Preview
Filing # 52978427 E-Filed 02/24/2017 07:35:17 PM
IN THE DISTRICT COURT OF APPEAL 187 DISTRICT
2000 DRAYTON DRIVE TALLAHASSEE, FLORIDA 32399-0950
TEL 850 488 6151
2-24-17
CASE NO. 1D17-0515
L.T. NO 2015-CA-4365
Walter P Jenkins. v. xxxx xxxxx as Tax collector
Apellant / Petioners Apellee/ Respondent
MEMORANDUM OF LAW FILED IN RESPONSE TO ORDER OF 1D 17-0515
ISSUED 2-20-17
AMENDED, PURE TRUST TRUSTEE CAN PROCEED PRO SE IN ANY
COURT
[emphasis added to all below]
FEDERAL CASES PREVENT STATE REGULATION OVER PURE TRUST
OR TRUSTEE AND FIND THE TRUSTEE IS NOT A SEPARATE ENTITY
FROM A PURE TRUST, BECAUSE IT IS NOT A SEPARATE ENTITY AS
ARE STATURORY TRUST INSTRUMENTS CREATED BY STATE
LEGISLATURE. INSTEAD, THE PURE TRUST IS CREATED IN COMMON
LAW ANDIS, “ CREATED BY THE INALIENABLE “RIGHT TO
CONTRACT” WHICH BARS STATES FROM ABRIDGING SUCH RIGHT.
SEE CASES BELOW. ( EMPHASIS ADDED )
“No state shall.....pass any bill or law impairing the law of contracts...U.S
Constitution , Article 1 section 10 1787
A PURE TRUST IS A CONTRACT IT IS NOT A LEGAL ENTITY
“A Trust organization created under the U.S. Constitutional right of contract
1
"2015 CA 004365" 52978427 Filed at Alachua County Clerk 02/27/2017 08:15:00 AM ESTcannot be abridged. The agreement, when executed creates a Federal
organization not under the laws passed by any of the (State) legislatures.”
Crocker v McCourt, 649 U.S. Sup. 39 at 270
PURE TRUST NOT A SEPARATE ENTITY FROM TRUSTEE & JS NOTA
STATUTORY FICTION AS ARE TRUSTS AND CORPORATIONS CREATED
BY THE LEGISLATURE
“The fact that a business trust is not regarded as a legal entity distinct from
it’s trustees, if a true trust... may result in this advantage to the trust, which a
corporation does not posses: The trust consist of Citizens, and who therefore
, are entitled to certain rights and immunities such as those guaranteed by the
privileges and immunities clauses of the Federal Constitution, which do not
apply to Corporations.” Morrisey v. Commissioner of of Internal Revenue,
296 US 344 (1935)
Business trusts are not entities apart from the trustees. Swartz v Sher, 344
Mass 636 184 NE2d 51.
a
“Such a Trust has no legal existence apart from it’s trustees,....” Fitch v
United Royalty Co. 143 Kan 486 55 P2d 409 .
“A Pure Trust is not subject to legislative control. The court holds that the
Trust ...is not subject to legislative restriction as are corporations and other
statutory entities created by legislative authority. ““ Crocker v MacCloy,
649 U.S. Supp 39
A pure trust is a contractual relationship in trust form. Berry v McCourt 204
N.E. 2" 235 (1965)
“A Trust organization created under the U.S. constitutional right of contract
cannot be abridged. The agreement. when executed, creates a Federal
organization not under the laws passed by any of the several ( State )
legislatures.” Crocker v. MacCloy, 649, US Sup 39 at 270PURE TRUST is NOT SUBJECT TO LEGISLATIVE CONTROL
A Pure Contract Trust is not subject to legislative control. The U. S.
Supreme Court holds that Trust relationship comes under the realm of
equity, based upon the common law, and is not subject to legislative
restrictions as are corporations and other organizations created by legislative
authority. Elliot v Freeman, 220 U. S. 178
“ A Pure Trust drives no xxxxx from , benefit, or privilege from any statute”.
Crocker v. Malley 264 US 144
“These Trusts- whether pure trust or partnership- are unincorporated. They
are not organized under any statute : and they derive no xxxxx, benefit , or
privilege from any staute.” Hecht v Malley, 68 L ed 949
“No state shall.....pass any bill or law impairing the law of contracts...U.S
Constitution , Article 1 section 10 1787
“A pure Trust is established by contract, and any law or procedure in it’s
operation , denying or obstructing contract rights, impairs contract
obligation and is therefore violative of the U.S Constitution.” Burnett v
Smith, 240 S.W. 1007 (1922)
“One of the objectives of a business Trust is to obtain for the trust associates,
most of the advantages of corporations without the authority of any
legislative act and with the freedom from restrictions and regulations
generally imposed by law upo corporations.”
Am Jur 2™ page 379, Paragraph 51.
“ According to our National Office , a Pure Trust Organization ( an
unincorporated business trust) is an organization that has no return filing
requirements and is a non taxable organization. Therefore, your Pure Trust
organization doesn’t need an EIN.” - (Letter from IRS.)
PURE TRUSTS VALAD IN ALL STATES
“Tt is established by legal precedent that pure trusts are lawful, valid business
organizations.” .Baker V Stern, 216 NW 147, 58 A. L.R. 462
“A trust created and valid in one state is valid in all states.” Newhall vMcGill, 212 P 2d 764
“The trust is not limited to any given state in conducting business”. Shirk v.
