CIVIL COURT OF THE CITY OF NEW YORK

COUNTY OF NEW YORK

------------------------------------------------------------ x INDEX NO. 47075-10
:
CHASE BANK USA, N..A. :
Plaintiff :
: REPLY
: TO
-against- : PLAINTIFFS
: SUR-REPLY
:
:
:
:
OSVALDO VALDES :
Defendant :
:
------------------------------------------------------------ x

NOTICE

Comes now respondent Osvaldo-Valdés one of the people of the republic of new york,

not a corporation or en legis artificial person and and a real party with interest in this matter, a

creditor and grantor/settlor and beneficiary to OSVALDO VALDES and all variations derived

therefrom, appears specially not generally before this court with administrative judge to recover

trust property. Osvaldo-Valdés is a non-attorney, the undersigned, and invokes this court

without accepting jurisdiction to have a certain STAFFORD ANTHONY HARMITT provide

proof of subject matter jurisdiction.

FACTS

The facts of the instant cause pending are incorporated herein by Exhibits and by reference

submitted to this court on September 29, 2010 and are: a Notice and Motion to Dismiss for Lack

of Subject Matter Jurisdiction and all exhibits attached herein including a 28 September

Affidavit by Osvaldo Valdes (Exhibit A) rebutting there exists a debt as plaintiff claims, Notice

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of Ultra Vires / Void Agreement and Change in Terms, a Notice of Change in Terms, a Notice

of Cancellation, a Notice of Billing Error, a Collection Notice, a Tender of Payment and

Document Collection Draft, notice of Controlling Law, Money Gram Money Order

R10325254067 dated 05/04/10 which Plaintiff cashed thus agreeing to all terms and conditions,

(Exhibit B).

On the 17th of June, 2010 Plaintiff was issued a second set of documents including a Notice and

Judgment of Default and Estoppel + Invoice, an Invoice to Chase Bank Claims for for

$239,081.02 presently overdue and owing, (Exhibit C), copy of page 3 of Modern Money

Mechanics stating:

“Transaction deposits are the ...counterpart of bank notes. ...making book entries
crediting deposits of borrowers, which the borrower in turn could “spend” by
writing checks thereby “printing” their own money.”

copy of page 6 of Modern Money Mechanics stating:

“Of course they do not really pay out loans from the money they
receive as deposits...”,

copy of page 7 of Modern Money Mechanics stating:

“Loans are made by crediting the borrower's deposit account; ie, by creating
additional deposit money.”

A REQUEST FOR DEBT VALIDATION PURSANT TO FAIR DEBT COLLETION

PRACTICES ACT, 15 USC SECTION 1601, ET SEQ was Sent to Michael J. Cavanagh, 270

Park Avenue New York, New York by certifed mail# xxxx xxxx xxxx xxxx 4792 on 15 April,

2010 and a Request for Good Faith Affidavit Sent to Michael J. Cavanagh, 270 Park Avenue

New York, New York by certified mail# xxxx xxxx xxxx xxxx 4792 sent on 15 April, 2010.

Track and Confirm for certifed mail# xxxx xxxx xxxx xxxx 4792. (Exhibit D).

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A NOTICE OF INTEREST OF GRANTOR/SETTLOR AND ORDER OF INSTRUCTION TO

TRUSTEE TO SETTLE, SET OFF AND CLOSE CLAIM INDEX NO. 47075-10 to members of

Chase Legal Services (Exhibit E).

There are no facts on the record by plaintiff.

DEFENDANTS REPLY TO PLAINTIFFS SUR REPLY

Ignoring all facts placed before him Mr. Harmitt fails to establish even a minimum

controversy thus fails to establish once again the jurisdiction of this court in the

instant case. He fails to address much less overcome defects outlined in the motion to dismiss for

lack of subject matter jurisdiction. He also fails to aknowledge several points raised by defendant

in previous pleadings lethal to Mr. Harmitts moribund case.

1. Mr. Harmitt, again, conveniently fails to address that banks cannot

lend credit or that it is well established that plaintiff is not permitted to lend its credit in violation

of Title 12, Section 24, Paragraph 7 which confers upon a bank the power to lend its money, not

it’s credit. Plaintiff by omission and commision (cahing Money Gram Money Order

R10325254067 dated 05/04/10) agree. Appears Mr. Harmitt did not read defendant's opposition,

therefore we must remind MR. Harmitt that in: First National Bank of Tallapoosa vs. Monroe,

135 Ga 614; 69 S.E. 1123 (1911), the court, after citing the statue heretofore states:

“The provisions referred to do not give power to a national bank to guarantee the payment of the
obligations of others solely for their benefit, nor is there any authority to issue them through such
power incidental of the business of banking. A bank can lend its money, not its credit.”

