The following is a guest article by Alfred Adask, former Libertarian Party candidate for The Texas Supreme Court.
Black’s 7th (A.D. 1999):
“nondischargeable debt. A debt (such as one for delinquent taxes) that is not released through bankruptcy.”
[Defining “nondischargeable debt” as only applying to questions of bankruptcy implies that “dischargeable debt” is likewise a concept found only in bankruptcy. Is the essence of “legal tender” the ability to “discharge” our debts? Does “discharge” (rather than “pay”) imply that we must be in bankruptcy?
That makes sense. Legal tender has, by definition, always existed when at least the government could not pay its debts with lawful money/specie. Thus, insofar as the persistent inability to pay debt has been an essential indicator of bankruptcy, it would follow that reliance on legal tender would always be an indication that those who use legal tender are bankrupts.
Normally, a person can file for bankruptcy protection as a voluntary act of “self-defense”. If a person does not personally file for bankruptcy protection, he will not normally be presumed to be bankrupt. Therefore, unless the use of legal tender was backed up by something like a SSN (to prove your relationship as fiduciary/employee of the federal government and thus liable for the debts of the bankrupt federal government), it seems that a single instance of using legal tender would be no more sufficient to presume a person was bankrupt than a single instance of not paying one’s bills.
However, if three separate creditors (“out of the mouths of two or three”) came to court claiming that one man wasn’t paying all three, the court could put that person into an involuntary bankruptcy.
Even so, in a particular case, where are the three instances/“creditors” required to “prove” that a particular defendant is not paying his bills and is therefore a presumed involuntary bankrupt? If the plaintiff is suing me for $500,000, it seems that we have a single claim of non-payment of debt; we do not have three “creditors” claiming that I’ve failed to pay three different debts.
Unless . . . what if the plaintiff alleged three causes of action under three (or more) separate statutes? What if the plaintiff alleged that I owed $500,000 on the original debt; that I owed another $250,000 for legal fees, and another $200,000 in “punitive damages”? What if the plaintiff alleged three separate “debts” and/or “causes of action,” each debt/cause was denominated in legal tender (seeking discharge rather than payment), and each debt/cause was under a separate statute. Is it possible that I might be deemed a “debtor” to each of the three underlying statutes?? If so, and if I’d been given notice of all three of the separate debts/causes and I refused to pay or settle out of court, then could the court deem me to be a bankrupt/debtor when I came to court and proceed against me as a debtor?
If that hypothesis were valid, a defendant’s first lines of defense might be 1) deny any debtor-creditor relationship exists between himself and the plaintiff; 2) deny that he’s voluntarily agreed to serve as debtor and/or surety relative to the three or more statutes under which the plaintiff makes his claims (I’ll bet that the government can’t make you a debtor to a statute without your voluntary consent; forced debtor status would be involuntary servitude); 3) deny that you are bankrupt and/or produce evidence that you have gold/silver sufficient to pay at least part of the alleged “debt”; 4) deny that you owe a debt denominated in legal tender; 5) accuse the plaintiff of being bankrupt by virtue of paying the filing fee in legal tender; 6) accuse the plaintiff of being a bankrupt (without rights) by virtue of not paying its debts in specie. 7) accuse plaintiff of being bankrupt for not paying any filing fee; 8) deny the court’s subject matter jurisdiction to hear bankruptcy cases; etc..
Deny that you’re bankrupt when the plaintiff sends his first notice/petition to your denominated in legal tender (I.e., the case starts with a plaintiff’s claim for damages denominated in legal tender. By reference to legal tender, the plaintiff creates the presumption that the defendant must be a bankrupt. If the plaintiff sues for legal tender, he must presume that the defendant is already bankrupt, can’t pay his bills, and therefore will be “privileged” to discharge his obligation with legal tender. In 95 to 98% of all cases, that “discharge” would be negotiated with a plea bargain and/or out-of-court “settlement” wherein the creditor-plaintiff took whatever he could get from the “bankrupt” defendant-debtor.