Lafayette
PURE TRUST NOT SUBJECT TO REVIEW OR SUBPOENA
“The trustees of a trust have all the xxxxx necessary to carry out the
obligations they assume. Their consulting services and records are not subject to
review or subpoena”. Boyd v U.S. 116 U.S. 618 and Silverthorne Lumber co. v
US ,251 US. 385
Hale v Henkle, 201 U.S. 43 at 47 (1905) and Pinkerton v Verberg, 78 Mich.
573, 584.
[ A contractual organization ] is created under the common law of contracts
and does not depend upon any statute for it’s existence “ 156 American law
Review 28
The Court will support the trustees in carrying out the terms of their trust
contract and agreement. Clew v. Jamison, 182 U.S. 461, 21 S. Ct 645.
STATE CASE LAW ON THE ISSUE OF TRUSTEE AS PRO SE
Connery v. Sultan, 2015 NY Slip Op. 04750, holding that a trustee may bring an
action on behalf of a trust in his own name, without identifying himself as trustee.
In Connery, the defendant moved to vacate a default judgment, and to dismiss the
complaint, on the ground that the plaintiff, who was in fact a trustee suing on
behalf of the trust, brought the suit in his own name. The First Department found
that the trustee had acted properly and affirmed the motion court’s denial of the
motion. The Court explained:
Contrary to defendant’s argument, a trustee may maintain an action against another
as he could maintain if he held the trust property free of trust. It is unnecessary for
the trustee in the pleadings or other proceedings to describe himself as trustee. He
can proceed in the action as though he were the owner of the claim which he isenforcing. If he does describe himself as trustee the description is treated as mere
surplusage. [ emphasis added]
FLORIDA STATE JURISDICTION
IF FLORIDA STATUTES DID APPLY, THE TRUSTEE IS STILL
AUTHORIZED TO APPEAR PRO SE (see Chapter_FS 736 )
FLORIDA STATE STATUTES, TUST CODE, DO NOT APPLY TO EXPRESS
TRUSTS OR PURE COMMON LAW BUSINESS TRUSTS WITH
CERTIFICATES,
Florida Rules of Civil Procedure 1.210
TRUSTEE MAY SUE IN HIS OWN NAME WITHOUT JOINING THE TRUST.
ANY PARTY OF INTEREST IN THE TRUST, OR BY CONTRACT WITH
TRUST, MAY SUE IN HIS OWN NAME.
RULE 1.210. PARTIES (a) Parties Generally. Every action may be prosecuted in
the name of the real party in interest, but a personal representative, administrator,
guardian, trustee of an express trust, a party with whom or in whose name a
contract has been made for the benefit of another, or a party expressly authorized
by statute may sue in that person’s own name without joining the party for whose
benefit the action is brought. All persons having an interest in the subject of the
action and in obtaining the relief demanded may join as plaintiffs and any person
may be made a defendant who has or claims an interest adverse to the plaintiff.
Any person may at any time be made a party if that person’s presence is necessary
or proper to a complete determination of the cause. Persons having a united interest
may be joined on the same side as plaintiffs or defendants, and anyone who refuses
to join may for such reason be made a defendant.
COURT RULINGS
In 2003, upon, a Show Cause Order from the Florida 5" DCA, in case
5DC-03-2434, Paul Lyndon Johnson v. Ursula M. Mitchell Trustee et al,Mr. Paul Johnson, as trustee of Free Indeed Pure Trust, argued that he was
not an officer of a “corporation”, but the Trustee of an express trust, and in
that capacity, the Florida Statutes and rules granted him the xxxxx to
litigate pro se.
“Contrary to defendant's argument, a trustee may maintain an action agains
t another“as he could maintain if he held the trust property free of trust" (R
estatement [Second]of Trusts § 280). "It is unnecessary for the trustee in th
e pleadings or other proceedingsto describe himself as trustee. He can proc
eed in the action as though he were the ownerof the claim which he is enf
orcing. If he does describe himself as trustee the description
itis treated as mere surplusage" (id., Comment h; see Gerel Corp. v Prime
Eastside
Holdings, LLC, 12 AD3d 86, 95 n3 [1st Dept 2004]; Haag v Turney, 240
AD 149, 150151 [1st Dept 1934]).
Decided on June 4, 2015 Tom, J.P., Sweeny, Moskowitz, DeGrasse, Richt
er, JJ.
15317 401336/05
[*1] Stephane Cosman Connery, et al., Plaintiffs-Respondents,
v
Burton S. Sultan, Defendant-Appellant.
Burton S. Sultan, appellant pro se.Jacobs & Burleigh LLP, New York (Zey
nel M. Karcioglu of counsel), for respondents.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered
April
28, 2014, which denied defendant's motion seeking vacatur of a judgment (same courtand Justice), entered December 3, 2012, pursuant to CPLR 5015
(a)(3) and (4);dismissal of the complaint pursuant to CPLR 3211(a)(1), (2),
(3) and (7); leave to 6/4/2015 Connery v Sultan (2015 NY Slip Op 04750)
http://www.courts.state.ny.us/reporter/3dseries/2015/2015_04750.htm 2/2
amend the answer pursuant to CPLR 3025(b) to assert an affirmative defen
se of lack ofstanding or capacity to sue; and sanctions pursuant to CPLR 8
303-a and 22 NYCRR § 130-1.1(a), unanimously affirmed, without costs.