In Howard & Foster Co. vs. Citizens National Bank of Union, 133 S.C. 202; 130 SE 758, (1927):

“It has been settled beyond controversy that a national bank, under Federal law, being limited in
it’s power and capacity, cannot lend it’s credit by guaranteeing the debt of another. All such
contracts being entered into by its officers are ultra vires and not binding upon the corporation.”

And is true that “an activity constitutes an incidental power if it is closely related to an express

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power and is useful in carrying out the business of banking, First Nat. Bank of Eastern Arkansas

v. Taylor, 907 F.2d 775. But even with this latitude no hint of lending credit is provided in 12

U.S.C. 24 that would give rise to an incidental power to lend credit by plaintiff; after all, the

exercise of powers not expressly granted to national banks is prohibited. So from where, does

plaintiff claim to be original creditor? Further, it is well established that a national bank cannot

lend its credit by becoming surety, endorser, or guarantor for another.

“In the federal courts, it is well settled that a national bank has not power to lend its credit to
another by becoming surety, indorser, or guarantor for him.” Farmers and Miners Bank v. Bluefield
Nat ‘l Bank, 11 F 2d 83, 271 U.S. 669.

“. . . the bank is allowed to lend money upon personal security; but it must be money that it
loans, not its credit.” Seligman v. Charlottesville Nat. Bank, 3 Hughes 647, Fed Case No.12,
642, 1039.

“A bank can lend its money, but not its credit.” First Nat‘I Bank of Tallapoosa v. Monroe, 135
Ga 614, 69 SE 1124, 32 LRA (NS) 550.

“If a bank could lend its credit as well as its money, it might, if it received compensation and was
careful to put its name only to solid paper, make a great deal more than any lawful interest on its
money would amount to. If not careful, the power would be the mother of panics,… Indeed,
lending credit is the exact opposite of lending money which is the real business of a bank, for
while the latter creates a liability in favor of the bank, the former gives rise to a liability of the
bank to another. Morse. Banks and Banking 5th Ed. Sec. 65; Magee, Banks and Banking, 3rd Ed.
Sec 248.” American Express Co. v. Citizens State Bank, 194 NW 429.

“It is not within those statutory powers for a national bank, even though solvent, to lend its
credit to another in any of the various ways in which that might be done.” Federal Intermediate
Credit Bank v. L “Herrison, 33 F 2d 841, 842 (1929).

“There is no doubt but what the law is that national bank cannot lend its credit or become an
accommodation endorser.” National Bank of Commerce v. Atkinson, 55 E 471.
“…the bank is allowed to hold money upon personal security; but it must be money that it loans,
not its credit.” Seligman v. Charlottesville Nat. Bank, 3 Hughes 647, Fed Case No. 12, 642,
1039.

“It has been settled beyond controversy that a national bank, under Federal law, being limited in
it’s power and capacity, cannot lend it’s credit by guaranteeing the debt of another. All such
contracts being entered into by its officers are ultra vires and not binding upon the
corporation.”Howard & Foster Co. vs. Citizens National Bank of Union, 133 S.C. 202; 130 SE

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758, (1927), it was stated,

Also see:

C.E. Healey & Son v. Stewardson Nat. Bank, 1 N.E.2d 858, 285 Ill. App. 290.

People’s Nat. Bank of Winston-Salem vs. Southern States Finance Co., 122 S.E. 415, 192 N.C.
69, 48 A.L.R. 519.

Colley v. Chowchilla Nat. Bank, 255 P. 188, 200 C. 760, 52 A.L.R. 569.

Rice & Hutchins Atlanta Co. v. Commercial Nat. Bank of Macon, 88 S.E. 999, 18 Ga.App. 151.

First Nat. Bank of Hagerman v. Stringfield, 235 P. 897, 40 Ill.App. 376

City Nat. Bank of Wellington v. Morgan, Civ. App., 258 S.W. 572.

Farmers’ & Merchants’ Bank of Reedsville v. Kingwood Nat. Bank, 101 S.E. 734, 85 W.Va.
371.

