any knowledge of these bonds. I was unsure if
they existed or were part of my father’s schemes cooked up to conceal Leonard’s
money.
Cohen said: “Steven, you remember the 1988 tour?
Flemming extorted $100,000 from me. He wanted 20% managerial
commission, in addition to his promoter’s fees. He thought he was doing
extra work for me and wanted me to pay him.”
Far from being the poet of the spirits, Leonard was a hustler
using Buddhism as a facade.
It was clear that Leonard was also wary of me because, I guess,
he thought I might be planning to sue him.
The whole scheme was so ridiculous [Leonard Cohen’s attempts to
limit his liabilities on the deals] from the start. All Leonard had to
do to avoid U.S. taxes was tear up his green card, and stop living in and using
the U.S. as his base.
It’s no secret that Leonard has also made a killing on the art
market by selling his paintings, plus his touring of the last two years … If
that’s true, it doesn’t really tally with the clear implication from Cohen that
he is a man who has been robbed of everything.
Leonard told me before I left that he had actually offered
Kelley a settlement …
It’s clear that Cohen and his lawyers want to heap the blame on
Kelley’s shoulders for more than just revenge. Because Cohen’s pension
assets were cashed in … ahead of schedule they are liable to tax so they need
to establish that this situation is her fault. The penalties could
actually be greater than the tax itself.
Leonard
has cast himself into a hell of his own making.
______________________________________________________________________
From: STEPHEN R. GIANELLI <stephengianelli@gmail.com>
Date: Thu, May 12, 2016 at 3:23 AM
Subject:
To: blind <distribution@gmail.com>
You may wish to read Reusser v. Wachovia Bank, N.A.,
515 F.3d 855, 859-60 (9th Cir. 2008, or not, since it vaporizes your argument.
It holds that even as to “extrinsic fraud” (e.g., the service issue only)
Rooker-Feldman APPLIES where the state court (as in your case) heard and
rejected your allegation of extrinsic fraud.
Here, the Reussers allege that Wachovia engaged in two acts of
extrinsic fraud. First, they allege that Wachovia failed to provide sufficient
notice of its intent to seek a default judgment against the Reussers, in
violation of Oregon Rule of Civil Procedure (“ORCP”) 69A(1). Second,
they allege that Wachovia failed to inform the state trial court that they had
been served a copy of the Reussers' petition contesting the merits of the FED
proceeding. The hitch in both contentions, however, is that they already have
been litigated in Oregon state court. In their
motion to vacate the state default judgment, the Reussers argued that their
failure to appear at the FED proceeding was supported by “good cause” under
ORCP 71, due in part to the same alleged misconduct at the heart of the present
suit. The state court denied the Reussers' motion and therefore left
the default judgment intact.The Reussers contend that the state court's refusal
to vacate the default judgment cannot bar federal jurisdiction, because the
state court did not specify the precise grounds on which its judgment rested.
Accordingly, they argue, it is possible that the state court denied their
motion on a procedural ground, rather than deciding the merits of their claims.
However,
the record reveals that the parties did not present a procedural argument
before the state court either in their written motions or at the hearing that
followed. While the state court did not cite the specific grounds
underlying its denial of the motion, it expressly indicated that its decision
was based on its “review[of] the motion and pleadings in support of and
opposition to the motion, and having heard argument from counsel,” and when
asked at the hearing whether it had any questions concerning the case, the
state court responded that it did not. The only
reasonable conclusions are that the state court refused to credit the Reussers'
factual allegations, or that it held that the allegations of “fraud,
misrepresentation, or other misconduct of an adverse party,” ORCP 71B(c), were
insufficient to permit vacatur of the default judgment. Thus, even drawing all “reasonable inferences from
the complaint” in the Reussers' favor, Am. Fed'n of Gov't Employees Local 1 v.