My point is that if the case starts with claims denominated in legal tender, and if the defendant does not object to that medium of transfer by denying that he’s bankrupt, then the defendant’s failure to repudiate the plaintiff’s claim (in FRNs) might be deemed as the defendant’s implicit confession that he is a bankrupt and/or that he consents to be tried under the rules of bankruptcy.
If so, then if the defendant replied to the plaintiff’s first notice/petition with an express, sworn denial of being 1) personally bankrupt or 2) surety for a bankrupt (U.S. gov-co), plus 3) a demand that he be sued in specie rather than legal tender, and 4) a declaration that the plaintiff is bankrupt—might the plaintiff be estopped from proceeding?
As evidence that I am not bankrupt, suppose I posted a “conditional” bond (if there is such thing) made out to the plaintiff for 21 silver dollars as at least a partial payment of any debt truly due from me to the plaintiff. Suppose I conditioned that specie bond on being found guilty AT COMMON LAW for the alleged offenses/debts? By pre-bonding the case at law—even partially—with a bond denominated in specie I might create evidence that I was not bankrupt and was therefore not subject to process wherein I was deemed without rights to . . . substantive due process? Is procedural due process for bankrupts? Is substantive due process for creditors and/or men who are “solvent”?
What would happen if I were sued for $500,000 (legal tender), and I offered to settle for 21 silver dollars (specie)? Aren’t 21 silver dollars worth more than $5 (legal tender) for 21 silver dollars? Aren’t 21 silver dollars (actual assets) worth more than $500,000 in legal tender/debt instruments?
If I offered to settle a case denominated in legal tender with specie (and backed my offer to settle in specie with denials of being bankrupt, being involved in a debtor-relationship with the plaintiff, etc.), would I create a “conflict of law” that could only be resolved by a judicial court?
This line of conjecture needs a lot of work. The ideas that the courts presume us to be bankrupts from our use of legal tender and/or from being charged by government under three or more statutes (witnesses? Creditors?) to which we are presumed debtors are pretty flimsy. Still, if “non-dischargeable debt” applies only in bankruptcy, and therefore (??) all debts subject to “discharge” implicate bankruptcy law, it does appear that the use of legal tender would tend to invoke bankruptcy laws.
If that were true, there might be three fundamental, “generic” defenses: 1) deny that you’re the debtor; claim to be the creditor; 2) deny that you are bankrupt; and 3) produce a bond or other evidence that you have specie and/or are willing to litigate for specie.
“irredeemable bond. See annuity bond under BOND (3).”
“redeemable bond. See BOND (3).”
“redeemable security. See SECURITY.”
“redeemable stock. See STOCK.”
Black’s 4th (A.D. 1957):
“RECTUS. In the old law of descents. Right; upright; the opposite of obliquus (q.v.).”
“OBLIQUUS. Lat. In the old law of descents, oblique; cross; transverse; collateral. The opposite of rectus, right, or upright.”
Findlaw search USSC “nondischargeable debt”:
1. FindLaw Case
http://laws.findlaw.com/us/000/96-1923.html
[This case is under the heading “SUPREME COURT OF THE UNITED STATES” (not “UNITED STATES SUPREME COURT” or “U.S. SUPREME COURT”).]
… … credit is] obtained by” fraud. The phrase thereby makes clear that the share of money, property, etc., that is obtained by fraud gives rise to a nondischargeable debt. Once it is established that specific money or property has been obtained by fraud, however, “any debt” arising therefrom is excepted from …
[This partial text suggests that any debt, cause or case based on FRAUD gives rise to a “non-dischargeable debt”. If so, this suggests that a plaintiff might not have to sue for or accept legal tender as a “discharge” for debts based on FRAUD. Instead, fraud might open the door to sue for specie.]
… a ‘fine, penalty, or forfeiture’ ”). Because each use of “debt for” in §523(a) serves the identical function of introducing a category of nondischargeable debt the presumption that equivalent words have equivalent meaning when repeated in the same statute, e.g., Ratzlaf v. United States, 510 U.S. 135, 143 …
[Bankruptcy Code: 11 USC 523(a)]
http://laws.findlaw.com/us/000/97-115.html
[This case is under “U.S. SUPREME COURT”.]