Contrary to defendant's argument, a trustee may maintain an action against
another"as he could maintain if he held the trust property free of trust" (Re
statement [Second]of Trusts § 280). "It is unnecessary for the trustee in the
pleadings or other proceedingsto describe himself as trustee. He can proce
ed in the action as though he were the ownerof the claim which he is enfor
cing. If he does describe himself as trustee, the descriptionis treated as mer
e surplusage" (id., Comment h; see Gerel Corp. v Prime Eastside
Holdings, LLC, 12 AD3d 86, 95 n3 [1st Dept 2004]; Haag v Turney, 240
AD 149, 150151 [1st Dept 1934]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPART
MENT. ENTERED: JUNE 4, 2015
CLERK
IN THE SUPREME COURT OF FLORIDA (Before a Referee)THE FLORIDA BAR Complainant, Case No. (SC10-1652) TFB File
No. (20093037(18A) v.
WILLIAM E. PACE Respondent.
REPORT OF THE REFEREE
SUMMARY OF PROCEEDINGS;
The referee conducted a final hearing in this matter on May 25, 2011.
Both parties announced ready to proceed. The respondent waived the ten
day requirement with regard to setting the hearing. However, he did not
waive any other issues relating to issues raised by him about which the
referee previously ruled against him. Respondent chose not to participate
in the hearing because he was concerned about waiving those issues.
Those issues related to him seeking to file a third party complaint and
discovery matters that were not related to the question before the referee.
The Respondent, William E. Pace is not a lawyer. The Florida Bar
proceeded against him by petition to enjoin the unlicensed practice of law,
pursuant to Rule 10-7.1 of the Rules Regulating the Florida Bar.
2. FINDINGS OF FACT
This is a very simple case involving a finite legal issue. At various times
in 2008, the Respondent, the trustee of the Earl H. Pace irrevocable trust,
acted as the lawyer for the Earl H. Pace irrevocable trust. He acted as a
lawyer for the trust by filing pleadings that a lawyer would file on behalf ofa client: requests for admissions, a motion to compel discovery, and an
appellate brief. The presiding judge ordered him to retain counsel for the
trust. (This fact is not controlling here)
Respondent then filed a notice of appeal and docketing statement. In fact,
some of the pleadings are signed, “William E. Pace, Trustee, Pro-se.”
The issue of law presented is whether Respondent could represent the trust
prose. There is no doubt that Respondent acted as a lawyer for the trust,
the question is whether his pro-se representation of the trust was otherwise
permissible. [it is, see case law cited herein]
The issue of whether a trustee can “pro-se” represent a trust was addressed
in EHQF Trust v. S&A Capital Partners, Inc., et. al., 947 So.2nd 606 (Fla.
4th DCA, 2007). This decision appears to be the only expression of law
directly on point, and is binding on the circuit courts in absence of
expression to the contrary by another district court of appeal. [ there is case
law in opposition, see 5'" DCA Florida Paul Lyndon Johnson v. Ursula M.
Mitchell Trustee et al, cited herein ]
In EHOQF the Fourth District stated, “Although Florida has not previously
addressed the issue, other states have concluded that a trustee cannot
appear pro se on behalf of the trust, because the trustee represents the
interests of others and would therefore be engaged in the unauthorized
practice of law.” (emphasis added). Thus, even though there is an
accepted right of non lawyers to act as their own lawyers when only their
own personal interests are at stake, that right ends in any situation, whether
a trust or otherwise, when the representation will directly affect theinterests of others. This is a matter of substance and not form.
[ The EHQF trust decisions in other states were almost evenly split. Some
allowing the pro se and some not. This was decided primarily as to whether or not
the states had adopted the language cited herein from the national Uniform Trust
Code (UTC). Florida has adopted it and is therefore bound by it....and by the
Florida rules of Civil Procedure 1.210, allowing pro se pure trust litigants, as
cited below
... FL STATUTE 736.0815 General powers of trustee —
(1) Atrustee, without authorization by the court, may, except as limited or
restricted by this code, exercise:
(a) Powers conferred by the terms of the trust.
(b) Except as limited by the terms of the trust:
1. All powers over the trust property that an unmarried competent owner has
over individually owned property.
This language is directly adopted from the UTC by Florida ]
Thus, EHQF’s prohibition of trustee representation applies when the
trustee represents the interest of others. In order to determine whether
respondent violated EHQF’s prohibition, one must make this factual
determination: did the respondent, acting as trustee, represent the interest
of others? The parties did not address this issue whatsoever in their [
EHQF ] pleadings. There was no description of the particulars of the
trust or its beneficiaries. Also, at the evidentiary hearing the Bar did not
present any evidence on that issue. That the trust is irrevocable is a fact in
respondent’s favor. There are no strings attached to the trust. That is all
that the referee knows about the trust.
3. CONCLUSIONS OF LAW
10There was no proof that the interests of others were affected by the
respondent’s representation of the trust. There were no facts proved
regarding the identity of any beneficiaries of the trust. Thus, there was
no proof that the interests, or rights, of others were affected by the trust.
Wherefore, there was no proof that the rule in EHQF was violated. In the
referee’s view, this comports with logic and common sense. If indeed a
trustee is the sole beneficiary of a trust, then there is no one other than the
trustee whose rights are affected by his representation, and he is
permissibly acting pro-se.
The Bar asked for leave of court for thirty days to supplement the record
with proof, if it exists, that others had a legal interest in the trust, other than
the respondent. Respondent asked for twenty days to respond. The Court
granted both requests. The referee did not receive any supplements
within the time frame.
4. RECOMMENDATION FOR DISPOSITION OF CAUSE
Based upon the referee’s conclusion of law, it is hereby recommended that
no action be taken by the Florida Supreme Court against the Respondent.”
[End case text.]
In The Instant case, 2015 CA 4365 / 1D 17-0515, the LLC trust, trustee plaintiff
DeVaughn Slone was/is representing only his own contractual responsibilities as
trustee. He did not represent any other party. Plaintiff, Walter P. Jenkins
represented his own interests pursuant to a contract with the trust/trustee and his
own rights pursuant to the contract. The LLC Trust in common law is a pure trust [
11contract] and irrevocable. Plaintiff Slone made no issue on Plaintiff Jenkins behalf.
