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John Doe
c/o 123
Oak Street
Anytown
State USA
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In Pro Se
FILE ON DEMAND
FOR THE RECORD
SUPERIOR COURT OF CALIFORNIA
ORANGE COUNTY
NEWPORT BEACH
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People of
California,
Plaintiff,
vs.
John Doe, Inhabitant of California Republic state
Defendant.
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Case No.
12345678
Citation #
100000001
VERIFIED, GOOD
FAITH OFFER TO PAY PLAINTIFF WHAT IS DUE
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Judge
Judy
COMES NOW, Defendant John Doe hereby makes this good-faith Offer to
Pay to the above-named Plaintiff, ____________, the total amount due, with interest, upon a timely reply noting the
latest total amount due, after a Notice and a timely clarification, and
judicial determination of the “thing” required of her to be tendered as
“payment,” by this Honorable YOUR COURT NAME COURT of Record.
Defendant John Doe needs the timely answers to the
following three very material questions, before he can lawfully make the
subject court ordered “payment,” to wit:
1.
Please identify the actual “thing” or “substance”
this California YOUR
COURT NAME Court of Record “requires”
and can lawfully require, for such “tender” of “Payment”, AND
2.
Please identify the “California Constitutionally
valid authority” in which this California YOUR COURT NAME Court
of Record MAY lawfully “require,” as such above-mentioned “thing” or
“substance” to be submitted regarding the actual “tender” of such “Payment”.
3.
Is the above stated “thing” required by this
California ORANGE CO
JUSTICE Court of Record as stated above
the same as required by all other YOUR COURT NAME Court of California Orders, and Judgments?
So there is no misunderstanding, the undersigned clearly desires that the
receiver(s) of this document clearly understands that what the undersigned MAY
“tender” as a “Payment” is NOT the questions hereinabove presented, but what
the laws of the State of California
lawfully recognizes as its MONEY OF ACCOUNT, for all of its California Court of Record
proceedings.
MATERIAL STATEMENT OF FACT
There is some
valid confusion about what this California
Superior Court of Record, may lawfully “require” regarding the subject issue,
since the year 1968. (See discussion below).
It appears
that in 1968, the United States [government,] completely removed and eliminated the specific “Medium of
Exchange” that the State of California
then, AT THAT TIME, clearly specified, and does currently, as of the date of
this document, clearly specifies, as its “MONEY OF ACCOUNT” for itself and all
of its Political Sub-divisions,
Offices, Agencies, Boards, Branches, Bureaus, Departments, Divisions,
Administrative Law Tribunals to wit:
“The MONEY OF ACCOUNT of the State of
California AND ALL COURT
PROCEEDINGS, shall be had and held in the [precise] form of the [silver] Dollar, [copper] Cent and [copper] Mill”.
[the old historic Mill being 1/10th
of a Cent] (Emphasis added)
It also
appears that this specifically identified Federal “MONEY OF ACCOUNT” is the
only “thing” this California
Superior Court of Record may lawfully “require”
regarding a lawful “Payment” of ANY court ordered judgment. If the receiver of this timely and lawful
“Offer to Pay in the nature of a U.C.C. Presentment” can find and cite any California Constitutionally valid
authority that clearly specifies some OTHER “Medium of Exchange” that would
constitutionally qualify as the above cited California “MONEY OF ACCOUNT”, he or she will be the first State
or Federal public servant to do so. As
of the date of this document, there have been many California Political
Sub-divisions, Offices, Agencies, Boards, Branches, Bureaus, Departments,
Divisions, Administrative Law Tribunals, and California Constitutional –
Judicial Department – Courts of Law, that have NOT been able to find any
such California Constitutionally
valid authority ANYWHERE.
FULL FAITH AND CREDIT - EQUAL STANDING
Under the
principle of Equal Standing that is honored by all states, this specific “MONEY
OF ACCOUNT” designation appears not only in today’s California Government
Code, Section 6850 (supra), but it is also cross-referenced in that
sections “Historic note” as also being located in the historic 1872 California
Political Code, at Chapter XII, Section 3272. More research has also found the same
mandated MONEY OF ACCOUNT, located in the even more ancient and historic 1850
California Statute, No. 41.
AT THE TIME
of the creation of the above-cited earlier citations there were NO Federal
Reserve Notes, Check Book Money, or Credit Card Money. Since the precise wording of these
three different California Authorities IS THE SAME, it appears that such
California “MONEY OF ACCOUNT” has never
been changed from its inception as cited in the original 1850 California
Statute No. 41, all the way through today’s newest California Government
Code, Section 6850.
Because of
its historic past, and the precise legal definitions OF THE DAY, it appears
that the “intent of the original law maker” was that the subject
“MONEY OF ACCOUNT” - “Dollar”, “Cent” and “Mill”, is specifically identified to
be the old, original, historic, [solid silver] “Dollar”, a coin of 371.25
[4/16] grains of .999 fine silver, the old [solid copper] “Cent” and the very
old [solid copper] “Mill”.
This historic
“fact of law” presents a real problem to today’s California Tribunals as such specifically defined Federal “MONEY
OF ACCOUNT” is NOT NOW “current” as a specific “currency” or “legal tender” of
today, nor is it even currently available in today’s banks to the general
public at large.
MONEY OF ACCOUNT vs.
MEDIUM OF EXCHANGE
There appears
to be only two basic legal phrases that relate to the topic of “money” or
“units” available and daily used “as money” in United States of America
Law. They are the specific United States
[government] MONEY OF ACCOUNT” ,
as clearly specified in the Coinage Act of April 2, 1792, at Section 20, to
wit:
“And
be it further enacted, That the money of account of the United States
shall be expressed in dollars or units, dimes or tenths, cents
or hundreds, and mill's or thousands, a dime being a tenth part of a
dollar, a cent the hundredth part of a dollar, a mill the thousands part of a
dollar, and that all accounts in the public offices AND ALL PRODEEDINGS IN
THE COURTS OF THE UNITED STATES shall be kept and had in conformity to this
regulation". (Emphasis
added);
vs. the much larger and
older subject identified universally as a “MEDIUM OF EXCHANGE”.