… in civil actions for ” ‘willful and malicious injuries to the person or property of another’ “? Id. , at 480. The Tinker Court held such an award a nondischargeable debt. The Kawaauhaus feature certain statements in the Tinker opinion, in particular: “[An] act is willful . . . in the sense that it is intentional and …
[This is less clear. Is the debt nondischargeable because it was established by an “award” by the court? Or is the debt nondischargeable because it was based on “willful and malicious injuries”?
Is the debt is nondischargeable because it was based on an award by a court, it had little application relative to my hypothesis. However, if the debt is nondischargeable because it was based on “willful and malicious injuries,” then it might be possible to sue for specie whenever a defendant was charged with “willful and malicious injuries”.]
3. FindLaw Case
http://laws.findlaw.com/us/523/213.html
[This case under “SUPREME COURT OF THE UNITED STATES”]
… … credit is] obtained by” fraud. The phrase thereby makes clear that the share of money, property, etc., that is obtained by fraud gives rise to a nondischargeable debt. Once it is established that specific money or property has been obtained by fraud, however, “any debt” arising therefrom is excepted from …
[Again, issue of fraud would seem to implicate a nondischargeable debt. The common denominator between “fraud” and the “willful and malicious injuries” in case # 2 (supra) would seem to be the element of INTENT. There can’t be “intent” in the fictional realm—only conduct or perhaps “effects”. Intent could only be committed only by living men (not legal fictions or even double personalities). Thus, any question of intent would implicate a living man necessarily acting on The State and perhaps give rise to at least the option to sue for damages/ debts payable in specie rather than legal tender.
This implies that “actual” and “intentional” necessarily implicate the “real” and natural world (laws of nature and nature’s God) of “The State” while “constructive” implicates “this state”/legal fiction.]
… a ‘fine, penalty, or forfeiture’ ”). Because each use of “debt for” in §523(a) serves the identical function of introducing a category of nondischargeable debt the presumption that equivalent words have equivalent meaning when repeated in the same statute, e.g., Ratzlaf v. United States, 510 U.S. 135, 143 …
http://laws.findlaw.com/us/523/57.html
[“U.S. SUPREME COURT”]
… in civil actions for ” ‘willful and malicious injuries to the person or property of another‘ “? Id. , at 480. The Tinker Court held such an award a nondischargeable debt. The Kawaauhaus feature certain statements in the Tinker opinion, in particular: “[An] act is willful . . . in the sense that it is intentional and …
5. FindLaw: UNITED STATES v. SOTELO, 436 U.S. 268 (1978)
http://laws.findlaw.com/us/436/268.html
[“U.S. SUPREME COURT”]
… was to limit the nondischargeability of certain debts. And yet the Court holds today that the enactment of 17a (1) (e) of that statute results in a nondischargeable debt without regard to whether that debt would have been totally nondischargeable before the passage of 17a (1) (e) – that is, without the slightest …
[Bankruptcy Act à 11 USC 17a(1)(e)]
Filed under "The State" vs. "this state", Money
May 29, 2008
Location of the Debtor
080528
TITLE XXXIV-A
UNIFORM COMMERCIAL CODE
CHAPTER 382-A
UNIFORM COMMERCIAL CODE
ARTICLE 9
SECURED TRANSACTIONS
Part 3
Perfection and Priority
Subpart 1. Law Governing Perfection and Priority
Section 382-A:9-307
382-A:9-307 Location of Debtor. –
[The critical word appears to be “location”.]
(a) “Place of business.” In this section, “place of business” means a place where a debtor conducts its affairs. [This, in turn, implies that all businesses are debtors and/or that all who engage in business must be debtors. To engage in “business” and/or business “affairs” is to be a debtor. Perhaps, “business” is defined as only possible “in this state”; perhaps all “business” is conducted in terms of legal tender, and all legal tender implicates “this state”. Thus, any “place of business” must be “in this state”. That, in turn, implies that all who enter “this state” may be presumed to be debtors. Perhaps there are no “creditors” “in this state”. Maybe “this state” is only for “debtors” while “The State” it the “place of lending” (rather than “place of business”/ “place of debtors”). This would imply that the fiction “ADASK” is always deemed to act “in this state” and is always acting as a debtor. If so, then the man “Adask,” conversely, would then have to be the eternal “creditor” living/existing “within The State”.]