Stone, 502 F.3d 1027, 1032 (9th Cir.2007) (internal quotation marks omitted),
we must conclude that the state court rejected the claimed extrinsic fraud on
the merits.5 Accordingly, the Reussers' § 1983 claims constitute a de facto appeal of a state court
decision and are therefore barred by the Rooker-Feldman doctrine. That is, even assuming that the misconduct that
the Reussers allege rises to the level of extrinsic fraud, such claim was
itself separately litigated before and rejected by an Oregon state court. -
See more at: http://caselaw.findlaw.com/us-9th-circuit/1400722.html#sthash.8NiFvIYG.dpuf
From: STEPHEN R. GIANELLI <stephengianelli@gmail.com>
Date: Thu, May 12, 2016 at 4:55 AM
Subject: Hearing 1-17-2014; Alleged
"extrinsic fraud" re proof of service ALREADY DECIDED BY STATE COURT;
Rooker-Feldman DOES APPLY even to the service issue
To: blind <distribution@gmail.com>
From the attached TR 1-17-2014
p. 4, lines 1-4 “You also have problems on the merits.”
9.26, line 8 to p. 15, line
1 “Now, you are arguing that the
judgment is void because it was based on a false proof of service. […] a
declaration by a registered process server is entitled to a presumption of
correctness under Evidence Code section 647…and the fact that the process
server knocks and gets no answer and the lights are on, inferentially supports
that you didn’t answer…well somebody came to the door on
this date…somebody came to the door apparently. Now, you know, since
you do not have a valid declaration here to establish any evidence, you have a
problem…And the Cohen declaration says that a photo take of you the summer of
2006 shows you with blond hair…the restraining order describes you as
…blond…you know, not only was there
service, but there
was delivery to this Jane Doe and it was also mailed. You have
not satisfactorily accounted for the mailing. It went to an address you were
concededly living at. It was mailed to that address. Now, in
addition, there was the request for entry of default which I understand you
received by email…in addition, even if you could demonstrate extrinsic fraud and, frankly I don’t think you have demonstrated it, I don’t think you have carried your burden of proof
that the declaration of the process server was false. ¶ You
cannot show that you acted with diligence. You state that you found out about
this action in April of 2010, but you provide absolutely zero explanation [of]
why you waited until August 2013 […] you have not demonstrated that
the proof of service of summons and complaint was false or indeed even
questionable, nor have you shown any entitlement [to] any
relief on any equitable basis. […] and I don’t see any
diligence and I don’t see a basis for setting this aside, frankly.”
Clearly and without a doubt, you can disagree with Judge Hess’
ruling on January 17, 2014, but you cannot seriously dispute that Judge
Hess considered and rejected your contentions that the proof of service was
false and that there was “extrinsic fraud” on the merits. Judge Hess simply
held that you failed to meet your burden of proving that the proof of service
was false, in the face of affirmative evidence that you were indeed served as
reflected in the proof of service, by delivery to “Jane Doe” and also with a
copy of the suit mailed to the residence you admit you were living in at the
time. Judge Hess expressly found at the hearing that you were in fact served.
Therefore, Reusser v. Wachovia Bank, N.A., 515 F.3d
855, 859-60 (9th Cir.
2008) is right on point.
Essentially, you are not only seeking to overturn the CA
judgment in BC338322, you are asking the district court to – in essence – hold
that Judge Hess made the WRONG DECISION when he denied your motion to vacate on
January 17, 2014 and that Judge Hess made the WRONG DECISION again on June 23,
2015 when he AGAIN denied your (second) request to set the 2006 judgment aside.
That is classic Rooker-Feldman, and the district court lacks
jurisdiction to entertain it.
From: STEPHEN R. GIANELLI <stephengianelli@gmail.com>
Date: Thu, May 12, 2016 at 5:14 AM
Subject: FYI; Rooker-Feldman bars federal court
claims premised on lack of service; plaintiff must exhaust the state ct.
appeals process and then seek review directly from the US Supreme Ct.
To: blind <distribution@gmail.com>
Friday, May 7, 2010
Using The Rooker-Feldman Doctrine To
Defeat federal Claims
As collection
attorneys know, consumers often do not pay close attention to the collection
process until the creditor already has a judgment and counsel has an order that
allows for garnishing the consumer’s wages or attaching their bank accounts.
These post-judgment collection efforts can
spawn claims in federal court, where the consumers allege they were never
served with the state court complaint, or that the state court judgment against
them is somehow improper. Claims of this type, however, are barred by the Rooker-Feldman doctrine and are doomed to fail.