HISTORIC PERSPECTIVE
Over the
past many years, since America’s beginning, it is clear that the American
People, in general, have used many “Mediums of Exchange” to conduct their own
personal and private trade, exchange, barter, and business. They have used such “things” as eggs,
chickens, ducks, lumber, Green Back Dollars, Silver Certificates, US Treasury
Notes, United States Notes, Demand Notes, Legal Tender Notes, Interest Bearing
Notes, Federal Reserve Notes, Credit Card money, Check Book money, Sea Shells,
Beads, Tobacco, Gun Powder, trinkets, and Wampum. Today, an exchange of a Roto-tiller for a
Lawnmower makes the Roto-tiller a “Medium of Exchange”, but such “thing” and
none of the above mentioned MEDIUM’S OF EXCHANGE, have ever been lawfully, or
constitutionally considered as the MONEY OF ACCOUNT of the United States
[government] or the State of California. Also, none of the above “MEDIUMS OF EXCHANGE”
are today, considered a value “at par” with such specifically defined United
States [government] or State of California
“MONEY OF ACCOUNT”.
THE TRUE AND LAWFUL UNITED STATES DOLLAR
It
therefore appears that today’s current United States [government] and State of California MONEY OF ACCOUNT still specifically
identifies the United States [solid silver] Dollar. It also appears that the United States Dollar
is only defined and clearly specified in the Coinage Act of April 2, 1792
(supra) and NOWHERE ELSE. Therein the
United States Dollar was and still is clearly specified as an extremely precise
weight or measurement of a metallic substance in the particular form and weight
of a “coin”. It is the “Dollar”
specified in the Coinage Act of April 2, 1792, cited above that clearly
mandates that it is the only “thing” that can be required in ALL United States
District Court and State of California
proceedings and actions as mentioned above.
The
historic phrase “Sound as a Dollar” comes to mind as a comparison to today’s
many different Mediums of Exchange, and their daily fluctuation with the
commercial world markets. Some people
even buy and sell today’s private Federal Reserve Notes – erroneously called
“Dollars”, for a “profit or loss” through a procedure known as Arbitrage. Arbitrage did not exist when the truly
defined “United States Dollar” was based on the .999 fine SILVER STANDARD and
when the phrase “Sound as a Dollar” had true meaning. Today, it takes exactly thirty (30) Federal
Reserve Notes to purchase a non-collectable, standard United States Silver
Dollar in a coin shop. In other words,
it is a fact that there has been a 3,000% devaluation of what the American
people use “as money” and erroneously call a “Dollar”, just since 1968 when the United States
Government, itself only, went off what was known as “the silver STANDARD”.
The
“silver STANDARD” has always existed and still exists, and is still a valid
measurement of the value of silver and silver based coins, but it no longer
effects the value of any United States “legal tender” paper, fiat money. This is the simple reason that today’s
People, including those reading this document, earn more money in the form of
numbers, but that the so-called “money” doesn’t go as far as it did in 1968.
The
undersigned is therefore genuinely confused as to what this California Superior Court of Record
can lawfully “require” regarding its requested “Payment” of the subject alleged
amount due, as none of the above “Mediums of Exchange” are even remotely
considered “at par” today with the historic and specific United States
“Dollar,” “Cent”, and “Mill” as clearly specified in the California Government Code, Section 6850, and the United
States Coinage Act of April 2, 1792 A.D.
The undersigned has learned that “cash” in the form of
today’s private Federal Reserve
Notes are NOT NOW, nor have they EVER been considered as the “MONEY OF ACCOUNT”
of the State of California, or
its Political Sub-divisions, Offices,
Agencies, Boards, Branches, Bureaus, Departments, Divisions, Administrative Law
Tribunals, and Constitutional, Article VI, Judicial Department – Courts of
Record, are “required” to “receive” them if “tendered”. Private Federal Reserve Notes have NEVER been
considered as “Lawful Money of the United States”, pursuant to the Coinage Act
of April 2, 1792, the Coinage Act of 1968 or 12 USC, Section 152.
It is
hereby stipulated that private Federal Reserve Notes have been designated as
“legal tender” for all debts public and private, but that designation only
places a burden on the receiver “to receive” them, and places absolutely no
burden on the one who may “tender” such as
a “Payment”. It is therefore understood
by the undersigned that “cash” in the form of today’s private Federal Reserve
Notes, cannot, and does not lawfully qualify as, or is at par with, the
specifically designated “MONEY OF ACCOUNT” of the State of California clearly designated as – the
“Dollar,” “Cent,” and “Mill”.
It
should be noted that historically, even the old “Silver Certificate” which was
invalidated in 1968, was NEVER lawfully considered as a United States “Dollar”. It clearly was merely a “certificate” that
only “certified”, as thereon stated, that there was a United States [solid
silver] “Dollar” in the Treasury of the United States of America - Payable to
the Bearer on Demand”. In other words,
it merely “certified” that there was a real United States [solid silver]
“Dollar”, way over there, at the Treasury of the United States. It, therefore, was NOT a United States
“Dollar” itself. It was merely a “Dollar
Bill” that was to be presented, AS A BILL,” for “Payment” of a real United
States [solid Silver] “Dollar”, and that presentment action was to be done at
the Treasury of the United States of America.
Of course that is not possible today, nor since 1968.