(b) Debtor’s location: general rules. Except as otherwise provided in this section, the following rules determine a debtor’s location:
(1) A debtor who is an individual is located at the individual’s principal residence. [Residence is only for “individuals”? To have a “residence” is to be an “individual”? To be an “individual” means you must be also be a “resident”?]
(2) A debtor that is an organization and has only one place of business is located at its place of business. [Apparently, “business” is associated with an “organization”. To be “in business” implies the existence of an “organization”. If I had guess, I’d bet that the “business organization” includes a bank account. I.e, even if you are a “self-employed” tradesman, if you have a business bank account, that would be part of your “organization”.]
(3) A debtor that is an organization and has more than one place of business is located at its chief executive office.
(c) Limitation of applicability of subsection (b). Subsection (b) applies only if a debtor’s residence, place of business, or chief executive office, as applicable, is located in a jurisdiction [this state?] whose law generally requires information concerning the existence of a nonpossessory security interest to be made generally available in a filing, recording, or registration system as a condition or result of the security interest’s obtaining priority over the rights of a lien creditor with respect to the collateral. If subsection (b) does not apply, the debtor is located in the District of Columbia. [This implies that all debtors are either 1) in Washington DC; or 2) in a “jurisdiction” whose law generally requires information concerning the existence of a nonpossessory security interest to be made generally available in a filing, recording, or registration system . . . .”. This implies that each instance of “this state” may be or include such a “registration system”. Therefore, if you 1) deny that you are located in DC; and 2) deny that your “security interest” is established under such a “registration system”—you might be able to defeat the presumption or declaration that you are a debtor.]
(d) Continuation of location: cessation of existence, etc. A person that ceases to exist, have a residence, or have a place of business continues to be located in the jurisdiction specified by subsections (b) and (c).
[Once a “person” (not necessarily a man) establishes “existence,” “residence” or “place of business” in jurisdictions (b) or (c), that establishment appears to be permanent and survives his “cessation” (not necessarily death), movement to another residence or place of business in another jurisdiction. This implies that if a person “ceases” to “exist,” that may preclude such person from “establishing” a new existence in some other jurisdiction, but cessation of residence or place of business is irrelevant; and you can have several residences, even if you’re only occupying one.
This is very strange. It reminds me of the IRS being allowed to send notice to “last known address” even if the recipient has been gone for years. There is an implication that the term “located” can or must apply to fictions; that once a fiction is found in jurisdiction (b) or (c) it’s there “forever”.
But, unless existence, residence and place of business really are “forever” (at least in “this state”) there must be a process to “officially terminate” one’s “location” in the fiction.
“Location” appears to be the critical term. Black’s 8th defines:
“location. 1. The specific place or position of a person or thing. 2. The act or process of locating. 3. Real estate. The designation of the boundaries of a particle piece of land, either on the record or on the land itself. . . . [“The record” is “in this state”? The land is within “The State”?] 4. Mining law. The act of appropriating a mining claim. . . . 5. The claim so appropriated.—Also termed (in senses 4 & 5) mining location. 6. Civil law. A contract for the temporary use of something for hire; a leasing for hire. See LOCATIO.”
]
(e) Location of registered organization organized under State law. A registered organization that is organized under the law of a State is located in that State.
(f) Location of registered organization organized under federal law; bank branches and agencies. Except as otherwise provided in subsection (i), a registered organization that is organized under the law of the United States and a branch or agency of a bank that is not organized under the law of the United States or a State are located:
(1) in the State that the law of the United States designates, if the law designates a State of location;
(2) in the State that the registered organization, branch, or agency designates, if the law of the United States authorizes the registered organization, branch, or agency to designate its State of location; or
(3) in the District of Columbia, if neither paragraph (1) nor paragraph (2) applies.