Best v. State Bank of Bruce, 221 N.W. 379, 197 Wis. 20.

Central Transp. Co. v. Pullman, 139 U.S. 60, 11 S. Ct. 478, 35 L. Ed. 55.

2. Although Plaintiff is prohibited from lending its credit Mr. Marmitt

ignores Federal Law and attempts to ram down our throats a “credit card,”

“credit statements” and a “credit card account.” How is there a case if banks are

prohibited by law to lend their credit to defendant? How is this not fraud on the court by

plaintiff?

3. There is no controversy here because plaintiff has been paid and in fact
4.
owes defendant money for use of his property (Exhibit A, B , C), Mr Harmitt fails to establish a

controversy yet he informs us via a Mr. Siegel that “we want only to know whether it states a

cause of action.” Well, no, there is no cause of action: (a) plaintiff was offered full payment and

it refused to collect therefore agreeing its alleged contract is ultra vires and (b) there is a new

agreement between the parties which Mr. Harmitt surprisingly, repeatedly, ignores. For this and

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the many other reasons stated herein, plaintiff has not proven a controversy exists. (Exhibit A,

B , C)

4. On 04 May 2010 Defendant sent Plaintiff a NOTICE OF ULTRA

VIRES/VOID AGREEMENT AND CHANGE IN TERMS and a Document Collection Draft.

Mr.Harmitt again conveniently omits that plaintiff was given 30 days to present document

collection draft for full payment if it disagreed with defendant's contention that its agreement

was ultra vires and void (Exhibit B).

Plaintiff failed to present such a document for payment and thereby agree with defendant that its

agreement remains ultra vires. Chase Bank admits its alleged contract with defendant is ultra

vires.

“A contract ultra vires being unlawful and void.....because the corporation, by the
law of its creation, is incapable of making it, the courts, while refusing to
maintain any action upon the unlawful contract, have always striven to do justice
between the parties, so far as could be done consistently with adherence to law,
by permitting a property or money, parted with on the faith of the unlawful
contract, to be recovered back, or compensation to be made for it. In such case,
however, the action is not maintained upon the unlawful contract, nor according
to its terms; but on an implied contract of the defendant to return, or failing to do
that, to make compensation for, property or money which it has no right to retain.
To maintain such an action is not to affirm, but to disaffirm, the unlawful
contract.”

“When a contract is once declared ultra vires, the fact that it is executed does not
validate it, nor can it be ratified, so as to make it the basis of suitor action, nor
does the doctrine of estoppel apply.” Fand PR v. Richmond b. “A national bank
cannot lend its credit to another by becoming surety, endorser, or guarantor for
him, such an act; is ultra vires…” Merchants Bank v. Baird 160 F 642.

“Any false representation of material facts made with knowledge of falsity and
with intent that it shall be acted on by another in entering into contract, and which
is so acted upon, constitutes ‘fraud,’ and entitles party deceived to avoid contract
or recover damages.” Barnsdall Refining Corn, v. Birnam Wood Oil Co., 92 F 26
817.

“Any conduct capable of being turned into a statement of fact is representation.

There is no distinction between misrepresentations effected by words and

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 misrepresentations effected by other acts.” Leonard v. Springer 197 Ill 532.64 NE
301.

“If any part of the consideration for a promise be illegal, or if there are several
considerations for an unseverable promise, one of which is illegal, the promise,
whether written or oral, is wholly void, as it is impossible to say what part or
which one of the considerations induced the promise.” Menominee River Co. v.
Augustus Spies L and C Co., 147 Wis 559.572; 132 NW 1122.

“The contract is void if it is only in part connected with the illegal transaction and
the promise single or entire.” Guardian Agency v. Guardian Mut. Savings Bank,
227 Wis 550, 279 NW 83.

“It is not necessary for recession of a contract that the party making the
misrepresentation should have known that it was false, but recovery is allowed
even though misrepresentation is innocently made, because it would be unjust to
allow one who made false representations, even innocently, to retain the fruits of
a bargain induced by such representations.” Whipp v. Iverson, 43 Wis 2d 166.

Plaintiff admits its contract with defendant is ultra vires. How is proceeding with this case this

not fraud upon this court? How is this not fraud upon the people of New York?