The undersigned hereby declares that she has herein tendered
this VERIFIED, GOOD FAITH OFFER TO PAY
the subject amount alleged to be due by an officer, agent, or employee of the California Superior Court of Record,
AND WILL AGAIN DO SO IMMEDIATELY AFTER this Honorable California ORANGE CO JUSTICE Court of Record it makes the “thing”
or “substance” of such “MONEY OF ACCOUNT” more definite and certain on the
record, as to what it can lawfully “determine” as a lawful “Payment”.
Also, in
addition, in House Joint Resolution No. 192, of the 73rd Congress, 1st Session, Approved June 5, 1933, @ 4:30 p.m (See MEMORANDUM OF
LAW BELOW) the Congress of the United States [government] made it impossible
for We the People to “Pay” for any obligations or “debts” leaving only the
remedy to merely “DISCHARGE” such obligations and “debts”.
American
Jurisprudence also clearly states that only Silver and Gold Coin may be used as
a “Payment” of a “debt”, and that all other forms of “legal tender” may only be
used to “discharge” [not pay] a “debt”. When one thinks he or she has “Paid” off
their house mortgage, the document issued is clearly identified as a MORTGAGE
DISCHARGE. Any American Title Company
will confirm the difference between a “Payment” of a mortgage, and a
“DISCHARGE” of a mortgage.
Request
is hereby made for the receiver(s) of this document to timely look up, know,
and understand the legal meanings of the words “Payment”, “Discharge”, “Dollar”
and “Debt” in order to clearly know and understand this VERIFIED, GOOD FAITH OFFER TO PAY and the PAYMENT OF THE DEBT vs.
DISCHARGE OF THE DEBT issues presented herein.
Again,
the undersigned hereby respectfully requests the California Superior Court of Record to make the “MEDIUM OF
EXCHANGE” to be used as a “lawful Payment” for the subject alleged amount due,
more definite and certain, as time is of the essence.
The
undersigned respectfully requests this valid sought-after information to be
timely presented to the name and the location mentioned below within a
reasonable ten (10) days as time is of the essence.
If there is a
default and a dishonor of this timely VERIFIED
GOOD FAITH OFFER TO PAY, it will be noted, and the alleged Amount Due, will
be deemed to be fully “DISCHARGED” as a function of law as clearly provided in
both today’s Stare Decisis, and today’s Uniform Commercial Code.
Signed by the voluntary act of my own hand on this
eighteenth day of the twelfth month, in the year two thousand and Twelve, Anno
Domini, in the Two-Hundred and thirty-sixth year of the Independence of
America.
John Doe,
Authorized Representative
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VERIFIED DECLARATION Of John Doe
AND DEMAND FOR TIMELY RESPONSE
DECLARATION OF FACTS
1.
I am over the age of twenty-one
years, have personal knowledge of the matters stated herein, and hereby offer
to be a witness to which I can and will competently testify regarding the
written Facts contained in this Affidavit.
2.
In the Coinage Act of 1968, the
United States government went off of the “Silver Standard”.
3.
In the Coinage Act of 1968, the
act of the United States [government] going off of the Silver Standard, did not
invalidate the centuries old Silver Standard.
4.
By going off of the Silver
Standard, with the Coinage Act of 1968, the United States [government]
invalidated the MEDIUM OF EXCHANGE used for its own MONEY OF ACCOUNT for itself
and all United States Court proceedings.
5. The MEDIUM OF EXCHANGE used for THE MONEY OF ACCOUNT of the United States
of America is found in the Coinage Act of April 2, 1792, at Section 20, to wit:
“And be it further enacted, That the money
of account of the United States shall be expressed in dollars or
units, dismes or tenths, cents or hundreds, and milles or
thousands, a disme being a tenth part of a dollar, a cent the hundredth part of
a dollar, a mille the thousands part of a dollar, and that all accounts in
the public offices AND ALL PROCEEDINGS IN THE COURTS OF THE UNITED STATES
shall be kept and had in conformity to this regulation". (Emphasis added)
6. The MEDIUM OF EXCHANGE used for THE MONEY OF ACCOUNT of the State of
California, is clearly specified in California Government Code, Section 6850,
to wit:
“The MONEY OF ACCOUNT of the State of California and all Court
proceedings, shall be had and held in the [precise] form of the [silver] Dollar, [copper] Cent and [copper] Mill”.
[the old historic Mill being 1/10th
of a Cent] (Emphasis added)
7.
The MEDIUM OF EXCHANGE for the
MONEY OF ACCOUNT of the United States [government], and the State of California
has NEVER been redefined and remains the same as stated above.
8.
The only American law that ever
defined the American dollar was the Coinage Act of April 2, 1792.
9.
The Coinage Act of April 2, 1792,
clearly defined the American dollar as a very precise weight and grade of
Silver stamped in the form of a coin, with a serrated edge to discourage
whittling of the precious metal thus devaluing the coin.
10.
The smallest unit of American
measurement was and is the “grain”, as compared to a “grain of wheat”.
11.
From the beginning, there have
always been 480 grains to equal and American ounce.
12.
The American dollar was patterned
after the old Spanish Milled Dollar that had been used in the thirteen American
colonies for many years.
13.
To create the American Dollar
with the same (silver content) value as the old Spanish Milled Dollar, the
American government weighed a large amount of Spanish Milled Dollars, to
determine the average weight of such money.
14.
It was determined that the
average Spanish milled a dollar weighed the equivalent of 371.25 grains of pure
silver.
15.
The Coinage Act of April 2, 1792,
thereafter mandated that the new American dollar would weigh exactly and
precisely 271 and 4/16 grains of pure silver. (That’s a weight equal to a grain
of wheat divided into 16 precise and equal parts.)
16.
The above stated weight, and a
case that the American government further divided weight of a grain into
sixteen equal and minute subparts.
17.
