Opinion
Misc. File No. 20-102
2020-03-23
IN RE: Named Involuntary Petitioner Steven Deon TURNER
SUBSEQUENT ORDER RE
Usurpation of Power, Refusing to File Creditor Petition/Supplemental With a New Submission of the Involuntary Petition accompanied with A Appendix A of Relevant Material Exhibits, Identifying the Legal Authority for the Bond Tendered for Payment of the Fee in this Case.
Ronald H. Sargis, Judge, United States Bankruptcy Court
Steven Deon Turner, Jr. ("Mr. Turner") delivered to the court one Official Bankruptcy Form 105 Involuntary Bankruptcy Petition ("Form 105"). The Form 105 names the person targeted as the bankruptcy debtor to be William Joe Sullivan (the "Form 105 Target"), California Correctional Institution, PO Box 1031, Tehachapi, California, for the involuntary bankruptcy case that Mr. Turner seeks to commence.
The court determined that filing the Form 105 as an involuntary petition and commencing an involuntary bankruptcy case is improper for at least two reasons. First, Mr. Turner has not paid the required filing fee. As discussed below, Mr. Turner has purported to have "paid" the filing fee by providing the court with a document he identifies as his personal "bond" to ensure payment. An involuntary petitioner providing his personal promise to pay the fee does not satisfy the statutory obligation to pay the fee. Second, Mr. Turner does not appear to have standing to commence an involuntary bankruptcy case against the Form 105 Target. Though Mr. Turner states that he is owed Forty Million Dollars ($40,000,000.00) by the Form 105 Target for a variety of alleged wrongs, such asserted obligation does not facially provide the necessary "claim against such person [the Form 105 Target] that is not contingent as to liability or the subject of a bona fide dispute as to liability or amount." 11 U.S.C. § 303(b).
The court opened this Miscellaneous File for Mr. Turner and issued an order on the above. Initial Order and Decision, Dckt. 1. That order provided for allowing Mr. Turner a thirty-day time period to file supplemental pleadings addressing the ruling of the court in the Initial Order and Decision.
On February 20, 2020, Mr. Turner filed a response pleading which is titled "Usurpation of Power, Refusing to File Creditor Petition/Supplemental With a New Submission of the Involuntary Petition, accompanied With A Appendix A of Relevant Material Exhibits, Identifying the Legal Authority for the bond tendered for payment of the Fee, in this Case. See APPX.G United States of Amer. Money Act, 1 Statute At Large 246." Response Pleading, Dckt. 7.
The court addresses the Response Pleading as follows.
RESPONSE PLEADING REVIEW
The court breaks up its review into the topical sections addressed by Mr. Turner. In reviewing this pleading, the court notes that while passionate in his arguments, Mr. Turner is polite and professional in his presentation. He can rest assured that no offense was or is taken in connection with the review of these pleadings.
Bond of Steven Turner Asserted To Be Lawful as Payment of Filing Fee Required for Filing an Involuntary Bankruptcy Petition
The first point addressed by Mr. Turner is that his personal bond is proper and sufficient for the filing fee required for the commencement of an involuntary bankruptcy case (discussed in the Initial Order and Decision). Mr. Turner provides a list of citations, which the court addresses as follows.
A. Legal Tender Case, Juilliard v. Greenman , 110 U.S. 421, 4 S.Ct. 122, 28 L.Ed. 204 (1884) and 31 CFR Part 203
1. In the Legal Tender Case , the Supreme Court addressed the power of Congress to authorize the Secretary of the Treasury to issue, redeem, and cancel United States legal tender notes. It is unclear the applicability of the powers of Congress to issue legal tender to Mr. Turner's assertion that his personal bond (promise) constitutes payment of the filing fee.
B. 31 C.F.R. Part 203
1. This portion of the Code of Federal Regulations relates to the processing by financial institutions of electronic and paper-based deposits and payments of Federal taxes. It also addresses the operation of the Federal Treasury Tax and Loan Program, designation of depositories for that program, and the operation of the investment program relating thereto. Mr. Turner does not explain how the Regulations relating to the electronic payment of taxes are applicable to his payment of the required filing fee to
commence an involuntary bankruptcy case.
The authorities provided by Mr. Turner do not alter the courts conclusion that payment of the filing fee is required when filing an involuntary petition and that Mr. Turner is not exempt from the requirement to pay such filing fee. The court has addressed this requirement in detail in the Initial Order and Decision (Dckt. 1), which is incorporated into this Subsequent Order for all purposes by this reference.