Defendant has failed to show otherwise.
THE FL TRUST CODE SAYS IT DOES NOT APPLY TO A “BUSINESS
TRUST WITH CERTIFICATES” - WHICH IS_A COMMON LAW BUSINESS
PURE TRUST ]
FL TRUST CODE
736.0102 Scope.—
(2) This code does not apply to constructive or resulting trusts;
conservatorships; custodial arrangements pursuant to the Florida Uniform
Transfers to Minors Act; business trusts providing for certificates to be issued to
beneficiaries; [ AS LLC TRUST ] common trust funds; trusts created by the form
of the account or by the deposit agreement at a financial institution; voting trusts;
security arrangements, liquidation trusts; trusts for the primary purpose of paying
debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits
of any kind; and any arrangement under which a person is nominee or escrowee
for another.
The 5" DCA allowed trustee Johnson to proceed with the appeal in his
own name, without an attorney and ordered the change of the caption to
reflect his name. From that point on, the 5“ DCA accepted all of trustee’
Johnson’s briefs bearing his pro se signature. The legislative intent of
Florida Statutes 713.0815 (1) (b) (1) and 716.0816 (23) Florida R. Civ. P.,
rule 1.210 (a) (2013) clearly show that a trustee of an express trust has
the xxxxx and authority to defend, “without authorization by the court,”
and without the threat of being charged with having his pleadings stricken
or his case dismissed, for engaging in the “unauthorized practice of law”
12because the trustee under Florida law is “authorized by law” to represent a
trust of which he is trustee.
FL STATUTE 736.0815 General powers of trustee —
(1) Atrustee, without authorization by the court, may, except as limited or
restricted by this code, exercise:
(a) Powers conferred by the terms of the trust.
(b) Except as limited by the terms of the trust:
1. All powers over the trust property that an unmarried competent owner has
over individually owned property.
736.0816 Specific powers of trustee.—Except as limited or restricted by this
code, a trustee may:
(23) __Prosecute or defend, including appeals, an action, claim, or judicial
proceeding in any jurisdiction to protect trust property or the trustee in the
performance of the trustee’s duties.
FRCP (Florida Rules of Civil Procedure) 1.210 (a),
specifically states that a Trustee may sue in his own name.
RULE 1.210. PARTIES (a) Parties Generally. Every action may be
prosecuted in the name of the real party in interest, but a personal
representative, administrator, guardian, trustee of an express trust, a party
with whom or in whose name a contract has been made for the benefit of
another, or a party expressly authorized by statute may sue in that person’s
own name without joining the party for whose benefit the action is
brought.
13Trustees can lawfully defend a_trust which is considered under Florida law to be
the same as the trustee, as opposed to a corporation which must be represented by
an attorney because it is separate “person” or entity. The fifth DCA affirms trustee
can sue pro se. in case # SDC-03-2434, Paul Lynden Johnson v. Ursula M.
Mitchell, Trustee et al. 5 DCA
736.0103 Definitions.—Unless the context otherwise requires, in this code:
(4) “Beneficiary” means a person who has a present or future beneficial
interest in a trust, vested or contingent, or who holds a xxxxx of appointment over
trust property in a capacity other than that of trustee. An interest as a permissible
appointee of a xxxxx of appointment, held by a person in a capacity other than that
of trustee, is not a beneficial interest for purposes of this subsection. Upon an
irrevocable exercise of a xxxxx of appointment, the interest of a person in whose
favor the appointment is made shall be considered a present or future beneficial
interest in a trust in the same manner as if the interest had been included in the trust
instrument.
(5) “Charitable trust” means a trust, or portion of a trust, created for a
charitable purpose as described in s. 736.0405(1).
1. Florida statutes 736.0815 General powers, empowers a trustee with the
same xxxxx to defend property as an unmarried owner. To rule that an
unmarried owner (or a trustee with the same right) can not appear “pro
se” would violate his rights under the Constitutions of both Florida, the
United States and Florida statutory law. Any unmarried property owner
has the right to appear pro se in any court and the trustee of a trust is
given the same right, not a separate or a different right, the same right.