The Coinage Act of April 2, 1792,
at Section 9, clearly identified the penalty for those working at the mint for
debasing the American dollar with a weight less than specified, for the purpose
of personal profit or gained, or otherwise with a fraudulent intent, . . . “every such officer or person who
shall commit any or either of the side offences, shall be guilty of felony, and
shall suffer death."
18.
Each coin minted with a value above
a half dime was to have a serrated edge to discourage the unlawful whittling,
and related reduction in a specific and declared weight of the American coins.
19.
All of the American coins were to
be made and with a precise finance of a precious metal, whether Gold or Silver.
20.
All of the American coins that
were made with a precise fineness of a precious metal were defined as a money
of “specie”.
21.
All paper money printed and used
in the United States that were and are not backed by a precious metal coin are
known today as “Fiat money”.
22.
All of today’s nickel-copper
“clad” coins minted and used in the United States that were and are not backed
by a precious metal, were and are also known as “Fiat money”,
23.
The Constitution for the United
States of America, at Article I, Section 8, gave the United States Congress the
authority to: “Coin
Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of
Weights and Measures."
24.
There is absolutely no provision
in today’s Constitution for the United States of America for the printing of
paper money.
25.
The just weights for American
money was established by Congress, within the various coinage acts, by fixing
and regulating the quantity and fineness of gold and silver at a dollar weight
or dime weight contained. Thus, when a
silver coin labeled “one dollar” exchanges hands, both parties readily
understand exactly what the “medium of exchange” is and the precise amount of
silver they have traded.
DECLARATION OF PERSONAL DISCLAIMER
AND CAVEAT
The undersigned, John Doe, also declares that he is not an
expert in law, but however does know right from wrong. That if there is any human damaged by any
statements herein, DEMAND is hereby made for him or her to inform the
undersigned, by stated and provable facts, and John Doe will then sincerely
make every effort to change his truly and sincerely held understandings and
beliefs as stated in the hereinbefore presented DECLARATION OF FACTS STATEMENT.
I, the
undersigned, thus hereby and herein reserve the right to amend and make
subsequent amendments to this document as necessary in order that the True
Ultimate Facts may be timely ascertained.
If any party given notice by means of
this document has valid information that would controvert and overcome the
subject DECLARATION OF FACTS as shown in this good faith DECLARATION OF FACTS
STATEMENT, DEMAND is hereby made for them to timely advise the undersigned, IN
WRITTEN, in AFFIDAVIT FORM, WITHIN A
REASONABLE SEVENTY-TWO (72) HOURS from receipt thereof, providing the
undersigned, with a valid and timely Counter Affidavit, providing and stating
with particularity, all requisite constitutionally valid law(s) and
authorities, not merely stating ultimate facts or conclusions of law, that this
DECLARATION OF FACTS STATEMENT is substantially and materially false,
sufficiently to change materially its factual declarations.
TIME IS OF THE ESSENCE
DUE
PROCESS NOTICE is hereby also given that the receiver of this document’s
silence will stand as consent to, and tacit approval of, the factual declarations
herein being established as fact, as a matter of law. Reserving ALL natural God-Given, Unalienable
(Un-lienable) Birthrights, Waving none, EVER. 28 U.S.C., Section 1746.
This
document is executed by the voluntary act of my own hand in San Bernardino
Township, in the State of California, and is dated this eighteenth day of the
twelfth month, in the year two thousand and Twelve, Anno Domini, in the
two-hundred and thirty-sixth year of the Independence of America.
John Doe,
Authorized Representative
MEMORANDUM OF
AMERICAN LAW
JUSTIFIABLY RELIED UPON
Notice the specific words
“Payment”, “discharge”, “dollar”, “money”, “legal tender”, and “debt”.
JOINT
RESOLUTION TO SUSPEND THE GOLD
STANDARD
AND ABROGATE THE GOLD
CLAUSE,
JUNE 5, 1933
H.J. Res. 192, 73rd Cong., 1st
Session
Whereas the holding of or dealing in
gold affect the public [government]
interest, and therefore subject to proper regulation and restriction; and
Whereas the existing emergency has disclosed that provisions of obligations
which purport to give the obligee a right to require payment in gold or
a particular kind of coin or currency of the United States, or in
an amount of money of the United States measured thereby, obstruct the
power of the Congress to regulate the value of money of the United States,
and are inconsistent with the declared policy of the Congress to maintain at
all times the equal power of every dollar, coined or issued by the
United States, in the markets and in the payment of debts.
Now, therefore, be it Resolved by the Senate and House of Representatives of
the United States of America in Congress assembled, That (a) every provision
contained in or made with respect to any [contractual] obligation which purports to give the
obligee a right to require payment in gold or a particular kind of coin or
currency, or in an amount in money of the United States measured thereby, is
declared to be against Public [government] Policy; and no such provision shall be contained in or made with
respect to any [contractual]
obligation hereafter incurred. Every [contractual] obligation, heretofore or hereafter
incurred, whether or not any such provisions is contained therein or made with
respect thereto, shall be discharged upon payment, dollar for dollar, in
any such coin or currency which at the time of payment is legal tender
for public [governmental] and
private debts. Any such provision contained in any law authorizing
obligations to be issued by or under authority of the United States, is hereby
repealed, but the repeal of any such provision shall not invalidate any other
provision or authority contained in such law.
(b) As used in this resolution, the term "obligation" means an
obligation (including every obligation of and to the United States, excepting
currency) payable in money of the United States; and the term
"coin or currency" means coin or currency of the United States, including
Federal Reserve notes and circulating notes of Federal Reserve banks and
national banking associations.