What exactly is the Rooker-Feldman doctrine anyway? As the
Supreme Court recently observed, the Rooker-Feldman doctrine
applies to “cases brought by state-court losers complaining of injuries caused
by state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those judgments.” Exxon
Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005). Thus, the Rooker-Feldman doctrine
prevents litigants from attacking a state court judgment by filing a subsequent
federal lawsuit, “no matter how erroneous or unconstitutional the state court
judgment may be. (citations). Kelly v. Med-1 Solutions, LLC,
548 F.3d 600, 603 (7th Cir. 2008).
The Rooker-Feldman doctrine “applies not only to claims that
were actually raised before the state court, but also to claims that are
inextricably intertwined with state court determinations.” Id.
(citation omitted). A claim filed by a
consumer in federal court is “inextricably intertwined” with a state court
decision if “the adjudication of the federal claims would undercut the state
ruling or require the district court to interpret the application of state laws
or procedural rules . . . .” Bianchi v. Rylaarsdam, 334
F.3d 895, 898 (9th Cir. 2003). Even a
claim by a consumer that the state court judgment was obtained through
“extrinsic fraud” is barred by the Rooker-Feldman doctrine. See Reusser v. Wachovia Bank, N.A.,
515 F.3d 855, 859-60 (9th Cir. 2008).
The Kelly case provides an excellent example of how the Rooker-Feldman doctrine
can bar an FDCPA claim. There, the plaintiffs’ FDCPA claims alleged that the
state court judgments defendants had obtained included sums for attorneys’ fees
that were not permitted by contract or law. See Kelley, 548 F.3d at
602. When defendants raised the Rooker-Feldman doctrine,
plaintiffs argued their claims were not barred, because they were only
challenging “defendants’ representations and requests related to attorney fees,
and not the state court judgments granting those requests.” Id. at
604. The Kelly court rejected this argument, noting that the
state court had determined the fees were proper, and the district court lacked
jurisdiction to rule that the holding was erroneous:
“Because defendants needed to prevail in state
court in order to capitalize on the alleged fraud, the FDCPA claims that
plaintiffs bring ultimately require us to evaluate the state court judgments. We could not determine that defendants'
representations and requests related to attorney fees violated the law without
determining that the state court erred by issuing judgments granting the
attorney fees.”
Id. at 605.
More recently, in Bryant v. Gordon & Wong Group, P.C., 681 F.
Supp. 2d 1205 (E.D. Cal. 2010), appeal docketed, No. 10-15401 (9th
Cir. Feb. 22, 2010), the plaintiff sued a collection law firm, claiming he had
never been served with the complaint in the state court collection action, and
that “out of the blue” he discovered his checking and savings accounts had been
garnished. See Bryant, 681 F. Supp. 2d at 1206. The court rejected
the claim, noting that by “disputing the
garnishment of his accounts, Plaintiff is inherently challenging the entry of
default against him and the writ of execution that authorized the garnishment.” Id.
at 1208. Summary judgment was granted for
defendant under the Rooker-Feldman doctrine, because plaintiff’s claims were
seeking to undermine the judgments entered against him in state court. The
court held:
“The net effect is that Plaintiff is seeking to
undermine the state court judgments. These
judgments were rendered before the current district court proceeding, and any
action by this Court in favor of Plaintiff on his claims would
necessarily require review of those state court judgments. The Rooker-Feldman
doctrine specifically bars this Court from doing so. If Plaintiff
believes he has been wronged by the actions of the state court, he must turn to
the state for remedy. This Court lacks
jurisdiction to provide redress for Plaintiff's claims.”
Id.
The Rooker-Feldman doctrine is a key defense in cases like Kelly and Bryant,
where a consumer is pursuing claims that would undermine the validity of a
state court judgment or its findings. The collector should move for summary
judgment on the grounds that the district court lacks subject matter
jurisdiction over the claims. See Bianchi, 334 F.3d at 898
(district court lacks subject matter jurisdiction if claims raised in federal
action are inextricably intertwined with state court decision).
If a consumer has a
problem with a state court judgment, he cannot attack the judgment or undermine
it using the federal courts. He must seek relief from the
judgment utilizing the procedures available under state law. “A state litigant
seeking review of a state court judgment must
follow the appellate process through
the state court system and then directly to the United States Supreme Court.” Kelley,
548 F.3d at 603.
From: STEPHEN R. GIANELLI <stephengianelli@gmail.com>
Date: Thu, May 12, 2016 at 3:23 AM
Subject:
To: blind <distribution@gmail.com>
You may wish to read Reusser v. Wachovia Bank, N.A.,
515 F.3d 855, 859-60 (9th Cir. 2008, or not, since it vaporizes your argument.
It holds that even as to “extrinsic fraud” (e.g., the service issue only)
Rooker-Feldman APPLIES where the state court (as in your case) heard and
rejected your allegation of extrinsic fraud.
