R E C e ~')qe8EIVED COpyAuditor's Office ORIGINAL FILED

David ~ Darby, .. SEP 1 5 2~~:p 11 2014\ SEP 11 2014Sovereign Stat~ Citizen .,' . . f ~ m~~~OOOg Atlomflj h"'t)Pursuant to Article 2, SectlOn~rd 0 e~TPIV'\ Civil Oivl§ion. . ~tt G. Webe~ Clerk Clark Co ~ ?::t>}...-\ J~A9of 1878 Constitution of the State ofWas'hington RECE~Vl:u .. . \ \V a 11P:o. Box 772 Amboy, Was~in~on ~lOZ S t d3S tZIP exempt (Not Federal District) ~FP 15 2014 f·

3:J3tIN THE SUPERIOR COURT OF THE rrs& i· ~A-S-HIN-G-T-O--'N~~tftIN AND FOR THE COUNTY OF CLARK

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SEP 15 2014

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David A Darby,Sovereign State Citizenpursuant to Article 2 , Section 3of 1878 Constitution of the State of WashingtonPlaintiff

vs

DefendantsClark County, a political subdivision of theState of Washington Acting in their official capacityfor the County of Clark are the Following:Greg Kimsey Clark County AuditorDoug Lasher Clark County TreasurerPeter Van Nortwick Clark County assessorDavid Madore Clark County CommissionerEdward L.Bames Clark County CommissionerAnthony Golick Clark County ProsecutorTaylor R. Hallvik Clark County Deputy Pros.Gary Lucas Sheriff Clark County

Case No.:

DeptNo.: 14-1-12637-8PlaintiffDavid A Darby, Sovereign StateCitizen pursuant to Article 2 , Section3 of 1878 Constitution of the State ofWashington, Plaintiff's MandatoryJudicial Notice.

1213 Plaintiff's Collateral attack to vacate and void the Order and Judgment of Foreclosure.14 Plaintiff David A Darby Sovereign State Citizen pursuant to Article 2 , Section 3 of 187815 Constitution of the State of Washington ("Plaintiff's") Moves this court for mandatory judicial16 notice To all officers of the court for the superior court of the state of Washington in and for the17 County of Clark are hereby placed on notice under the authority of the supremacy and equal18 protection clauses of the United states Constitution and common law authorities of Haines Vs.19 Kerner, 404 U.S. 519, Platsky Vs. C.I.A., 953 F.2d 25, and AnastasoffVs. United States, 22320 F.3d 898(8th Cir.07/25/ 2001).2122

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1 MANDATORY JUDICAL NOTICE23 1. In Re Haines: Pro Se Litigant (Plaintiff is a Pro Se Litigant) are held to less Stringent4 pleadings standards than BAR Registered Attorneys. Regardless of the deficiencies in5 their pleadings, pro se litigants are entitled to the opportunity to submit evidence in6 support of their claims.

7 2. In re Platsky: court errs if court dismisses the pro se litigant (Plaintiff is a Pro Se8 Litigant) with instruction of how pleadings are deficient and how to repair the pleadings.

9 3. In re Anastasoff: litigants' Constitutional rights are violated when courts depart from10 precedent where parties are similarly situated. All litigants have a constitutional right to11 have their claims adjudicated according the rule of precedent. See AnastasoffVs. United12 States,223 F.3d 898(8th Cir. 2000). Statements of Counsel, in briefs or oral arguments are13 not sufficient for motion to dismiss or for summary judgment, Trinsey Vs. Pagliaro, D.C.14 Pa.1964, 229 F. Supp. 647. In re Stac Elecs. Sec. Litig., 89 F.3d 1399,1403 (9th Cir.15 1996); Jones Vs. General Elec. Co.,87 F.3d 209,211 (~h Cir. 1996 )

16 4. Contrary to the Defendant's claims, the Defendant has no legal standing to bring filing17 the Order and Judgment of Foreclosure based on evidence produced. Attorneys cannot18 testify. Statements of counsel in brief or in oral argument are not facts before the court.19 This finding of a continuing investigation, which forms the foundation of the majority20 opinion, comes from statements of counsel made during the appellate process. As we21 have said of other un-sworn statements which were not part of the record and therefore22 could not have been considered by the trial court: ''Manifestly, [such statements] cannot23 be properly considered by us in the disposition of [a) case." United States v. Lovasco,.24 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (06/09/77).