(g) Continuation of location: change in status of registered organization. A registered organization continues to be located in the jurisdiction specified by subsection (e) or (f) notwithstanding:
(1) the suspension, revocation, forfeiture, or lapse of the registered organization’s status as such in its jurisdiction of organization; or
(2) the dissolution, winding up, or cancellation of the existence of the registered organization.
(h) Location of United States. The United States is located in the District of Columbia.
(i) Location of foreign bank branch or agency if licensed in only one state. A branch or agency of a bank that is not organized under the law of the United States or a State is located in the State in which the branch or agency is licensed, if all branches and agencies of the bank are licensed in only one State.
(j) Location of foreign air carrier. A foreign air carrier under the Federal Aviation Act of 1958, as amended, is located at the designated office of the agent upon which service of process may be made on behalf of the carrier.
(k) Section applies only to this part. This section applies only for purposes of this part.
Source. 2001, 102:25, eff. July 1, 2001.
http://www.gencourt.state.nh.us/rsa/html/XXXIV-A/382-A/382-A-9-307.htm
TITLE XXXIV-A
UNIFORM COMMERCIAL CODE
CHAPTER 382-A
UNIFORM COMMERCIAL CODE
ARTICLE 9
SECURED TRANSACTIONS
Part 3
Perfection and Priority
Subpart 1. Law Governing Perfection and Priority
Section 382-A:9-307
382-A:9-307 Location of Debtor. –
(a) “Place of business.” In this section, “place of business” means a place where a debtor conducts its affairs.
(b) Debtor’s location: general rules. Except as otherwise provided in this section, the following rules determine a debtor’s location:
(1) A debtor who is an individual is located at the individual’s principal residence.
(2) A debtor that is an organization and has only one place of business is located at its place of business.
(3) A debtor that is an organization and has more than one place of business is located at its chief executive office.
(c) Limitation of applicability of subsection (b). Subsection (b) applies only if a debtor’s residence, place of business, or chief executive office, as applicable, is located in a jurisdiction whose law generally requires information concerning the existence of a nonpossessory security interest to be made generally available in a filing, recording, or registration system as a condition or result of the security interest’s obtaining priority over the rights of a lien creditor with respect to the collateral. If subsection (b) does not apply, the debtor is located in the District of Columbia.
(d) Continuation of location: cessation of existence, etc. A person that ceases to exist, have a residence, or have a place of business continues to be located in the jurisdiction specified by subsections (b) and (c).
(e) Location of registered organization organized under State law. A registered organization that is organized under the law of a State is located in that State.
(f) Location of registered organization organized under federal law; bank branches and agencies. Except as otherwise provided in subsection (i), a registered organization that is organized under the law of the United States and a branch or agency of a bank that is not organized under the law of the United States or a State are located:
(1) in the State that the law of the United States designates, if the law designates a State of location;
(2) in the State that the registered organization, branch, or agency designates, if the law of the United States authorizes the registered organization, branch, or agency to designate its State of location; or
(3) in the District of Columbia, if neither paragraph (1) nor paragraph (2) applies.
(g) Continuation of location: change in status of registered organization. A registered organization continues to be located in the jurisdiction specified by subsection (e) or (f) notwithstanding:
(1) the suspension, revocation, forfeiture, or lapse of the registered organization’s status as such in its jurisdiction of organization; or
(2) the dissolution, winding up, or cancellation of the existence of the registered organization.
(h) Location of United States. The United States is located in the District of Columbia.
(i) Location of foreign bank branch or agency if licensed in only one state. A branch or agency of a bank that is not organized under the law of the United States or a State is located in the State in which the branch or agency is licensed, if all branches and agencies of the bank are licensed in only one State.
(j) Location of foreign air carrier. A foreign air carrier under the Federal Aviation Act of 1958, as amended, is located at the designated office of the agent upon which service of process may be made on behalf of the carrier.
(k) Section applies only to this part. This section applies only for purposes of this part.
Source. 2001, 102:25, eff. July 1, 2001.
Filed under "The State" vs. "this state", Fictions