Here, the Reussers allege that Wachovia engaged in two acts of
extrinsic fraud. First, they allege that Wachovia failed to provide sufficient
notice of its intent to seek a default judgment against the Reussers, in
violation of Oregon Rule of Civil Procedure (“ORCP”) 69A(1). Second,
they allege that Wachovia failed to inform the state trial court that they had
been served a copy of the Reussers' petition contesting the merits of the FED
proceeding. The hitch in both contentions, however, is that they already have
been litigated in Oregon state court. In their
motion to vacate the state default judgment, the Reussers argued that their
failure to appear at the FED proceeding was supported by “good cause” under
ORCP 71, due in part to the same alleged misconduct at the heart of the present
suit. The state court denied the Reussers' motion and therefore left
the default judgment intact.The Reussers contend that the state court's refusal
to vacate the default judgment cannot bar federal jurisdiction, because the
state court did not specify the precise grounds on which its judgment rested.
Accordingly, they argue, it is possible that the state court denied their
motion on a procedural ground, rather than deciding the merits of their claims.
However,
the record reveals that the parties did not present a procedural argument
before the state court either in their written motions or at the hearing that
followed. While the state court did not cite the specific grounds
underlying its denial of the motion, it expressly indicated that its decision
was based on its “review[of] the motion and pleadings in support of and
opposition to the motion, and having heard argument from counsel,” and when
asked at the hearing whether it had any questions concerning the case, the
state court responded that it did not. The only
reasonable conclusions are that the state court refused to credit the Reussers'
factual allegations, or that it held that the allegations of “fraud,
misrepresentation, or other misconduct of an adverse party,” ORCP 71B(c), were
insufficient to permit vacatur of the default judgment. Thus, even drawing all “reasonable inferences from
the complaint” in the Reussers' favor, Am. Fed'n of Gov't Employees Local 1 v.
Stone, 502 F.3d 1027, 1032 (9th Cir.2007) (internal quotation marks omitted),
we must conclude that the state court rejected the claimed extrinsic fraud on
the merits.5 Accordingly, the Reussers' § 1983 claims constitute a de facto appeal of a state court
decision and are therefore barred by the Rooker-Feldman doctrine. That is, even assuming that the misconduct that
the Reussers allege rises to the level of extrinsic fraud, such claim was
itself separately litigated before and rejected by an Oregon state court. -
See more at: http://caselaw.findlaw.com/us-9th-circuit/1400722.html#sthash.8NiFvIYG.dpuf
From: STEPHEN R. GIANELLI <stephengianelli@gmail.com>
Date: Thu, May 12, 2016 at 4:55 AM
Subject: Hearing 1-17-2014; Alleged
"extrinsic fraud" re proof of service ALREADY DECIDED BY STATE COURT;
Rooker-Feldman DOES APPLY even to the service issue
To: blind <distribution@gmail.com>
From the attached TR 1-17-2014
p. 4, lines 1-4 “You also have problems on the merits.”
9.26, line 8 to p. 15, line
1 “Now, you are arguing that the
judgment is void because it was based on a false proof of service. […] a
declaration by a registered process server is entitled to a presumption of
correctness under Evidence Code section 647…and the fact that the process
server knocks and gets no answer and the lights are on, inferentially supports
that you didn’t answer…well somebody came to the door on
this date…somebody came to the door apparently. Now, you know, since
you do not have a valid declaration here to establish any evidence, you have a
problem…And the Cohen declaration says that a photo take of you the summer of
2006 shows you with blond hair…the restraining order describes you as
…blond…you know, not only was there
service, but there
was delivery to this Jane Doe and it was also mailed. You have
not satisfactorily accounted for the mailing. It went to an address you were
concededly living at. It was mailed to that address. Now, in
addition, there was the request for entry of default which I understand you
received by email…in addition, even if you could demonstrate extrinsic fraud and, frankly I don’t think you have demonstrated it, I don’t think you have carried your burden of proof
that the declaration of the process server was false. ¶ You
cannot show that you acted with diligence. You state that you found out about
this action in April of 2010, but you provide absolutely zero explanation [of]
why you waited until August 2013 […] you have not demonstrated that
the proof of service of summons and complaint was false or indeed even
questionable, nor have you shown any entitlement [to] any
relief on any equitable basis. […] and I don’t see any
diligence and I don’t see a basis for setting this aside, frankly.”