25 5. Under no possible view, however, of the findings we are considering can they be held to26 constitute a compliance with the statute, since they merely embody conflicting statements27 of counsel concerning the facts as they suppose them to be and their appreciation of the28 law which they deem applicable, there being, therefore, no attempt whatever to state the29 ultimate facts by a consideration of which we would be able to conclude whether or not30 the judgment was warranted. Gonzales v. Buist. (04/01/12) 224 U.S. 126, 56 L. Ed. 693,31 32 S. Ct. 463. No instruction was asked, but, as we have said, the judge told the jury that32 they were to regard only the evidence admitted by him, not statements of counsel, Holt33 v. United States. (10/31/10) 218 U.S. 245, 54 L. Ed. 1021,31 S. Ct. 2, licable ("[a]n34 action must be prosecuted in the real party in interest.",)The standing doctrine "involves35 both constitutional limitations on federal-court jurisdiction and prudential limitations on36 its exercise on its exercise. Kowalski v. Tesmer,543 U.S. 125,128-29,125 S.Ct.564,16037 L.Ed.2d 519(2004)(quoting Warth v. Seldin,422 U.S.490,498, 95 S.Ct 2197,45 L.Ed.2d38 343 (1975). Constitution Standing under Article ill requires, at a minimum, that a party39 must have suffered some action or threatened injury as a result of the defendant's40 conduct, that the injury be traced to the challenged action, and that it is likely to be41 redressed by favorable decision.

42 6. Valley Forge Christian CoiL V. Am. United (or Separation ofchurch and43 state,454,U.S. 46.4,472,102 S.Ct 752,70 L.Ed 700 (1982) (citations and internal44 quotations omitted). Beyond the Article ill requirements of injury in fact, causation, and

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1 redressibility, the creditor must also have prudential standing, which is a judicialIy-2 created set of principles that places limits on the class of persons who may invoke the3 courts' powers. Warth v. Seldin, 422 U.S. 490,499, 95 S. Ct 2197,45 L.ed. 2d 3434 (1975)). As a prudential matter, a plaintiff must assert ''his own legal interests as the real5 party in interest". (Dunmore v. Unites States, 358 F.3d 1107, 1112 (9th Cir. 2004), as6 found in Fed. R. Civ. P. 17, which provides "[a]n action must be prosecuted in the name7 of real party in interest.").

8 7. The court of appeal cited Alejandre Vs. Deutsche Bank Trust Co. Ams.,44 So. 3d9 1288,1289 (Fla 4fh DCA 2010.,( The movant must disprove the affirmative defenses or

10 show they are legally insufficient) The court of appeal found the homeowners sufficiently11 pled the bank's failure to satisfy condition precedent regarding pre-acceleration notice12 requirements of the mortgage, and court rejected the bank's argument to the contrary.

13 8. Although summary judgment is proper in a case in which there is no genuine dispute of14 material fact, this is not a case in which the court should grant summary judgment See15 Fed. Rule. Civil Procedure 56(a); Celotex Corp. Vs. Catrett, 477 U.S.317,322 (1986)

16 9. A plaintiff moving for summary judgment must satisfy its burden by submitting17 summary-judgment proof that establishes all elements of its claim as a matter of law.18 San Pedro Vs. United States, 79 F.3d 1065,1068(llth Cir. 1996). This burden is satisfied,19 only if, after viewing the evidence in the light most favorable to the defendant, no20 genuine disputes of material fact exist and no reasonable trier of fact could find in favor21 of defendant. Id.