Nowhere does it say that he must hire an attorney. Further that issue is
dealt with explicitly in the cites below
FS 736.0815 specifically addresses this issue:
14(1)A trustee, without authorization by the court may, except as limited
or restricted by this code, exercise by this exercise:
(b) Except as limited by the terms of the trust:
1. All powers over the trust property that an unmarried competent
owner has over individually owned property ( emphasis added)
Nowhere in the Florida trust Code is a trustee limited or restricted to hiring
a lawyer to represent a trust. In fact, specific permission is granted to a trustee to
appear and litigate with the same { pro se} rights that an unmarried competent
owner has, as cited above. This right is not only upheld but specifically addressed
as cited below in . Florida R. Civ. P., rule 1.210 (a) (2013) which states the
following:
(a) Parties generally. Every action may be prosecuted in the name
of the real party in interest, but an executor, administrator, guardian,
trustee of an express trust, a party with whom or in whose name a
contract has been made for the benefit of another, or a party expressly
authorized by statute may sue in that person’s own name without
joining the party for whose benefit the action is brought. ( emphasis
added)
I Herby certify that the type above is New Times Roman 14
Respectfully submitted , “without prejudice”
rbber "plato
Walter P Jenkins c/o P O Box 1673 Anna Maria Fla, 34216 tel
941 592 4300 cyberstreme@msn.com Plaintiff
15CERTIFICATE OF SERVICE total 16 pages
I HEREBY CERTIFY that copies have been furnished by U.S. Mail or by email or by Florida Courts
E-FILE PORTAL on February, 24, 2017, 2017 to:
Judge Monica J. Brasington via Clerk of Court Alachua County,
xxxx C Dent Jr Esq. Jdent@dentmeclain.com
DeVaughn Slone , Trustee LLC Trust. c/o PO Box 857 Anna Maria
Florida 34216 Walter P. Jenkins, c/o PO Box 1673 Anna Maria,
Florida , 34216
William E. Harlan
Respectfully submitted , without prejudice
Walter P Jenkins c/o P O Box 1673 Anna Maria Fla, 34216 tel
Wala Foleulobo
941 592 4300 cyberstreme@msn.com Plaintiff
16
Preview
Filing # 52978427 E-Filed 02/24/2017 07:35:17 PM IN THE DISTRICT COURT OF APPEAL 187 DISTRICT 2000 DRAYTON DRIVE TALLAHASSEE, FLORIDA 32399-0950 TEL 850 488 6151 2-24-17 CASE NO. 1D17-0515 L.T. NO 2015-CA-4365 Walter P Jenkins. v. xxxx xxxxx as Tax collector Apellant / Petioners Apellee/ Respondent MEMORANDUM OF LAW FILED IN RESPONSE TO ORDER OF 1D 17-0515 ISSUED 2-20-17 AMENDED, PURE TRUST TRUSTEE CAN PROCEED PRO SE IN ANY COURT [emphasis added to all below] FEDERAL CASES PREVENT STATE REGULATION OVER PURE TRUST OR TRUSTEE AND FIND THE TRUSTEE IS NOT A SEPARATE ENTITY FROM A PURE TRUST, BECAUSE IT IS NOT A SEPARATE ENTITY AS ARE STATURORY TRUST INSTRUMENTS CREATED BY STATE LEGISLATURE. INSTEAD, THE PURE TRUST IS CREATED IN COMMON LAW ANDIS, “ CREATED BY THE INALIENABLE “RIGHT TO CONTRACT” WHICH BARS STATES FROM ABRIDGING SUCH RIGHT. SEE CASES BELOW. ( EMPHASIS ADDED ) “No state shall.....pass any bill or law impairing the law of contracts...U.S Constitution , Article 1 section 10 1787 A PURE TRUST IS A CONTRACT IT IS NOT A LEGAL ENTITY “A Trust organization created under the U.S. Constitutional right of contract 1 "2015 CA 004365" 52978427 Filed at Alachua County Clerk 02/27/2017 08:15:00 AM ESTcannot be abridged. The agreement, when executed creates a Federal organization not under the laws passed by any of the (State) legislatures.” Crocker v McCourt, 649 U.S. Sup. 39 at 270 PURE TRUST NOT A SEPARATE ENTITY FROM TRUSTEE & JS NOTA STATUTORY FICTION AS ARE TRUSTS AND CORPORATIONS CREATED BY THE LEGISLATURE “The fact that a business trust is not regarded as a legal entity distinct from it’s trustees, if a true trust... may result in this advantage to the trust, which a corporation does not posses: The trust consist of Citizens, and who therefore , are entitled to certain rights and immunities such as those guaranteed by the privileges and immunities clauses of the Federal Constitution, which do not apply to Corporations.” Morrisey v. Commissioner of of Internal Revenue, 296 US 344 (1935) Business trusts are not entities apart from the trustees. Swartz v Sher, 344 Mass 636 184 NE2d 51. a “Such a Trust has no legal existence apart from it’s trustees,....” Fitch v United Royalty Co. 143 Kan 486 55 P2d 409 . “A Pure Trust is not subject to legislative control. The court holds that the Trust ...is not subject to legislative restriction as are corporations and other statutory entities created by legislative authority. ““ Crocker v MacCloy, 649 U.S. Supp 39 A pure trust is a contractual relationship in trust form. Berry v McCourt 204 N.E. 2" 235 (1965) “A Trust organization created under the U.S. constitutional right of contract cannot be abridged. The agreement. when executed, creates a Federal organization not under the laws passed by any of the several ( State ) legislatures.” Crocker v. MacCloy, 649, US Sup 39 at 270PURE TRUST is NOT SUBJECT TO LEGISLATIVE CONTROL A Pure Contract Trust is not subject to legislative control. The U. S. Supreme Court holds that Trust relationship comes under the realm of equity, based upon the common law, and is not subject to legislative restrictions as are corporations and other organizations created by legislative authority. Elliot v Freeman, 220 U. S. 178 “ A Pure Trust drives no xxxxx from , benefit, or privilege from any statute”. Crocker v. Malley 264 US 144 “These Trusts- whether pure trust or partnership- are unincorporated. They are not organized under any statute : and they derive no xxxxx, benefit , or privilege from any staute.” Hecht v Malley, 68 L ed 949 “No state shall.....pass any bill or law impairing the law of contracts...U.S Constitution , Article 1 section 10 1787 “A pure Trust is established by contract, and any law or procedure in it’s operation , denying or obstructing contract rights, impairs contract obligation and is therefore violative of the U.S Constitution.” Burnett v Smith, 240 S.W. 1007 (1922) “One of the objectives of a business Trust is to obtain for the trust associates, most