5. Mr. Harmitt omits that plaintiff's failure to present document

collection draft is acceptance of defendant's Change in Terms by plaintiff (Exhibit A and B).

There is a new agreement in place which evidently Mr. Harnett and plaintiff refuse to honor.

For this and the many other reasons stated herein, plaintiff has not proven a controversy exists.

6. Mr. Harmitt does not mention that plaintiff failed to pay defendant's

monies owed for the use of good title left in trust with plaintiff and pursuant to amended

agreement. (Exhibit A, B , C)

7. There is no controversy here because plaintiff trustees have refused to

settle this case with my note and as per my instructions 'NOTICE OF INTEREST AND

NOTICE OF INSTRUCTION' filed with this court in October 12th, 2010. (Exhibit E) and as

such have not exhausted their administrative remedies. Mr. Harmitt does not address that in

August of 1996 I did deposit with Plaintiff CHASE BANK USA, N..A. one original and

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negotiable instrument bearing a face value of $8,200.00. As grantor/settlor to OSVALDO

VALDES, I ordered and instructed Martin J. Murphy and Christine R. Mertz and Melissa N.

Janvier to perform fiduciary duties of public office holders and trustees and to execute certain

actions which said trustees have failed or refused to carry out and which would further render

plaintiffs claims moot (Exhibit D).

8. Our good attorney now “submitts into evidence business records” however

as statements of counsel in brief or argument are insufficient for summary judgment and

whatever testimony or record is before us by Mr. Harmitt must be stricken.

"An attorney for the plaintiff cannot admit evidence into the court. He is either an
attorney or a witness". Trinsey v. Pagliaro D.C.Pa. 1964, 229 F. Supp. 647

9. There is still a lack of “verification” of Plaintiff-Officer-affiant

who fails to represent he has first hand knowledge of a debt owed plaintiff by defendant. These

business records are inaccurate. Mr. Officer represents himself merely as one who “...knows the

contents thereof..” I have stated before the contents of these records are inaccurate. I informed

plaintiff the records are inaccurate. Mr. Officer does not make claim to be familiar with the

alleged creditor's book keeping practices nor of the authenticity of plaintiff's

documents or with payment made by defendant. (Exhibit A, B , C).

“There is no hearsay exception....that allows a witness to give hearsay testimony

of the content of business records based only upon a review of the records.”
Grant v Forgash, 1995 Ohio App. Lexis 5900, *13 (Ohio App. 1995)

10. There are serious 14th Amendment due process violations against Osvaldo Valdes

because this case is moving without any facts on the record by plaintiff. Affiants affidavit has

been rebutted in a 28 September 2010 Affidavit by Osvaldo Valdes. Plaintiff has failed to place

any facts on the record including any proof of debt or a signed contract between parties. Contrary

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to the insults and smoke and mirrors of Mr. Harmitt, plaintiff has been unable to verify any debt

by defendant. Whatever prima facie evidence Mr. Harmitt claims to exist has been thoroughly

rebutted. (Exhibit A, B , C).

11. It is an indisputable fact Defendant offered to pay Plaintiff whatever Plaintiff

claimed was owed for the very contract Plaintiff has failed to submit into

evidence as proof of a breach of contract (Exhibit A, B , C). It is an indisputable fact that

plaintiff is unwilling or unable to submit to this court a contract as requested by Defendant.

Therefore this court is moving w/o any evidence of a contract between the parties.

13. Defendant was never served any summons or verified complaint. The issue of

improper service was raised before so it is not true this is a new issue. Defendant learned of a

lawsuit through an advertisement from American Mediation dated September 14, 2010 (Exhibit

F). The second time I heard about a law suit is when I was summoned into court by a notice from

the court. (Exhibit F). Now we learn that a Barry German claims to have delivered a complaint to

a “JOHN DOE”, A RELATIVE AND CO-TENANT” a “suitable age person” on the second

floor. This “JOHN DOE”, A RELATIVE AND CO-TENANT” was asked if recipient was in the

military, etc” Really, was the answer of this JOHN DOE? Does this “relative” have a name? Do

we know where we might be able to locate this “JOHN DOE?” As far as I know, these

statements by Mr German are not true. Defendant was never served at all, let alone served

properly. (Exhibit G)

14. Plaintiff has failed to state a claim upon which relief can be granted under

FRCP 12(b)(6). Therefore this matter should be dismissed for lack of political, in personam and

subject matter venue and jurisdiction and improper "due process of Law" and improper service.