22 10. Fletcher v. Peck, 10 U.S. (6 Cr.) 87 (1810). A Georgia statute annulling conveyance of23 public lands authorized by a prior enactment violated the Contracts Clause (Art. I, § 10)24 of the Constitution. Justices concurring: Marshall, C.J., Washington, Livingston, Todd25 Justice dissenting: Johnson (in part)

26 11. New Jersey v. Wilson, 11 U.S. (7 Cr.) 164 (1812). A New Jersey law purporting to repeal27 an exemption from taxation contained in a prior enactment conveying certain lands28 violated the Contracts Clause (Art. I, § 10).

29 12. Terrett v. Taylor, 13 U.S. (9 Cr.) 43 (1815). Although subsequently cited as a Contract30 Clause case (Piqua Branch Bank v. Knoop, 57 U.S. (16 How.) 369, 389 (1853)), the31 Court in the instant decision, without referring to the Contracts Clause (Art. I, § 10),32 voided, as contrary to the principles of natural justice, two Virginia acts that purported to33 divest the Episcopal Church of title to property "acquired under the faith of previous34 laws."

35 13. Sturges v. Crowninshield,17 U.S. (4 Wheat.) 122 (1819). Retroactive operation ofa New36 York insolvency law to discharge the obligation of a debtor on a promissory note37 negotiated prior to its adoption violated the Contracts Clause (Art. I, § 10).

38 14. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). Under the principle of national39 supremacy (Art. VI), which immunizes instrumentalities of the Federal Government from40 state taxation, a Maryland law imposing a tax on notes issued by a branch of the Bank of41 United States was held unconstitutional.

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1 15. Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819). A New Hampshire law2 that altered a charter granted to a private eleemosynary corporation by the British Crown3 prior to the Revolution violated the Contracts Clause (Art. I, § 10).

4 16. David A Darby Sovereign State Citizen pursuant to Article 2 , Section 3 of 18785 Constitution of the State of Washington.

6 17. It is mandatory that this court recognize the 1878 Constitution of the State of7 Washington.

8 18. Under the state of Washington 1878 Constitution only allodial title is recognized. See the9 following excerpts or the attached 1878 Constitution of the State of Washington.

10 Article 2, Section 3. The people of the state, in their right of sovereignty, are declared to11 possess the ultimate property in and to all lands within the jurisdiction of the state, and all lands,12

13 Article V, Section 3.14 All persons are by nature free, and equally entitled to certain natural rights; among which are,15 those of enjoying and defending their lives and liberties; of acquiring, possessing and protecting16 property; and seeking and obtaining happiness. To secure these rights, governments are17 instituted, deriving their just powers from the consent of the governed.1819 Article V, Section 14.20 No bill of attainder, ex post facto law, or any law impairing the obligation of contracts, or21 making any irrevocable grant of special privileges, franchises or immunities, shall be passed by22 the legislature.23

24 Article V, Section 15.25 Private property shall not be taken or damaged for public use without just compensation; and no26 persons particular service shall be required without just payment therefor.27

28 Article V, Section 23.29 All lands within the state are declared to be allodial, and feudal tenures, with all their incidents,30 are prohibited .

31

32 Article XII, Section 17.33 Private property, shall not be taken or sold for the payment of the corporate debt of municipal34 corporations.35

36 Article XV, Section 10.37 All patents or grants of land, made by the United States to settlers and purchasers of tide lands38 shall be ratified and confirmed by the state.

39

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1 Article XV, Section 14.2 The common law of England - applicable to our conditions and circumstances, and not repugnant3 to, or inconsistent with, the constitution of the United States, or the constitution or laws of this4 state - shall be in full force, and the rule of decision in all courts in this state; but in the event of5 laws being passed, conferring rights or impairing obligations growing out of or founded upon6 principles of the civil and not the common law, then the rules of the civil law may be resorted to7 for the purpose of interpretation and decision.