of the advantages of corporations without the authority of any legislative act and with the freedom from restrictions and regulations generally imposed by law upo corporations.” Am Jur 2™ page 379, Paragraph 51. “ According to our National Office , a Pure Trust Organization ( an unincorporated business trust) is an organization that has no return filing requirements and is a non taxable organization. Therefore, your Pure Trust organization doesn’t need an EIN.” - (Letter from IRS.) PURE TRUSTS VALAD IN ALL STATES “Tt is established by legal precedent that pure trusts are lawful, valid business organizations.” .Baker V Stern, 216 NW 147, 58 A. L.R. 462 “A trust created and valid in one state is valid in all states.” Newhall vMcGill, 212 P 2d 764 “The trust is not limited to any given state in conducting business”. Shirk v. Lafayette PURE TRUST NOT SUBJECT TO REVIEW OR SUBPOENA “The trustees of a trust have all the xxxxx necessary to carry out the obligations they assume. Their consulting services and records are not subject to review or subpoena”. Boyd v U.S. 116 U.S. 618 and Silverthorne Lumber co. v US ,251 US. 385 Hale v Henkle, 201 U.S. 43 at 47 (1905) and Pinkerton v Verberg, 78 Mich. 573, 584. [ A contractual organization ] is created under the common law of contracts and does not depend upon any statute for it’s existence “ 156 American law Review 28 The Court will support the trustees in carrying out the terms of their trust contract and agreement. Clew v. Jamison, 182 U.S. 461, 21 S. Ct 645. STATE CASE LAW ON THE ISSUE OF TRUSTEE AS PRO SE Connery v. Sultan, 2015 NY Slip Op. 04750, holding that a trustee may bring an action on behalf of a trust in his own name, without identifying himself as trustee. In Connery, the defendant moved to vacate a default judgment, and to dismiss the complaint, on the ground that the plaintiff, who was in fact a trustee suing on behalf of the trust, brought the suit in his own name. The First Department found that the trustee had acted properly and affirmed the motion court’s denial of the motion. The Court explained: Contrary to defendant’s argument, a trustee may maintain an action against another as he could maintain if he held the trust property free of trust. It is unnecessary for the trustee in the pleadings or other proceedings to describe himself as trustee. He can proceed in the action as though he were the owner of the claim which he isenforcing. If he does describe himself as trustee the description is treated as mere surplusage. [ emphasis added] FLORIDA STATE JURISDICTION IF FLORIDA STATUTES DID APPLY, THE TRUSTEE IS STILL AUTHORIZED TO APPEAR PRO SE (see Chapter_FS 736 ) FLORIDA STATE STATUTES, TUST CODE, DO NOT APPLY TO EXPRESS TRUSTS OR PURE COMMON LAW BUSINESS TRUSTS WITH CERTIFICATES, Florida Rules of Civil Procedure 1.210 TRUSTEE MAY SUE IN HIS OWN NAME WITHOUT JOINING THE TRUST. ANY PARTY OF INTEREST IN THE TRUST, OR BY CONTRACT WITH TRUST, MAY SUE IN HIS OWN NAME. RULE 1.210. PARTIES (a) Parties Generally. Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought. All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs and any person may be made a defendant who has or claims an interest adverse to the plaintiff. Any person may at any time be made a party if that person’s presence is necessary or proper to a complete determination of the cause. Persons having a united interest may be joined on the same side as plaintiffs or defendants, and anyone who refuses to join may for such reason be made a defendant. COURT RULINGS In 2003, upon, a Show Cause Order from the Florida 5" DCA, in case 5DC-03-2434, Paul Lyndon Johnson v. Ursula M. Mitchell Trustee et al,Mr. Paul Johnson, as trustee of Free Indeed Pure Trust, argued that he was not an officer of a “corporation”, but the Trustee of an express trust, and in that capacity, the Florida Statutes and rules granted him the xxxxx to litigate pro se. “Contrary to defendant's argument, a trustee may maintain an action agains t another“as he could maintain if he held the trust property free of trust" (R estatement [Second]of Trusts § 280). "It is unnecessary for the trustee in th e pleadings or other proceedingsto describe himself as trustee. He can proc eed in the action as though he were the ownerof the claim which he is enf orcing. If he does describe himself as trustee the description itis treated as mere surplusage" (id., Comment h; see Gerel Corp. v Prime Eastside Holdings, LLC, 12 AD3d 86, 95 n3 [1st Dept 2004]; Haag v Turney, 240 AD 149, 150151 [1st Dept 1934]). Decided on June 4, 2015 Tom, J.P., Sweeny, Moskowitz, DeGrasse, Richt er, JJ. 15317 401336/05 [*1] Stephane Cosman Connery, et al., Plaintiffs-Respondents, v Burton S. Sultan, Defendant-Appellant. Burton S. Sultan, appellant pro se.Jacobs & Burleigh LLP, New York (Zey nel M. Karcioglu of counsel), for respondents. Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered April 28, 2014, which denied defendant's motion seeking vacatur of a judgment (same courtand Justice), entered December 3, 2012, pursuant to CPLR 5015 (a)(3) and (4);dismissal of the complaint pursuant to CPLR 3211(a)(1), (2), (3) and (7); leave to 6/4/2015 Connery v Sultan (2015 NY Slip Op 04750) http://www.courts.state.ny.us/reporter/3dseries/2015/2015_04750.htm 2/2 amend the answer pursuant to CPLR 3025(b) to assert an affirmative defen se of lack ofstanding or capacity to sue; and sanctions pursuant to CPLR 8 303-a and 22 NYCRR § 130-1.1(a), unanimously affirmed, without costs. Contrary to defendant's argument, a trustee may maintain an action against another"as he could maintain if he held the trust property free of trust" (Re statement [Second]of Trusts § 280). "It is unnecessary for the trustee in the pleadings or other proceedingsto describe himself as trustee. He can proce ed in the action as though he were the ownerof the claim which he is enfor cing. If he does describe himself as trustee, the descriptionis treated as mer e surplusage" (id., Comment h; see Gerel Corp. v Prime Eastside Holdings, LLC, 12 AD3d 86, 95 n3 [1st Dept 2004]; Haag v Turney, 240 AD 149, 150151 [1st Dept 