Or in the alternative, name on and for the record this court's authority and type of

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jurisdiction to prosecute one of the people of the republic of new york. Identify the evidence

on the record by a fictitious entity that can act on one of the people of New York.

15. Mr. Harmitt , an attorney, should know he is not permitted to submit evidence into

the record:

"An attorney for the plaintiff cannot admit evidence into the court. He is either an
attorney or a witness". Trinsey v. Pagliaro D.C.Pa. 1964, 229 F. Supp. 647

yet he proceeds to quote his own submission. He informs us of a use of “credit card account” and

refers the court to alleged “credit” amounts and “credit” advances by plaintiff quoting the very

“evidence” he is barred from submitting. In PLAINTIFFS RESPONSE TO DEFENDANTS

REQUEST FOR ADMISSIONS on the request to “Admit Plaintiff lent Defendant its own

money”, curiously, incomprehensibly, the response remains “this request is vague and

ambiguous.” Well, which one is it? Did plaintiff lend money to defendant or is the claim “..

vague and ambiguous?” You let us know which of your statements is true Mr. Harmitt.

16. Mr. Harmitt expects us to believe “there is no reason to doubt the

veracity of the verification in plaintiffs complaint” that the causes of action are “concise and well

articulated.” Actually, there are numerous reasons to doubt this so called veracity. For starters,

there is no proof on the record plaintiff is an original creditor. Michael J.

Cavanagh was given opportunity for debt validation pursuant to fair debt collection

practices act, 15 usc section 1601 and he was unable to or refused to validate anything. (Exhibit

D) Mr. Harmitt please look carefully at items 1-10 and items 1-14 of the request. Plaintiff

remains in commercial dishonor. (Exhibit D). Plaintiff has not exhausted its administrative

remedies and as such this lawsuit is premature and frivolous. The complaint is nonsense because

plaintiff has been paid. (Exhibit A, B, C). Plaintiffs Response to Admissions curiously appear

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dishonest and counterproductive to any claims of “veracity.” Banks cannot lend credit as it is

well established that plaintiff is not permitted to lend its credit in violation of Title 12, Section

24, Paragraph 7. But in spite of Federal Law (not to worry) Mr. Harmitt disingenuously omits

this from his pleading and reminds us of a “credit card” and “credit” at every turn. When asked

to “Admit Plaintiff lent Defendant its credit” the attorney writes: “This request is vague and

ambiguous.” Well, which one is it. Did the plaintiff lend its credit or is the issue of credit, when

inconvenient, vague? Veracity?

17. The “verified complaint” FIRST CAUSE OF ACTION is inaccurate. There is no

proof plaintiff is original creditor or that it funded the alleged account. (Exhibit A, B, C).

Plaintiff refuses to produce GAAP accounting as required by Federal Law and thus proving it

funded the account. (Exhibit D). The claim defendant entered into a credit card agreement is

disingenuous as defendant repeatedly offered Federal Reserve Notes for such an agreement and
plaintiff was unable to produce it. (Exhibit A, B, C). Where is such agreement with wet

signature? (Exhibit A, B, C). Clearly this complaint is bogus. Nonetheless, plaintiff has a new

agreement on record so whatever agreement Mr. Bulger alludes to has been superseded. (Exhibit

A, B, C). That defendant has incurred indebtedness is not the question but who funded the

account. (Exhibit A, B, C). If my promissory note has disappeared with allonges and CUSIP

numbers, how do we know it is not defendant who funded the account? Only plaintiff can prove

who in fact is original creditor and plaintiff curiously refuses to show the accounting of the note.

(Exhibit D). That plaintiff “..deliver or mail a copy of aforesaid agreement” is false. That “no

part of the sum sued for has been paid” is false. On May 4, 2010 Plaintiff was

sent Notice of Ultra Vires / Void Agreement and Change in Terms, a Notice of Change in

Terms, a Notice of Cancellation, a Notice of Billing Error, a

Collection Notice, a Tender of Payment and Document Collection Draft, notice of Controlling

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Law, Money Gram Money Order R10325254067 dated 05/04/10 which Plaintiff cashed thus

agreeing to all terms and conditions. (Exhibit A, B, C).