8

9 19. Plaintiff David A Darby Sovereign State Citizen pursuant to Article 2, Section 310 of 1878 Constitution of the State of Washington has a contractual right given to him by11 the 1878 Constitution of the State of Washington,12

13 20. The state cannot interfere with a Sovereign State Citizen right to contract Bourchard v.14 First People's Trust, 253 Mass 351, 148 NE 895, Schumman-Heink v. Folsom, 159 NE15 250. (1927) Right to Contract.

1617 21. United States Supreme Court has long held and recognized that freedom to make18 contracts and have them enforced by the courts is a part of the bundle of rights protected19 by the "due process" clauses of both the Fifth and Fourteenth Amendments.20 Patterson v. Bank Eudora,190 US 169(1903),47 LEd 1002,23 S Ct21 821,Muller v. Oregon, 208 US 412,52 L Ed 551,38 S Ct 324 (1908),Frisbie22 v. U.S. 157 US 160,39 LE.d 657,15 S CT 586 (1895).2324 22. Plaintiff upon certified information and belief and firsthand knowledge believes that25 the 1878 Washington Constitution of the State of Washington. Was redefmed by the26 state.

27 23. It is mandatory that this court recognize the 1787 Constitution for the United States of28 America and the attached Bill of Rights known as Amendments 1 thru 13 including the29 original 13th

•

3031 24. It is mandatory that this court recognize the 1878 Washington Constitution of the32 State of Washington.3334 25. It is mandatory that this court recognize the Order Granting Plaintiff's Motion for35 Summary Judgment.363738 26. ON THE LAW OF VOIDS IN WASHINGTON

39 Court held that a quiet title action, not an action to vacate the judgment, was the40 appropriate means for the grantee of a judgment debtor to clear the title of land sold under a void41 judgment. Krutz, 25 Wash. at 572-74, 577-78. In Krutz, the judgment and subsequent sheriffs42 sale were void for improper service. Krutz, 25 Wash. at 566-78. The court stated that the grantee,43 who purchased from the judgment debtor, was not a party to the prior judgment and could not

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1 have brought a motion to vacate the void judgment. Krutz, 25 Wash. at 566-78. Similarly,2 Mueller, having an interest in the property as the purchaser from Griffin's estate, made a3 collateral attack on the validity of the sheriffs sale through this quiet title action.

4

5 If a motion to relieve a party from judgment is based on mistake, inadvertence, excusable6 neglect, newly discovered evidence or irregularity in obtaining the judgment, it must be made7 within a year of the judgment's entry. CrR 7.8(b). A motion based on a void judgment or "{a}ny8 other reason justifying relief from the operation of the judgment" may be brought within a9 reasonable time. CrR 7.8(b)(5); State v. Clark, 75 Wn. App. 827, 830, 880 P.2d 562 (1994).

1011 A judgment is void when the court does not have personal or subject matter jurisdiction,12 or "lacks the inherent power to enter the order involved." Petersen, 16 Wash. App. at 79 (citing13 Bresolin, 86 Wash. 2d at 245; Anderson, 52 Wash. 2d at 761) (additional citation omitted). A14 trial court has no discretion when faced with a void judgment, and must vacate the judgment15 "whenever the lack of jurisdiction comes to light." Mitchell v. Kitsap County, 59 Wash. App.16 177, 180-81, 797 P.2d 516 (1990) (collateral challenge to jurisdiction of pro tern judge granting17 summary judgment properly raised on appeal) (citing Allied Fidelity Ins. Co. v. Ruth, 57 Wash.18 App. 783, 790, 790 P.2d 206 (1990». As discussed above, since the judgment is void, this19 collateral attack through the quiet title action was proper.