Clearly and without a doubt, you can disagree with Judge Hess’
ruling on January 17, 2014, but you cannot seriously dispute that Judge
Hess considered and rejected your contentions that the proof of service was
false and that there was “extrinsic fraud” on the merits. Judge Hess simply
held that you failed to meet your burden of proving that the proof of service
was false, in the face of affirmative evidence that you were indeed served as
reflected in the proof of service, by delivery to “Jane Doe” and also with a
copy of the suit mailed to the residence you admit you were living in at the
time. Judge Hess expressly found at the hearing that you were in fact served.
Therefore, Reusser v. Wachovia Bank, N.A., 515 F.3d
855, 859-60 (9th Cir.
2008) is right on point.
Essentially, you are not only seeking to overturn the CA
judgment in BC338322, you are asking the district court to – in essence – hold
that Judge Hess made the WRONG DECISION when he denied your motion to vacate on
January 17, 2014 and that Judge Hess made the WRONG DECISION again on June 23,
2015 when he AGAIN denied your (second) request to set the 2006 judgment aside.
That is classic Rooker-Feldman, and the district court lacks
jurisdiction to entertain it.
From: STEPHEN R. GIANELLI <stephengianelli@gmail.com>
Date: Thu, May 12, 2016 at 5:14 AM
Subject: FYI; Rooker-Feldman bars federal court
claims premised on lack of service; plaintiff must exhaust the state ct.
appeals process and then seek review directly from the US Supreme Ct.
To: blind <distribution@gmail.com>
Friday, May 7, 2010
Using The
Rooker-Feldman Doctrine To Defeat federal Claims
As collection
attorneys know, consumers often do not pay close attention to the collection
process until the creditor already has a judgment and counsel has an order that
allows for garnishing the consumer’s wages or attaching their bank accounts.
These post-judgment collection efforts can
spawn claims in federal court, where the consumers allege they were never
served with the state court complaint, or that the state court judgment against
them is somehow improper. Claims of this type, however, are barred by the Rooker-Feldman doctrine and are doomed to fail.
What exactly is the Rooker-Feldman doctrine anyway? As the
Supreme Court recently observed, the Rooker-Feldman doctrine
applies to “cases brought by state-court losers complaining of injuries caused
by state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those judgments.” Exxon
Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005). Thus, the Rooker-Feldman doctrine
prevents litigants from attacking a state court judgment by filing a subsequent
federal lawsuit, “no matter how erroneous or unconstitutional the state court
judgment may be. (citations). Kelly v. Med-1 Solutions, LLC,
548 F.3d 600, 603 (7th Cir. 2008).
The Rooker-Feldman doctrine “applies not only to claims that
were actually raised before the state court, but also to claims that are
inextricably intertwined with state court determinations.” Id.
(citation omitted). A claim filed by a
consumer in federal court is “inextricably intertwined” with a state court
decision if “the adjudication of the federal claims would undercut the state
ruling or require the district court to interpret the application of state laws
or procedural rules . . . .” Bianchi v. Rylaarsdam, 334
F.3d 895, 898 (9th Cir. 2003). Even a
claim by a consumer that the state court judgment was obtained through
“extrinsic fraud” is barred by the Rooker-Feldman doctrine. See Reusser v. Wachovia Bank, N.A.,
515 F.3d 855, 859-60 (9th Cir. 2008).
The Kelly case provides an excellent example of how the Rooker-Feldman doctrine
can bar an FDCPA claim. There, the plaintiffs’ FDCPA claims alleged that the
state court judgments defendants had obtained included sums for attorneys’ fees
that were not permitted by contract or law. See Kelley, 548 F.3d at
602. When defendants raised the Rooker-Feldman doctrine,
plaintiffs argued their claims were not barred, because they were only
challenging “defendants’ representations and requests related to attorney fees,
and not the state court judgments granting those requests.” Id. at
604. The Kelly court rejected this argument, noting that the
state court had determined the fees were proper, and the district court lacked
jurisdiction to rule that the holding was erroneous:
“Because defendants needed to prevail in state
court in order to capitalize on the alleged fraud, the FDCPA claims that
plaintiffs bring ultimately require us to evaluate the state court judgments. We could not determine that defendants'
representations and requests related to attorney fees violated the law without
determining that the state court erred by issuing judgments granting the
attorney fees.”