1934]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPART MENT. ENTERED: JUNE 4, 2015 CLERK IN THE SUPREME COURT OF FLORIDA (Before a Referee)THE FLORIDA BAR Complainant, Case No. (SC10-1652) TFB File No. (20093037(18A) v. WILLIAM E. PACE Respondent. REPORT OF THE REFEREE SUMMARY OF PROCEEDINGS; The referee conducted a final hearing in this matter on May 25, 2011. Both parties announced ready to proceed. The respondent waived the ten day requirement with regard to setting the hearing. However, he did not waive any other issues relating to issues raised by him about which the referee previously ruled against him. Respondent chose not to participate in the hearing because he was concerned about waiving those issues. Those issues related to him seeking to file a third party complaint and discovery matters that were not related to the question before the referee. The Respondent, William E. Pace is not a lawyer. The Florida Bar proceeded against him by petition to enjoin the unlicensed practice of law, pursuant to Rule 10-7.1 of the Rules Regulating the Florida Bar. 2. FINDINGS OF FACT This is a very simple case involving a finite legal issue. At various times in 2008, the Respondent, the trustee of the Earl H. Pace irrevocable trust, acted as the lawyer for the Earl H. Pace irrevocable trust. He acted as a lawyer for the trust by filing pleadings that a lawyer would file on behalf ofa client: requests for admissions, a motion to compel discovery, and an appellate brief. The presiding judge ordered him to retain counsel for the trust. (This fact is not controlling here) Respondent then filed a notice of appeal and docketing statement. In fact, some of the pleadings are signed, “William E. Pace, Trustee, Pro-se.” The issue of law presented is whether Respondent could represent the trust prose. There is no doubt that Respondent acted as a lawyer for the trust, the question is whether his pro-se representation of the trust was otherwise permissible. [it is, see case law cited herein] The issue of whether a trustee can “pro-se” represent a trust was addressed in EHQF Trust v. S&A Capital Partners, Inc., et. al., 947 So.2nd 606 (Fla. 4th DCA, 2007). This decision appears to be the only expression of law directly on point, and is binding on the circuit courts in absence of expression to the contrary by another district court of appeal. [ there is case law in opposition, see 5'" DCA Florida Paul Lyndon Johnson v. Ursula M. Mitchell Trustee et al, cited herein ] In EHOQF the Fourth District stated, “Although Florida has not previously addressed the issue, other states have concluded that a trustee cannot appear pro se on behalf of the trust, because the trustee represents the interests of others and would therefore be engaged in the unauthorized practice of law.” (emphasis added). Thus, even though there is an accepted right of non lawyers to act as their own lawyers when only their own personal interests are at stake, that right ends in any situation, whether a trust or otherwise, when the representation will directly affect theinterests of others. This is a matter of substance and not form. [ The EHQF trust decisions in other states were almost evenly split. Some allowing the pro se and some not. This was decided primarily as to whether or not the states had adopted the language cited herein from the national Uniform Trust Code (UTC). Florida has adopted it and is therefore bound by it....and by the Florida rules of Civil Procedure 1.210, allowing pro se pure trust litigants, as cited below ... FL STATUTE 736.0815 General powers of trustee — (1) Atrustee, without authorization by the court, may, except as limited or restricted by this code, exercise: (a) Powers conferred by the terms of the trust. (b) Except as limited by the terms of the trust: 1. All powers over the trust property that an unmarried competent owner has over individually owned property. This language is directly adopted from the UTC by Florida ] Thus, EHQF’s prohibition of trustee representation applies when the trustee represents the interest of others. In order to determine whether respondent violated EHQF’s prohibition, one must make this factual determination: did the respondent, acting as trustee, represent the interest of others? The parties did not address this issue whatsoever in their [ EHQF ] pleadings. There was no description of the particulars of the trust or its beneficiaries. Also, at the evidentiary hearing the Bar did not present any evidence on that issue. That the trust is irrevocable is a fact in respondent’s favor. There are no strings attached to the trust. That is all that the referee knows about the trust. 3. CONCLUSIONS OF LAW 10There was no proof that the interests of others were affected by the respondent’s representation of the trust. There were no facts proved regarding the identity of any beneficiaries of the trust. Thus, there was no proof that the interests, or rights, of others were affected by the trust. Wherefore, there was no proof that the rule in EHQF was violated. In the referee’s view, this comports with logic and common sense. If indeed a trustee is the sole beneficiary of a trust, then there is no one other than the trustee whose rights are affected by his representation, and he is permissibly acting pro-se. The Bar asked for leave of court for thirty days to supplement the record with proof, if it exists, that others had a legal interest in the trust, other than the respondent. Respondent asked for twenty days to respond. The Court granted both requests. The referee did not receive any supplements within the time frame. 4. RECOMMENDATION FOR DISPOSITION OF CAUSE Based upon the referee’s conclusion of law, it is hereby recommended that no action be taken by the Florida Supreme Court against the Respondent.” [End case text.] In The Instant case, 2015 CA 4365 / 1D 17-0515, the LLC trust, trustee plaintiff DeVaughn Slone was/is representing only his own contractual responsibilities as trustee. He did not represent any other party. Plaintiff, Walter P. Jenkins represented his own interests pursuant to a contract with the trust/trustee and his own rights pursuant to the contract. The LLC Trust in common law is a pure trust [ 11contract] and irrevocable. Plaintiff Slone made no issue on Plaintiff Jenkins behalf. Defendant has failed to show otherwise. THE FL TRUST CODE SAYS IT DOES NOT APPLY TO A “BUSINESS TRUST WITH CERTIFICATES” - WHICH IS_A COMMON LAW BUSINESS PURE TRUST ] FL TRUST CODE 736.0102 Scope.