SEC. 2. The last sentence of paragraph
(1) of subsection (b) of section 43 of the Act entitled " An Act to
relieve the existing national economic emergency by increasing agricultural
purchasing power, to raise revenue for extraordinary expenses incurred by
reason of such emergency, to provide emergency relief with respect to
agricultural indebtedness, to provide for the orderly liquidation of
joint-stock land banks, and for other purposes", approved May 12, 1933, is
amended to read as follows:
"All coins and currencies of the
United States (including Federal Reserve notes and circulating notes of Federal
Reserve banks and national banking associations) heretofore or hereafter coined
or issued, shall be legal tender for all debts, for public
[governmental] and private, public charges, taxes, duties, and dues, except
that gold coins, when below the standard weight and limit of tolerance provided
by law for the single piece, shall be legal tender only at valuation in
proportion to their actual weight."
Approved June 5, 1933, 4:30 p.m.
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OFFER TO PAY
Memorandum
of California Law
California Civil Code, Section 1485.
Extinction of Obligation.
OBLIGATION EXTINGUISHED BY OFFER OF
PERFORMANCE. An obligation is
extinguished by an offer of performance, made in conformity to the rules herein
prescribed, and with intent to extinguish the obligation. (Enacted 1872)
“Tender is offer of performance made with intent to
extinguish obligation and when properly made his effect of putting other party
in default if it refuses to accept it.
Still
v. Plaza Marina Commercial Corp. (1971) 98 Cal.Rptr. 414, 21 C.A.3d
378.
California Civil Code, Section 1487.
Person required to make offer.
California Civil Code, Section 1488.
Procedure in making offer.
An
offer of performance must be made to the creditor, or to any one of two or more
joint creditors, or to a person authorized by one or more of them to receive or
collect what is due under the obligation, if such creditor or authorized person
is present at the place where the offer may be made; and if not, wherever the
creditor may be found. (Enacted
1872. Amended by Code Am.1873-74, c.
612, p. 240, Section 183.)
California Civil Code, Section 1489.
Place of
offer.
WHERE
OFFER MAY BE MADE. In the absence of an express
provision to the contrary, an offer of performance may be made, at the option
of the debtor:
1.
At any place appointed by the creditor; or,
2.
Wherever the person to whom the offer ought to be made
can be found; or,
3.
If such person cannot, with reasonable diligence, be
found within this State, and within a reasonable distance from his residence or
place of business, or if he evades the debtor, then at his residence or place
of business, if the same can, with reasonable diligence, be found within the
State; or,
4.
If this cannot be done, then at any place within this
State (Enacted 1872)
“Where
mortgagee is absent from the state during the period of redemption, the tender
to redeem must be made as required by the provision of this section that the
tender may be made at his residence or place of business, if the same can be
found, and, if not, at any place within the state”. (Emphasis added) Swain v. Jacks (1889) 57 P. 989, 125
C. 215.
California Civil Code, Section 1490.
Time of
offer.
WHEN OFFER MUST BE MADE. Where an obligation fixes a time for its
performance, and offer of performance must be made at that time, within
reasonable hours, and not before nor afterwards. (Enacted 1872)
“Where
considering the whole transaction, a mortgage is evidently intended, a tender
upon the exact day is not strictly necessary to preserve the rights of the
parties as to redemption”.
Pioneer
Gold Min. Co. v. Baker (C.C.1885) 23 F. 258,
California Civil Code, Section 1496.
Production
of thing to be delivered.
PRODUCTION
OF THING TO BE DELIVERED NOT NECESSARY.
The thing to be delivered, if any, need not in any case be actually
produced, upon an offer of performance, unless the offer is accepted”. (Enacted 1872)
“Where
there is no objection by payee to form of offer, and writing itself prescribes
no particular form, physical tender of money itself is unnecessary”.
Moriarty
v. Carlson (1960) 7 Cal.Rptr. 282, 184 C.A.2d 51.
“In
view of this section and Section 1501 declaring that all objections to the mode
of an offer which could be stated at the time to the person making the offer,
and could be then obviated by him, are waived unless then stated, in case of an
offer to pay money, actual production of it is waived unless demanded at the
time”.
Green
v. Barney (1894) 36 p. 1026, 4 C.U. 665.
California Civil Code, Section 1498.
Offer dependent upon performance of
conditions.
PERFORMANCE
OF CONDITION PRECEDENT. When a debtor is
entitled to the performance of a condition precedent to, or concurrent with,
performance on his part, he may make his offer to depend upon the due
performance of such condition. (Enacted
1872)
“Validity
of tender was not impaired by coupling with it demand for return of property
pledged as security, in view of Sections 1498 and 1504”.
Perry
v. Bank of Bakersfield (1918) 170 P. 415, 177 C. 206.
California Civil Code, Section 1501.
Time for objection to mode of offer.
OBJECTIONS
TO MODE OF OFFER. All objections to the
mode of an offer of performance, which the creditor has an opportunity to state
at the time to the person making the offer, and which could be then obviated by
him, are waived by the creditor, if not then stated. (Enacted 1872)
“Purpose
of this section requiring that person to whom tender is made must specify any
objection he has to tender is to allow debtor who is willing and able to pay
his debt to know what his creditor demands so that debtor may, if he wishes,
make conforming tender”.
Noyes
v. Habitation Resourses, Inc. (App. 2 Dist. 1975) 123 Cal.Rptr. 261, 49 Cal.App.3d
910, 82 A.L.R.3d 1192
“This
section and C.C.P. Section 2076, providing that objections to tender are waived
if not specifically made, must be read as though parts of same statute”.
Hind
v. Oriental Products Co. (1925) 235 P. 438, 195 C. 655.
“This
section is not restricted to objections to the thing offered, and the time and
mode of offering it, but applies also to objections to the conditions on which
the tender is made”.
Kofoed
v. Gordon (1898) 54 P. 1115, 122 C. 314.