On the 17th of June, 2010 Plaintiff was issued a second set of documents including a Notice and

Judgment of Default and Estoppel + Invoice, an Invoice to Chase Bank Claims for for

$239,081.02 presently overdue and owing. The statement by Mr. Bulger that plaintiff is owed

money by defendant is false. (Exhibit A, B, C).

18. The 16 of July 2010 “verified complaint” SECOND CAUSE OF ACTION is false

and inaccurate. Plaintiff did not mail defendant any accurate monthly statements. This is not

required by the new agreement. (Exhibit A, B, C). Both statements are false. It is not true

“defendant failed to pay and remains indebted for the amount set forth..” (Exhibit A, B, C).

CONCLUSION:

c. There is no controversy in this case because Defendant offered payment in good faith

(Exhibit A, B, C) and Plaintiff refused to collect. Whatever debt may have existed it is

discharged. Mr. Harmitt admits plaintiff received “....documents...prior to the commencement of

the instant action.” In good faith, defendant offered full payment and plaintiff inexplicably

refused full payment. So how are the two causes of action not fraud upon this court?

d- Plaintiff's complaint alleges a non existent valid contract yet to appear on the record.

Plaintiff's complaint is unsupported even by copy of contract or any factual evidence appearing

in the two causes of action. Other than an already rebutted “verified complaint” by plaintiff's Mr.

Bulger, plaintiff does not bring any supporting documentation. Plaintiff's complaint fails to

materialize the existence of a valid contract between the parties. (Exhibit A, B, C).

e- All “evidence and arguments” presented in the instant case thus far by plaintiff is by an

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attorney which are inadmissible.

An attorney for the plaintiff cannot admit evidence into the court. He is either an
attorney or a witness". (Trinsey v. Pagliaro D.C.Pa. 1964, 229 F. Supp. 647)

h- There is no proper service. Verified complaint delivered to wrong address by plaintiff.

Defendant does not have principal domicile at 184 EAST 7TH STREET, 2ND FLOOR, NEW

YORK, NEW YORK, 10009. Defendant is not “JOHN DOE” Defendant does not have “brown”

skin. Defendant is not within 35-40 years old. Defendant is not within 5'9”-5'10” tall. Defendant

is not within 181-210lbs. Plaintiff did not deliver any verified complaint to defendant as

affirmed. Plaintiff's admits it delivered alleged verified complaint to “JOHN DOE” at incorrect

address with characteristics not matching those of plaintiff. This has been previously rebutted
by affidavit. (Exhibit A, F, G).

i- A NOTICE OF INTEREST OF GRANTOR/SETTLOR AND ORDER OF

INSTRUCTION TO TRUSTEE TO SETTLE, SET OFF AND CLOSE CLAIM INDEX NO.

47075-10 to members of Chase Legal Services has not been acted upon. (Exhibit E). As such

plaintiff has not exhausted their administrative remedies. Furthermore, these public officials are

in dereliction of trustee duty and this court should grant summary judgment for beginning and
extending this lawsuit rather than carry out trustee duties (Exhibit E) :

63C Am Jur 2d Public Officers and Employees § 241

Generally; fiduciary nature of duties

A public officer must act primarily for the benefit of the public; by accepting a
public office, one undertakes to perform all the duties of the office, and while he
or she remains in such office the public has the right to demand that he or she
perform such duties. A public officer owes an undivided duty to the public
whom he or she serves. Public policy demands that an officeholder discharge his
or her duties with undivided loyalty, and that every public officer is bound to
perform the duties of his or her office faithfully. An officer's or public
employee's duty of loyalty to the public and his or her superiors is similar to that
of an agent of a private principal.

47075-10 13 of 17
 As expressed otherwise, the powers delegated to a public officer are held in trust
for the people and are to be exercised on behalf of the government or of all
citizens who may need the intervention of the officer. A public official is held in
public trust. That is, a public officer occupies a fiduciary relationship to the
political entity on whose behalf he or she serves, and stands in a fiduciary
relationship to the citizens that he or she has been elected to serve. Public
officers are fiduciaries and, when dealing with public property, must act with the
utmost good faith, fidelity, and integrity.

j- Banks cannot lend credit. It is well established that plaintiff is not permitted to lend its

credit in violation of Title 12, Section 24, Paragraph 7 which confers upon a bank the power to

lend its money, not it’s credit. Plaintiff by omission and commission, by failure to address

Exhibits A and B and C and by cashing Money Gram Money Order R10325254067 dated

05/04/10, plaintiff agrees it lent its credit to defendant in violation of Federal Law.

k- Plaintiff in bad faith began instant lawsuit knowing full well it was offered full payment

(Exhibit A, B, C). Plaintiff refused to return Defendant's property in the form of a negotiable

instrument left in its trust choosing instead the instant frivolous and premature lawsuit.

l- Inexplicably, alleged plaintiff refused or was unable to come up with a rather

reasonable request outlined below and instead filed a frivolous lawsuit claiming non existent

damages:

Please provide items 1-5 as per 5.1 below.