Establishment of a Claim
Mr. Turner asserts that his Proof of Claim was established under Article I and IXth of the International Bill of Rights 1771 C.E. and the Bankruptcy Code. It is further asserted that Mr. Turner made demand on the Form 105 Target, the Form 105 Target was given the time set by Mr. Turner to respond, and since the Form 105 Target failed to respond in the time period set by Mr. Tuner, then the obligation is determined, the Doctrine of Res Judicata is established, and invoked by Mr. Turner as the basis for having a claim not subject to a bona fide dispute.
The court refers to this unilaterally created private procedure by which Mr. Turner makes demand on the Form 105 Target, sets a deadline for the Form 105 Target to respond, and that upon failure to respond the alleged obligation is then determined to be owed to Mr. Turner as the "notice and demand to respond process."
Mr. Turner does not provide an explanation as to how the cited International Bill of Rights governs the Bankruptcy Law as enacted by Congress. The court has addressed in the Initial Order and Decision the claim requirements for a person to qualify as a creditor to commence an involuntary bankruptcy case. With respect to the Bankruptcy Code, other than making reference to it, Mr. Turner does not provide any further analysis in response to the Initial Order and Decision.
Mr. Turner cites the Doctrine of Res Judicata and directs this court to a series of decisions, which the court reviews below.
A. Matchett v. Rose , 36 Ill. App.3d 638, 344 N.E.2d 770 (1976)
In Matchett , the Illinois appellate court considered the application of the Doctrine of Res Judicata under Illinois law, beginning with the initial requirement that: "It is fundamental to the invocation of the res judicata doctrine in a subsequent proceeding that the question be presented and adjudicated on the merits by a court of competent jurisdiction in the first proceeding between the parties. ( People v. Kidd , 398 Ill. 405, 75 N.E.2d 851 (1947).)" Mr. Turner does not assert that there is a "court of competent jurisdiction" which has issued a judgment or final order establishing the asserted claim. Mr. Turner only references his personal notice and demand to respond process.
B. Allen v. McCurry , 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980)
In Allen , the United States Supreme Court addressed that Court's denial of a petitioner's multiple requests to proceed in forma pauperis . The request to proceed in forma pauperis was based on then Supreme Court Rule 46.1. The Supreme Court affirmed its decision to not let the petitioner proceed in forma pauperis . It is not clear why this case is cited in the discussion of Res Judicata or why it is applicable to the fee mandated by Congress to be paid (and which fee is not one that is included in the applicable Federal Code and Rules for fees that may be waived in bankruptcy court proceedings).
C. Randone v. Appellate Department , 5 Cal.3d 536, 96 Cal.Rptr. 709, 488 P.2d 13 (1971)
In Randone , the California Supreme Court addressed fundamental Due Process rights as they related to a state court issuing a writ of attachment. Absent a countervailing state interest, a court shall not order the taking, or liening, of property of another without notice.
Mr. Turner does not explain the support that Randone provides for his arguments concerning Res Judicata or that his basis for asserting a claim - the Mr. Turner private notice and demand for response process - establishes a claim under the Bankruptcy Code. In fact, given that the fundamental impact of commencement of a bankruptcy case is to deprive a person of his or her property – all real and personal property (with several limited exceptions) being immediately and automatically transferred into the bankruptcy estate ( 11 U.S.C. § 541 ) – it is Mr. Turner who is seeking to deprive the Form 105 Target of his property without hearing. Rather, Mr. Turner seeks to have it occur because: (1) Mr. Turner asserts he has a claim, (2) the claim is based on Mr. Turner's private notice and demand for response, and (3) Mr. Turner seeks to commence an involuntary bankruptcy case. This is contrary to Randone and shows that Congress needed to be very careful in structuring the involuntary bankruptcy law.
D. Mullane v. Central Hanover Trust Co , 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950)
In Mullane , the U.S. Supreme Court addressed some of the basic requirements of Due Process and the adjudication of judicial proceedings. The Supreme Court was considering when public notice of a judicial proceeding was sufficient and when actual personal notice and service was required. In Mullane , for the New York Statute at issue, the Supreme Court concluded that mere notice of a judicial proceeding was not sufficient. Rather, under those facts, there have been actual service of notice and the pleadings for there to be a judicial adjudication of the rights of the parties. As discussed in connection with Randone , for the $40,000,000 asserted claim by Mr. Turner against the Form 105 Target, there are no judicial determinations or proceedings relating to the asserted claim. Mullane does not provide authority for Mr. Turner asserting that his extra-judicial, privately created, unilateral notice and demand to respond process are binding in judicial proceedings.