“The
basis of the rule that objections to a tender not raised are deemed waived is
that ordinarily a party who makes an improper tender through no fault of his
own should be given an opportunity to correct it”.
Weinberg
v. Dayton Storage Co. (1942) 124 P.2d 155. 50 C.A.2d 750.
“If
creditor objects to mode of tender, it must be on ground that there is no
lawful offer of money.
Noyes
v. Habitation Resourses, Inc. (App. 2 Dist. 1975) 123 Cal.Rptr. 261, 49 Cal.App.3d
910.
“Where there is no objection by payee to form of
offer, and writing itself prescribes no particular form, physical tender of
money itself is unnecessary”.
Moriarty
v. Carlson (App. 2 Dist. 1948) 83 Cal.App.2d 745, 189 P.2d 51.
“A
creditor who objects to mode of an offer of performance, which creditor has an
opportunity to state, must so state it, if objection could have been obviated
by the other party, otherwise it will be waived”.
Hohener
v. Gauss (App. 2 Dist. 1963) 34 Cal.Rptr. 656, 221 Cal.App.2d
797.
“In
view of this section and Section 1496, which provides that, unless an offer of
performance be accepted, the thing to be delivered need not be actually
produced in case of an offer to pay money, actual production of it is waived
unless demanded at the time”.
Green
v. Barney (1894) 36 P. 1026, 4 C.U. 665.
“Creditor
may not remain silent regarding tender and later surprise debtor with hidden
objections thereto”.
Noyes
v. Habitation Resourses, Inc. (App. 2 Dist. 1975) 123 Cal.Rptr. 261, 49 Cal.App.3d
910.
California Civil Code, Section 1504.
Effect of offer on interest and incidents
of obligation.
EFFECT
OF OFFER ON ACCESSORIES OF OBLIGATION.
An offer of payment or other performance, duly made, though the title to
the thing offered by not transferred to the creditor, stops the running of
interest on the obligation, and has the same effect upon all its incidents as a
performance thereof. (Enacted 1872)
“Validity
of tender was not impaired by coupling with it demand for return of property
pledged as security, in view of Sections 1498 and this section”. (Emphasis
added.) Berry v. Bank of Bakersfield (1918) 170 P. 415, 177 C. 206.
“Where
a tender is made of the full amount due before suit is brought, and the tender
is kept good and brought into court, the judgement should be for plaintiff for
the amount tendered and for defendant for his costs.”
Curiac
vs. Abadie, (1864) 25 Cal 502.
“Tender
of amount of obligation must be duly made and in good faith to discharge
lien given as collateral security thereof.” (Emphasis added.)
Sondel
v. Arnold (1934) 39 P.2d 793, 2 C.2d 87.
“Tender
of mortgage debt with interest and title examination fee and mortgagee’s
refusal without objection discharged mortgage lien.” (Emphasis added.) Wiemeyer v. Southern
Trust & Commerce Bank (1930) 290 P. 70, 107 C.A. 165.
California Civil Code, Section 1511.
Causes
excusing performance.
The
want of performance of an obligation, or of an offer of performance, in whole
or in part, or any delay therein, is excused by the following causes, to the
extent to which they operate:
1.
When such performance or offer is prevented or delayed by the act of the
creditor, or by the operation of law, even though there may have been a
stipulation that this shall not be an excuse; however, the parties may
expressly require in a contract that the party relying on the provisions of
this paragraph give written notice to the other party or parties, within a
reasonable time after the occurrence of the event excusing performance, of an
intention to claim an extension of time or of an intention to bring suit or of
any other similar or related intent, provided the requirement of such notice is
reasonable and just;
3.
When the debtor is induced not to make it, by any act of the creditor
intended or naturally tending to have that effect, done at or before the time
at which such performance or offer may be made, and not rescinded before that
time. (Enacted 1872. Amended by Stats. 1968, c. 1730, p. 3888, §
1.)
California Civil Code, Section 1512.
Performance prevented by creditor.
If the performance of an obligation be prevented by
the creditor, the debtor is entitled to all the benefits which he would have
obtained if it had been performed by both parties. (Enacted 1872. Amended by Code Am. 873-74, c. 612, p. 240, § 184.)
California Code of Civil Procedure, Section 2074.
Rejected offer as equivalent to production and tender
of money, instrument, or property.
An
offer in writing to pay a particular sum of money, or to deliver a written
instrument or specific personal property, is, if not accepted, equivalent to
the actual production and tender of the money, instrument, or property. (Enacted 1872)
Under this section, where circumstances authorized the
use of mails, was effective when deposited in the mail and was equivalent to
tender on the mailing date.
State
v. Agostini (App. 1 Dist. 1956) 139 Cal.App.2d 909, 294 P.2d 769.
California Code of Civil Procedure, Section 2075.
Right to receipt for payment or delivery.
Whoever
pays money, or delivers an instrument or property, is entitled to a receipt
therefore from the person to whom the payment or delivery was made, and may
demand a proper signature to such receipt as a condition of the payment or
delivery. (Enacted 1872)
California Code of Civil Procedure, Section 2076.
Objections to tender; time;
specification.
The
person to whom a tender is made must, at the time, specify any objection he may
have to the money, instrument, or property, or he must be deemed to have waived
it; and if the objection be to the amount of money, the terms of the
instrument, or the amount or kind of property, he must specify the amount,
terms, or kind which he requires, or be precluded from objecting
afterwards. (Enacted 1872)
"The
rationale of the requirement of the specific objection is that the offeror
should be permitted to remedy any defects in his tender; the offeree is
therefore not allowed to remain silent at the time of the tender and
later surprise the offeror with hidden objections."
Thomassen
v. Carr, (1967) 250 C.A.2d 341; 58 Cal. Rptr. 297.