Id. at 605.
More recently, in Bryant v. Gordon & Wong Group, P.C., 681 F.
Supp. 2d 1205 (E.D. Cal. 2010), appeal docketed, No. 10-15401 (9th
Cir. Feb. 22, 2010), the plaintiff sued a collection law firm, claiming he had
never been served with the complaint in the state court collection action, and
that “out of the blue” he discovered his checking and savings accounts had been
garnished. See Bryant, 681 F. Supp. 2d at 1206. The court rejected
the claim, noting that by “disputing the
garnishment of his accounts, Plaintiff is inherently challenging the entry of
default against him and the writ of execution that authorized the garnishment.” Id.
at 1208. Summary judgment was granted for
defendant under the Rooker-Feldman doctrine, because plaintiff’s claims were
seeking to undermine the judgments entered against him in state court. The
court held:
“The net effect is that Plaintiff is seeking to
undermine the state court judgments. These
judgments were rendered before the current district court proceeding, and any
action by this Court in favor of Plaintiff on his claims would
necessarily require review of those state court judgments. The Rooker-Feldman
doctrine specifically bars this Court from doing so. If Plaintiff
believes he has been wronged by the actions of the state court, he must turn to
the state for remedy. This Court lacks
jurisdiction to provide redress for Plaintiff's claims.”
Id.
The Rooker-Feldman doctrine is a key defense in cases like Kelly and Bryant,
where a consumer is pursuing claims that would undermine the validity of a
state court judgment or its findings. The collector should move for summary
judgment on the grounds that the district court lacks subject matter
jurisdiction over the claims. See Bianchi, 334 F.3d at 898
(district court lacks subject matter jurisdiction if claims raised in federal
action are inextricably intertwined with state court decision).
If a consumer has a
problem with a state court judgment, he cannot attack the judgment or undermine
it using the federal courts. He must seek relief from the
judgment utilizing the procedures available under state law. “A state litigant
seeking review of a state court judgment must
follow the appellate process through
the state court system and then directly to the United States Supreme Court.” Kelley,
548 F.3d at 603.
From: STEPHEN R. GIANELLI <stephengianelli@gmail.com>
Date: Thu, May 12, 2016 at 8:11 AM
Subject: Your blog posted email dated Wed, May
11, 2016 at 1:56 PM
To: blind <distribution@gmail.com>
Ms. Lynch,
You write:
1. “I find Gianelli’s interpretation of Rooker Feldman
moronic.” (Unfortunately for you, you filed in the 9th Circuit, which
agrees with me that Rooker-Feldman DOES apply even to federal actions
seeking to set aside a state court judgment based on alleged “extrinsic fraud”
where (as in your case on January 17, 2014) the allegation of “fraud” was
raised in the state court through a motion to vacate and was denied –see
Reusser v. Wachovia Bank, N.A., 515 F.3d 855, 859-60 (9th Cir.
2008); also see the attached hearing transcript reflecting Judge
Hess’ ruling that your claim of “extrinsic fraud” based on an alleged “false
proof of service” was without merit and finding
that you were in fact served, i.e. Hess denied your “extrinsic fraud” claim on
its merits.)
2. “If [the federal district court] has the audacity to
dismiss this case, it will be appealed.” (Excuse me, but appealed to
what court exactly? The 9th Circuit Court of Appeals, that
just last month dismissed your appeal from the December 29, 2015
tax court order dismissing that proceeding as “frivolous”?
Not unless you are prepared to pony up a $500 filing fee, you are not!
Audacity? My God, you are so very clueless. Dismissing your prolix, meritless,
and time-barred RICO suit will not be an act of “audacity” it will be Judge
Wilson and/or Magistrate Feldman’s DUTY to do so, since Rooker-Feldman is only
one of many fatal defects in your filing, none of which can be cured by
amendment.)
As you know, I write for myself alone.
-