Res Judicata in Federal Court
The Ninth Circuit Court of Appeal has addressed the requirements for the application of the Doctrine of Res Judicata to a subsequent adjudication in Robertson v. Isomedix, Inc. (In re International Nutronics ), 28 F.3d. 965, 969 (9th Cir. 1994).
The doctrine of res judicata bars a party from bringing a claim if a court of competent jurisdiction has rendered final judgment on the merits of the claim in a previous action involving the same parties or their privies. In re Jenson , 980 F.2d 1254, 1256 (9th Cir. 1992). "Res judicata bars all grounds for recovery that could have been asserted, whether they were or not, in a prior suit between the same parties on the same cause of action." Clark v. Bear Stearns & Co. , 966 F.2d 1318, 1320 (9th Cir. 1992) (emphasis added).
The initial requirement for Res Judicata to apply is that there be a prior final judgment "of a court of competent jurisdiction." This is consistent with the discussion of the Doctrine of Res Judicata in federal court by the Supreme Court in Commissioner v. Sunnen , 333 U.S. 591,597, 68 S.Ct. 715, 92 L.Ed. 898 (1948) (emphasis added), that:
The general rule of res judicata applies to repetitious suits involving the same cause of action. It rests upon considerations of economy of judicial time and public policy favoring the establishment of certainty in legal relations. The rule provides that when a court of competent jurisdiction has entered a final judgment on the merits of a cause of action , the parties to the suit and their privies are thereafter bound "not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose." Cromwell v. County of Sac , 94 U.S. 351, 352, 24 L.Ed. 195 [ (1876) ]. The judgment puts an end to the cause of action, which cannot again be brought into litigation between the parties upon any ground whatever, absent fraud or some other factor invalidating the judgment.
Here, Mr. Turner cites to no prior judgment of a court of competent jurisdiction, but just to his personally created notice and demand to respond process.
Mr. Turner further asserts that because the Form 105 Target did not respond as demanded by Mr. Turner in his personally created "demand to respond" procedure, then the Form 105 Target has waived his Due Process rights. No legal authority provided supports the contention that the failure to respond in response to Mr. Turner's personally created notice and demand to respond process is the basis for forfeiture of Due Process rights.
Mr. Turner has not provided the court with legal authorities or evidence of his having a claim that is not subject to a bona fide dispute as to liability or amount. Mr. Turner does not qualify as a "creditor" to commence an involuntary petition against the Form 105 Target. The court has incorporated herein its analysis in the Initial Order and Decision (Dckt. 1).
The involuntary bankruptcy law is not a "forum choice" strategy that someone who asserts that another owes an obligation can go straight to enforcing the alleged obligation by dumping the target debtor into bankruptcy to strip away the target debtor's assets into a bankruptcy estate for liquidation. Mr. Turner has access to the California Superior Court and the United States District Court (to the extent that a basis for federal jurisdiction exists) to file a complaint to assert and diligently prosecute adjudication of his assertion that the Form 105 Target owes him $40,000,000.00.
Basis for Asserted Lien
For the legal foundation for asserting the existence of a lien, Mr. Turner directs this court to the well know U.S. Supreme Court decision Sniadach v. Family Finance Corp. , 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). In Sniadach , the Supreme Court was addressing the propriety of a prejudgment lien imposed by a court of competent jurisdiction. The prejudgment lien was based upon Wisconsin statutes. The Supreme Court concluded that the application of Wisconsin law to allow for the creation of a judicial lien by a court of competent jurisdiction was not proper under the circumstances of that case because the defendant obligor was not afforded notice and opportunity to address, prior to issuance of the judicial lien, the propriety of the issuance of such a lien by the court of competent jurisdiction.
Nothing in Sniadach provides the basis for Mr. Turner asserting that he has a lien based on his privately created notice and demand to respond process. The quote from Sniadach relied upon by Mr. Turner is a statement made by the Wisconsin Supreme Court that is cited in the dissent of Justice Black. The Wisconsin Supreme Court and its reference to the law of "medieval England [and] ... Roman times" is what was overruled in Sniadach by the U.S. Supreme Court.
Mr. Turner has not provided the court with legal authority or evidence of his having a lien in any property of the Form 105 Target.
Assertion That Citations to U.S. Codes Is Void
Mr. Turner then asserts that he gives "Notice" that any citation to the United States Code is void and this court is without authority pursuant to Article 1, § 7 of the Constitution. Article I, § 7 of the United States Constitution provides: (1) all bills for raising Revenue shall originate in the House of Representatives; (2) the power of the President to veto bills passed by the Legislature and the Legislature's power to override the veto; and (3) that the Senate and the House may override the President's veto by a two-third vote of each. This does not provide a basis for rendering the United States Codes void or there being no authority of the federal court to apply such laws enacted by Congress.