“Provisions
of this section concerning requirements for objections to tender applies when
tender is made”.
Canal-Randolph
Anaheim, Inc. v. Moore (App. 4 Dist. 1978) 144 Cal.Rptr. 474, 78 Cal.App.3d
477.
“This
section is liberally construed”.
Kofoed
v. Gorden (1898) 122 Cal. 314, 54 P. 1115.
“West’s
Ann.Cal.C.C.P. Section 2076, requiring objections to tender to be specified and
West’s Ann.Cal.Civ.Code Section 1501, providing that all objections to mode of
offer or performance are waived by creditor if not stated at time to person
making offer, should be read together”.
Sanguansak
v. Myers (App. 1 Dist. 1986) 223 Cal.Rptr. 490, 178 Cal.App.3d
110.
“West’s
Ann.Cal.C.C.P. Section 2076, and West’s Ann.Cal.Civ.Code Section 1501 are
primarily intended to protect debtors/offerors who perform or tender
performance in good faith from harm by creditors/offerees who refuse to accept
or intentionally fail to demand proper tender”.
Sanguansak v. Myers (App. 1 Dist 1986) 223 Cal.Rptr. 490,
178 Cal.App.3d 110.
“Purpose of statutes requiring that person to whom
tender is made must specify any objection he has to tender is to allow debtor
who is willing and able to pay his debt to know what his creditor demands so
that debtor may, if he wishes, make conforming tender”.
Noyes
v. Habitation Resourses, Inc. (App. 2 Dist. 1975) 123 Cal.Rptr. 261, 49 Cal.App.3d
910.
“Provision
of this section requiring person to whom tender is made to specify any
objection he has to money or be deemed to have waived it are for purpose of
informing debtor, who is willing and able to pay his debt, that he may if he
chooses, make offer conform.
Still
v. Plaza Marina Commercial Corp.
(App. 5 Dist. 1971) 98 Cal.Rptr. 414, 21 Cal.App.3d 378.
“If
creditor objects to mode of tender, it must be on ground that there is no
lawful offer of money.
Noyes
v. Habitation Resourses, Inc. (App. 2 Dist. 1975) 123 Cal.Rptr. 261, 49 Cal.App.3d
910.
“Where there is no objection by payee to form of
offer, and writing itself prescribes no particular form, physical tender of
money itself is unnecessary”.
Moriarty
v. Carlson (App. 2 Dist. 1948) 83 Cal.App.2d 745, 189 P.2d 51.
“A tender need not be kept good when it
appears that it will not be accepted”.
Hossom
v. City of Long Beach (App. 2 Dist. 1948) 83 Cal.App.2d 745, 189 P.2d 787.
“Rational
of requirement that offeree make specific objection to offeror’s tender or
waive objection to conditions imposed by offeror is that offeror should be
permitted to remedy any defects in his tender”.
Layton
v. West (App. 1 Dist. 1969) 76 Cal.Rptr. 507, 271 Cal. App.2d
508.
“The basis of the rule that objections to a tender not
raise are deemed waived is that ordinarily a party who makes an improper
tender, through no fault of his own, should be given an opportunity to correct
it”.
Weinberg
v. Dayton Storage Co. (App. 1 Dist. 1942) 50 Cal.App.2d 750, 124 P.2d 155.
“A
creditor who objects to mode of an offer of performance, which creditor has an
opportunity to state, must so state it, if objection could have been obviated
by the other party, otherwise it will be waived”.
Hohener
v. Gauss (App. 2 Dist. 1963) 34 Cal.Rptr. 656, 221 Cal.App.2d
797.
“Creditor
may not remain silent regarding tender and later surprise debtor with hidden
objections thereto”.
Noyes
v. Habitation Resourses, Inc. (App. 2 Dist. 1975) 123 Cal.Rptr. 261, 49 Cal.App.3d
910.
“Defendant,
not having objected to amount and terms of tender, cannot first urge on appeal
that tender was subterfuge”.
Weyse
v. Biedebach (App. 2 Dist. 1927( 86 Cal.App. 736, 261 P. 1092.
“Objections
to time and mode of tender, not having been made at time nor till trial, are
deemed waived”.
Smith
v. Lobb (App. 1917) 33 Cal.App. 790, 166 P. 1026.
“All
objections to a tender by personal check, cashier’s check or by money are
waived by the creditor if not then stated”.
Rose
v. Hecht (App. 2 Dist. 1949) 94 Cal.App.2d 662, 211 P.2d 347.
“By
failure to object to a tender as to the mode of the offer, the party to whom
the tender is made waives the grounds of the objections which he had an
opportunity to state at the time and which could then have been obviated by the
tenderer”.
Smith
v. Central & Pacifice Imp Corp. (App. 1 Dist. 1919) 45 Cal.App. 348,
187 P. 456.
Uniform Commercial Code, Section 3603 (b).
Tender of Payment.
“If
tender of payment of an obligation to pay an instrument is made to a person
entitled to enforce the instrument and the instrument is refused, there is
discharge, to the extent of the amount of the tender of the obligation of an
indorser or accommodation party having a right of recourse with respect to the
obligation to which the tender relates”.
Uniform Commercial Code, Section 3604.
Tender of Payment.
(1)
Any party making full tender of payment to a holder
when or after it is due is discharged to the extent of all subsequent liability
for interest, costs, and attorney’s fees.
(2)
The holder’s refusal of such tender wholly discharges
any party who has a right of recourse against the party making tender.
(3)
Where the maker or acceptor of an instrument payable
otherwise than on demand is able and ready to pay at every place of payment
specified in the instrument when it is due is equivalent to tender.
Operation of Law.
“Operation
of law means the practical effect of what the law is intended to be on the
subject”.