20

21 A challenge to a void judgment can be brought at any time. Matter of Marriage of Leslie,22 112 Wash. 2d 612, 618-19, 772 P.2d 1013 (1989) (citing John Hancock Mut. Life Ins. Co. v.23 Gooley, 196 Wash. 357, 370, 83 P.2d 221 (1938) (additional citation omitted); CR 60(b)(5).

24

25 A trial court's decision to grant or deny a motion to vacate a default judgment is generally26 reviewed for an abuse of discretion.; however, a court has a nondiscretionary duty to vacate a27 void judgment. Leen, 62 Wash. App. at 478; In re Marriage of Markowski, 50 Wash. App. 633,28 635, 749 P.2d 754 (1988); Brickum Inv. Co. v. Vernham Corp., 46 Wash. App. 517, 520, 73129 P.2d 533 (1987).

30

31 A motion to vacate under CR 60(b)(5) ''may be brought at any time" after entry of32 judgment. Lindgren v. Lindgren, 58 Wash. App. 588, 596, 794 P.2d 526 (1990), review denied,33 116 Wash. 2d 1009, 805 P.2d 813 (1991); see also Brenner v. Port Bellingham, 53 Wash. App.34 182, 188, 765 P.2d 1333 (1989) ("motions to vacate under CR 60(b)(5) are not barred by the35 'reasonable time' or the I-year requirement of CR 60(b )"). Void judgments may be vacated36 regardless of the lapse of time. In re Marriage of Leslie, 112 Wash. 2d 612, 618-19, 772 P.2d37 1013 (1989). Consequently, not even the doctrine of aches bars a party from attacking a void38 judgment. Leslie, 112 Wash. 2d at 619-20.

39

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1 Brenner provides a striking example of how meaningless the passage of time is in the2 context of a void judgment. There, a default judgment was entered in 1969 condemning all3 interests in certain real property and vesting title in the Port of Bellingham. In 1985, Brenner4 sued the Port for damages resulting from the condemnation action and alleged in part that the5 Port had failed to satisfy the statutory requirements of service by publication. The trial court6 denied Brenner's motion for summary judgment, ruling that the Port's error was merely an7 irregularity and, thus, voidable under CR 60(b)(1) rather than void under CR 60(b)(5). The trial8 court also found that Brenner had failed to move to vacate the judgment within a reasonable time9 as required by CR 60(b)(1). 53 Wash. App. at 185. The Court of Appeals reversed, holding that

10 the Port's failure to strictly comply with the requirements of service by publication meant the11 court had no jurisdiction over Brenner when it entered the 1969 judgment condemning her12 interest in the property. Recognizing that a default judgment entered without valid service is void13 and may be vacated at any time, the court remanded the case to the trial court with instructions to14 vacate the 16-year-old judgment. 53 Wash. App. at 188. In the present case, the trial court15 expressly found Allstate's service of process was defective. "Proper service of the summons and16 complaint is essential to invoke personal jurisdiction over a party, and a default judgment entered17 without proper jurisdiction is void." Markowski, 50 Wash. App. at 635-36; see also Mid-City18 Materials. Inc. v. Heater Beaters Custom Fireplaces, 36 Wash. App. 480, 486, 674 P.2d 127119 (1984). Because a party may move to vacate a void judgment at any time (Leslie, 112 Wash. 2d20 at 618-19), the trial court erred by finding that Khani failed to bring his motion within a21 reasonable time. Further, as discussed in detail below, the trial court's finding that Khani had22 actual notice of the default judgment through the DOL notice is irrelevant on these facts. More23 significantly, the trial court erred by denying Khani's motion because it failed to fulfill its24 nondiscretionary duty to vacate a void judgment. See Leen, 62 Wash. App. at 478; Markowski,25 50 Wash. App. at 635. Thus, the trial court's order must be reversed and the case remanded with26 instructions to vacate the default judgment and quash the writ of garnishment. See Leslie, 11227 Wash. 2d at 618 (a vacated judgment has no effect, and the parties' rights are left as though the28 judgment had never been entered).