Mr. Turner also cites to Toledo Newspaper Co. v. U.S. , 247 U.S. 402, 38 S.Ct. 560, 62 L.Ed. 1186 (1918), in asserting that the U.S. Code is void and this court is without authority to issue the ruling it previously did. The portion of the Toledo Newspaper decision referenced by Mr. Turner relates to the power of the federal courts, both inherent and statutory, to punish persons for contempt. Such power is exercised for "misbehavior" (statutory term) in the presence of, or so near thereto, to obstruct the administration of justice. Id. at 418, 38 S.Ct. 560.
Though Mr. Turner may feel he is being "punished" because of the court's reading, analysis, and application of the law, evidence, and assertions presented, there is no punishment. The court is applying the law as written by Congress for who qualifies as a "creditor" to have standing to commence an involuntary bankruptcy case.
Concern That Prior Decision Was "Not for Publication"
As part of his discussion asserting that the court is depriving him access to the court because it does not commence the involuntary bankruptcy case as demanded by Mr. Turner, he states:
My — Petition speaks for itself. The Constitutional requirement was asserted from the outset. You are trying to change that and convince me you have the authority to do so. Is this why its not published."
Response Pleading, p. 3:7-10; Dckt. 7.
The court's Initial Order and Decision, Dckt. 1, has at the top "NOT FOR PUBLICATION ." This is not a designation that it is a secret, undisclosed ruling. Rather, when an order or other decision is marked "For Publication," it designates that the judge(s) or justices believe that it presents an advancement of existing law, addresses a new area of the law, establishes new law, or provides a discussion of existing law which would warrant citation by other courts.
Though marked "Not for Publication," the order is included in the listed opinions for the undersigned judge on the court's website. This is the same as the court has done with several other incarcerated persons who sought to commence involuntary bankruptcy cases against wardens, correctional officers, or persons working in prison hospitals. In addition to being available on the website, these "Not for Publication" decision can be picked up by legal reporting services such as LEXIS and Westlaw.
The court notes that Mr. Turner's reference to the "Not For Publication" designation caused the court to review the website and discover that it had not yet been posted. This appears to have arisen due to a clerical error relating to there being four rulings to be posted at the same time. Before issuing this Ruling, the court confirmed that the January 24, 2020 filed order is posted to the court's website. Additionally, the court expressly designates this Ruling "For Publication" to ensure that Mr. Turner does not fear that the denial of his request to commence an involuntary bankruptcy case for the Form 105 Target is being done "under the radar."
Certifications
The Response Pleading concludes with a series of Certifications by Mr. Turner, which the court accepts as his testimony as if it were provided in a declaration. He testifies as to his personal knowledge and that he is authorized to file the Response Pleading. His statements include: (1) his position that he has substantial interest in the involuntary petition and the relief thereunder; (2) that a failure of the Form 105 Target to answer the involuntary bankruptcy case may jeopardize or damage his rights to liberty and property; and (3) he wants to exercise his right to be present at all hearings.
DECISION
The court has considered the Response Pleading, the Form 105 and attached documents (Dckt. 2), and the Request for Notice of Motion for Mandatory Judicial Notice and attached documents (Dckt. 5). The additional materials and authorities presented, and the re-review of the original documents filed, do not change the court's conclusion as stated in the Initial Order and Decision (Dckt. 1) that Mr. Turner does not meet the requirements for being a "creditor" to have standing to commence an involuntary bankruptcy case against the Form 105 Target. Additionally, Mr. Turner does not provide a basis for being exempt from paying the statutory filing fee for commencing an involuntary bankruptcy case. His promise to pay sometime in the future, even if he calls it a "bond," is not payment of the filing fee.
No basis has been given for the court vacating or amending its Initial Order and Decision. The court incorporates herein as part of this Decision its Initial Order and Decision (Dckt. 1) by this reference.
ORDER
Therefore, upon review of the Response Pleading (Dckt. 7), the Form 105 and attached documents (Dckt. 2), the Request for Notice of Motion for Mandatory Judicial Notice and attached documents (Dckt. 5), and the Initial Order and Decision (Dckt. 1); consideration of the legal authorities cited by Mr. Turner and applicable law; and good cause appearing;
IT IS ORDERED that no modification, amendment, or other change is made to this court's Initial Order and Decision.
The consideration of the Form 105 submitted to the court is concluded, no involuntary bankruptcy case is commenced, and the Clerk of the Court shall maintain this Miscellaneous File for Steven Deon Turner.