American
Bitumuls & Asphalt Co. v. U.S., Cust.Ct. 146 F.Supp. 703, 713, 714.
“In
its usual signification, “operation of law” is generally applicable to matters
involving title and refers to situations in which rights, and sometimes
liabilities, are created without actions by the parties; it is said also to
mean the obligation of law; or its practical working and effect”.
American
Bitumuls & Asphalt Co. v. U.S., Cust.Ct. 146 F.Supp. 703, 713, 714.
Default.
“Default. By
its derivation, a failure. An omission
of that which ought to be done. Town
of Milton v. Bruso, 111, Vt. 82, 10 A.2d 203, 205. Specifically, the omission or failure to
perform a legal or contractual duty, Easterwood v. Willingham,
Tex.Civ.App., 47S.W2d. 393, 395; to observe a promise or discharge an
obligation (e.g. to pay interest or principal on a debt when due), Bradbury
v. Thomas, 135 Cal.App. 435, 27 P.2d 402; or to perform an agreement,
Eastman v. Morgan, D.C.N.Y., 43 F.Supp. 637, 641. The term also embraces the idea of dishonest,
and of wrongful act, Greco v. S.S. Kresge Co., 277 N.Y. 26, 12 N.E.2d
557, 52; or an act of omission discreditable to one’s profession, Hilkert v.
Canning, 58 Ariz. 290, 119 P.2d 233, 236.”
Black’s Law Dictionary, Sixth Edition, page 417.
Discharge.
"As
applied to demands, claims, rights of action, incumbrances, etc., to discharge
the debt or claim is to extinguish it, to annul its obligatory force, to
satisfy it..."
Black't
Law Dictionary, Fourth Edition, page 549.
Tender.
Black's
Law Dictionary, 4th Edition, page 1637, "TENDER":
"The
offer of performance, not performance itself, and when unjustifiably
refused, places other party in default and permits party making tender to
exercise remedies for breach of contract”.
(Walker v. Houston, 215 Cal. 742, 12 P.2d 952, 953, 87 A.L.R. 937.) (Emphasis added)
VERIFICATION
MEMORANDUM OF LAW.
“Verification. Confirmation of correctness, truth, or
authenticity, by affidavit, oath, or deposition. Affidavit of truth of matter stated and
object of verification is to assure good faith in averments or statements of
party. Sheeley v. City of Santa Clara,
215 Cal.App.2d 83, 30 Cal. Rptr. 121, 123.
Sworn or equivalent confirmation of truth. For example, a verified complaint
typically has an attached affidavit of plaintiff to the effect that the
complaint is true. In accounting,
the process of substantiating entries in books of account.”
Black’s Law Dictionary, Sixth Edition, page 1561.
Federal rules of evidence RULE 902,
1(B), (8) EVIDENCE THAT IS SELF-AUTHENTICATING The following items of evidence
are self-authenticating; they require no extrinsic evidence of authenticity in
order to be admitted: (1) Domestic
Public Documents That Are Sealed and Signed. A document that bears:…
(B) a signature purporting to be an execution or attestation. (8) Acknowledged Documents. A
document accompanied by a certificate of acknowledgment that is lawfully
executed by a notary public or another officer who is authorized to take
acknowledgments. [When completing a
certificate of acknowledgment or a jurat, a notary public is required to
certify to the identity of the signer of the document. (Civil Code sections
1185(a), 1189, Government Code section 8202)
Identity is established if the notary public is presented with
satisfactory evidence of the signer’s identity. (Civil Code section 1185(a))] (Emphasis
added)
ATTESTATION BY VERIFIED DECLARATION
I, the undersigned,
declare that:
I have read the foregoing VERIFIED,
GOOD FAITH OFFER TO PAY PLAINTIFF WHAT IS DUE TO PLAINTIFF ORANGE County
California State Police, THE AMOUNT DUE, and know the contents thereof.
I am a party to the above entitled
action or proceeding, and certify that the matters stated therein are facts of
my own knowledge.
I declare under the penalty of perjury of the Laws of the
California Republic state and these
United States of the America, that the foregoing is correct and complete to the
best of my knowledge, information and belief, and that this verification is
executed by the voluntary act of my own hand in Boring Township and is dated
this eighteenth day of the twelfth month, in the year two thousand and Twelve,
Anno Domini, in the two-hundred and thirty-sixth year of the Independence of
the America.
John Doe
Authorized Representative
PROOF OF SERVICE BY
MAIL
IN RE: Case No.# 123456789, ORANGE County California State Police,
Plaintiff, vs. John Doe, Inhabitant of
California Republic state, Defendant. Citation # 1000000001, Re: VERIFIED, GOOD
FAITH OFFER TO PAY PLAINTIFF WHAT IS DUE,
In the California Republic state, of the ORANGE
county:
I, the undersigned, herein declare that I have reached
the age of majority and am NOT a party to the within entitled action.
I
hereby declare under the penalty of perjury of the California Republic state
and these United States of America,
that I served the foregoing document entitled VERIFIED GOOD FAITH OFFER TO PAY TO PLAINTIFF, ______________, THE
AMOUNT DUE, on the Defendant/Plaintiff by serving Plaintiff’s place of
business, on this ______ day of _____________, in the year two thousand and
twelve, addressed as follows:
Officer Ima Copp, ID
#:123449225
California State Police
__________________________________
__________________________________
__________________________________
Handed To:
________________________
I declare under the penalty of perjury of the Laws of the
California Republic state and these
United States of the America, that the foregoing is correct and complete to the
best of my knowledge, information and belief, and that this declaration is
executed by the voluntary act of my own hand in San Bernardino Township and is
dated this ______ day of _____________, in the year two thousand and thirteen,
Anno Domini, in the two-hundred and thirty-sixth year of the Independence of
America.
Signature
Printed
Name