29

30 A void judgment is always subject to collateral attack. Bresolin v. Morris, 86 Wash. 2d31 241, 245, 543 P.2d 325 (1975). A void judgment must be vacated whenever the lack of32 jurisdiction comes to light. Mitchell v. Kitsap Cy., 59. Wash. App. 177, 180-81, 797 P.2d 51633 (1990).

34

35 "A void judgment may be attacked collaterally as well as directly. It is entitled to no36 consideration whatever in any court as evidence of right, Kizer v. Caufield, 17 Wash. 417, 49 P.37 1064.

38

39

4041

42

A void judgment is defined in Dike v. Dike, 75 Wash. 2d 1, 7, 448 P.2d 490 (1968).

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1 These historical rules are set against the fact that the law of reopening estates is derived2 from the law of vacating judgments. In re Jones' Estate, 116 Wash. 424,426, 199 P. 734 (1921).3 With the advent of CR 60, additional justifications upon which to reopen an estate may exist.4 Specifically, CR 60(b)(4) allows the court to vacate a judgment procured through '{f}raud ... ,5 misrepresentation, or other misconduct of an adverse party.' CR 60(b)( 4). Of course, a 'void6 judgment is also unenforceable. CR 60(b)(5). CR 60 also contain a catchall provision, which7 permits the court to vacate a judgment for' {a}ny other reason justifying relief from the operation8 of the judgment.' CR 60(b )(11).

9

10 It is true that, under CR 60(b)(5), a court may vacate a void judgment at any time. A11 judgment is void if entered by a court without jurisdiction. In re Marriage of Ortiz, 108 Wn.2d12 643,649, 740 P.2d 843 (1987).

13

14 Where the judgment was procured fraudulently so that it was void and its invalidity15 appeared on the face of the record so that either on the Henkles' or on the commissioner's own16 motion, the court commissioner had the power to vacate the void judgment without notice to17 McCormick. Morrison v. Berlin,. the court commissioner did not manifestly abuse his discretion18 here. State v. Scott.

1920 Assuming the judgment to be void, the primary question is: Have they such right? There21 is no question but that a court has inherent power to purge its records of void judgments. It may22 do so of its own motion. It must be conceded that a party to the record, adversely affected by a23 voidjudgment, may have the judgment vacated as a matter of right -- and this without a showing24 of a meritorious defense. Hole v. Page, 20 Wash. 208, 54 P. 1123; Batchelor v. Palmer, 12925 Wash. 150, 224 P. 685. The parties to the record (the Pumneas) in this case, however, are not26 adversely affected by the judgment in question. For they have parted with their interest in the27 property, and the judgment has been satisfied. An order vacating the judgment would affect their28 rights or liabilities in no manner whatsoever. As to them it is 'functus officio, wherefore the29 question of the legality or illegality of its intention is a mere abstraction with which it is no part30 of the business of appellate courts to deal.' Davis v. Blair, 88 Mo.App. 37

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VERIFICATION

I, David A Darby Sovereign State Citizen pursuant to Article 2, Section 3 of 1878 Constitution ofthe State of Washington, am the defendant in the above-entitled action and I have read the aboveAffidavit. I am competent to testify and I have personal knowledge of the matters stated hereinexcept as to those matters stated upon belief or information and, as to those matters, I believe themto be true. I declare under penalty of perjury and my own commercial liability, under the laws ofthe State of Washington, that the foregoing is true, correct, complete, and not misleading, to thebest of my knowledge, So Help Me GOD.

-Ifl.-L'r-tf:t--" da of.C "~'1t.2014, in County of Clark State of Washington., <..,

David A Darby,Sovereign State Citizen Pursuant to Article 2, Section 3of 1878 Constitution of the State of WashingtonP.O. Box 772 Amboy, WashingtonZip exempt (Not Federal District)

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