5.1 Please provide:

1. Original signed application from undersigned;

2. Original signed application from Cardholder.
3. proof* that Cardholder has used this account.
4. Affidavit stating:
* The original application was not used directly or
indirectly to fund this account.
* The charge slips were not used directly or indirectly to
fund this account.
* This account was funded by money owned by account
issuer.
* Account issuer has the account balance at risk.
* That account issuer followed GAAP in maintaining
financial records for this account.

47075-10 14 of 17
 * The account is still currently owned by original issuer.
* If not, who currently owns the account and how much
did they pay for it?
5. The above affidavit must be signed under oath by an officer of the corporation
and accompanied by the corporate seal. (Exhibit A, B, C).

m- The attorney for plaintiff is bringing his 'cause of action' or 'claim' that defendant is

indebted to the plaintiff on some agreement that defendant has failed to uphold. Said claim is a

pure and simple "assumption" and "presumption." Plaintiff has no evidence that is admissible at

trial or a competent fact witness that can authenticate said evidence at trial; that can prove their

claim.

m1) there is no contract/agreement bearing defendants signature.

m2) there is no evidence bearing defendants signature that defendant used the credit card. Note

that neither the application nor the receipt of the credit card nor a credit card statement is

evidence of a contract.

n- if there is no contract/agreement then there is no controversy (see court rule 12(b)(6), if

there is no controversy then the court does not have subject matter jurisdiction (see court rule

12(b)(1)).

o- Subject Matter jurisdiction by the court, requires that there be a "controversy" between

the parties. Plaintiff has failed to prove there is a valid controverty period, simply stated, end of

discussion, end of story.

Based on the above evidence and arguments the plaintiff has failed to provide any proof of a debt

owed (Exhibit A, B, C) and has failed to state a claim upon which relief can be granted and as a

matter of law and fairness to defendant plaintiff's complaint should be dismissed for lack of

standing to sue and lack of subject matter jurisdiction. The bank is “creditor” and “plaintiff”

merely for the fact that it initiated a frivolous lawsuit for lack of payment when in fact it had

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been paid (Exhibit A, B, C). If plaintiff cannot provide documentation, evidence

admissible at trial, to support his claim of a debt how is there a valid case here? (Exhibit A, B,

C).

Defendant should be awarded $18,000 and damages as the court sees fit for the use of his

property by Plaintiff and refusal to return same (Exhibit A, B, C) and for initiating this premature

and frivolous lawsuit prior to exhausting administrative remedies (Exhibit D) and wasting

valuable court time. This is particularly poignant considering Mr. Harmitt admitted to be aware

defendant offered full payment to plaintiff before this lawsuit started. (Exhibit A, B, C). Mr.

Harmitt is also aware plaintiff' admits its agreement with defendant is ultra vires. (Exhibit A, B,

C). Mr. Harmitt is also aware the plaintiff bank cannot lend its credit to defendant in violation of

Federal Law. Short of plaintiff's attorney's insults and tiresome false allegations and empty

rhetoric, there is no case here, there never was a case here. (Exhibit A, B, C, D, E).

WHEREFORE, for all the reasons stated above and the reason in defendants original motion to

dismiss and defendants Opposition to Plaintiff's Opposition which stand unrebutted, the

defendant moves this Court to dismiss this case for lack of subject matter jurisdiciton and award

expenses and damages to defendant as the court sees fit.

Respectfully Submitted,

By: Osvaldo Valdés

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CERTIFICATE OF SERVICE I certify that the foregoing was served by mailing a copy by

United States mail, first-class postage prepaid, on 21st of February 2011, as follows:

CHASE BANK USA, N.A.

1985 MARCUS AVENUE, NY2-M352
NEW HYDE PARK, NY 11042

__________________________
By: Osvaldo Valdés, 184 East 7th Street, New York City [10009]

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