— (2) This code does not apply to constructive or resulting trusts; conservatorships; custodial arrangements pursuant to the Florida Uniform Transfers to Minors Act; business trusts providing for certificates to be issued to beneficiaries; [ AS LLC TRUST ] common trust funds; trusts created by the form of the account or by the deposit agreement at a financial institution; voting trusts; security arrangements, liquidation trusts; trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind; and any arrangement under which a person is nominee or escrowee for another. The 5" DCA allowed trustee Johnson to proceed with the appeal in his own name, without an attorney and ordered the change of the caption to reflect his name. From that point on, the 5“ DCA accepted all of trustee’ Johnson’s briefs bearing his pro se signature. The legislative intent of Florida Statutes 713.0815 (1) (b) (1) and 716.0816 (23) Florida R. Civ. P., rule 1.210 (a) (2013) clearly show that a trustee of an express trust has the xxxxx and authority to defend, “without authorization by the court,” and without the threat of being charged with having his pleadings stricken or his case dismissed, for engaging in the “unauthorized practice of law” 12because the trustee under Florida law is “authorized by law” to represent a trust of which he is trustee. FL STATUTE 736.0815 General powers of trustee — (1) Atrustee, without authorization by the court, may, except as limited or restricted by this code, exercise: (a) Powers conferred by the terms of the trust. (b) Except as limited by the terms of the trust: 1. All powers over the trust property that an unmarried competent owner has over individually owned property. 736.0816 Specific powers of trustee.—Except as limited or restricted by this code, a trustee may: (23) __Prosecute or defend, including appeals, an action, claim, or judicial proceeding in any jurisdiction to protect trust property or the trustee in the performance of the trustee’s duties. FRCP (Florida Rules of Civil Procedure) 1.210 (a), specifically states that a Trustee may sue in his own name. RULE 1.210. PARTIES (a) Parties Generally. Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought. 13Trustees can lawfully defend a_trust which is considered under Florida law to be the same as the trustee, as opposed to a corporation which must be represented by an attorney because it is separate “person” or entity. The fifth DCA affirms trustee can sue pro se. in case # SDC-03-2434, Paul Lynden Johnson v. Ursula M. Mitchell, Trustee et al. 5 DCA 736.0103 Definitions.—Unless the context otherwise requires, in this code: (4) “Beneficiary” means a person who has a present or future beneficial interest in a trust, vested or contingent, or who holds a xxxxx of appointment over trust property in a capacity other than that of trustee. An interest as a permissible appointee of a xxxxx of appointment, held by a person in a capacity other than that of trustee, is not a beneficial interest for purposes of this subsection. Upon an irrevocable exercise of a xxxxx of appointment, the interest of a person in whose favor the appointment is made shall be considered a present or future beneficial interest in a trust in the same manner as if the interest had been included in the trust instrument. (5) “Charitable trust” means a trust, or portion of a trust, created for a charitable purpose as described in s. 736.0405(1). 1. Florida statutes 736.0815 General powers, empowers a trustee with the same xxxxx to defend property as an unmarried owner. To rule that an unmarried owner (or a trustee with the same right) can not appear “pro se” would violate his rights under the Constitutions of both Florida, the United States and Florida statutory law. Any unmarried property owner has the right to appear pro se in any court and the trustee of a trust is given the same right, not a separate or a different right, the same right. Nowhere does it say that he must hire an attorney. Further that issue is dealt with explicitly in the cites below FS 736.0815 specifically addresses this issue: 14(1)A trustee, without authorization by the court may, except as limited or restricted by this code, exercise by this exercise: (b) Except as limited by the terms of the trust: 1. All powers over the trust property that an unmarried competent owner has over individually owned property ( emphasis added) Nowhere in the Florida trust Code is a trustee limited or restricted to hiring a lawyer to represent a trust. In fact, specific permission is granted to a trustee to appear and litigate with the same { pro se} rights that an unmarried competent owner has, as cited above. This right is not only upheld but specifically addressed as cited below in . Florida R. Civ. P., rule 1.210 (a) (2013) which states the following: (a) Parties generally. Every action may be prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought. ( emphasis added) I Herby certify that the type above is New Times Roman 14 Respectfully submitted , “without prejudice” rbber "plato Walter P Jenkins c/o P O Box 1673 Anna Maria Fla, 34216 tel 941 592 4300 cyberstreme@msn.com Plaintiff 15CERTIFICATE OF SERVICE total 16 pages I HEREBY CERTIFY that copies have been furnished by U.S. Mail or by email or by Florida Courts E-FILE PORTAL on February, 24, 2017, 2017 to: Judge Monica J. Brasington via Clerk of Court Alachua County, xxxx C Dent Jr Esq. Jdent@dentmeclain.com DeVaughn Slone , Trustee LLC Trust. c/o PO Box 857 Anna Maria Florida 34216 Walter P. Jenkins, c/o PO Box 1673 Anna Maria, Florida , 34216 William E. Harlan Respectfully submitted , without prejudice Walter P Jenkins c/o P O Box 1673 Anna Maria Fla, 34216 tel Wala Foleulobo 941 592 4300 cyberstreme@msn.com Plaintiff 16