Ernest K. Bankas v. Maureen Bankas ( 2015 )

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OF APPEALS
APR 2 9 2015
KAr LvSa M***-*2- LISA MATZ
VQ ^ ™ CLERK- 5th DISTWCT
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gru185 S.W.3d 906,906 (Tex. App-Tyler 2006, no. pet..).
The said judgment ie case no DF-913471, was also loaded with blatant lies
that Ihad formed aDOLUS EVENTUALIS or What some may refer to as MENS
REA of coming back to the United States to Kidnap my children and then have
them taken to Ghana for good. It was mrther falsely* stated in the judgment that I
received the substitute service and that Iwas properly served but at same time also
concluded that I was nowhere to be found, and that I had failed to come to court
whereas in actual fact Iwas in the Republic of Ghana and thus was never served or
given actual notice ofthe said pending legal matter and therefore Idid not appear
to implead Maureen Bankas. All these events took place whilst Iwas in Ghana in
violation ofthe 14th Amendment section 1ofthe US Constitution. As amatter of
fact, I was being charged or billed with child support and interest whilst Iwas in
Ghana and thus did not even know ofthe said trial and judgment after 18 months.
When I came back from the Republic ofGhana, I went to our house but
Maureen Bankas will not open the doors ofthe house to me for the locks on the
doors had been changed as aresult ofthe said INFIRM judgment ofJune 1st 2010,
which was never communicated to me and therefore Ihad to move heaven and
earth in order to find a place to live.
Let it be further stated more clearly that whilst in Ghana my BMW 740i, E
300 Benz car and aDodge Caravan, 42 pairs of shoes, 12 suits, 105 shirts, 30
trousers, expensive African Kente cloth and two other expensive African clothes
worth $5000.00 were sold .It is also important to note that my electronics with 8
speakers,120 old record albums, afamily album, 250 CD's that Ihad bought
before Imet Maureen Bankas were auctioned to the public by my ex-wife. In other
words everything that Ihad worked for had been lost including my office furniture
which may still be in our house and may be worth $5,250.00.But Maureen Bankas
blatantly lied under oath that when Iwas going to Ghana, Itook everything out of
the house and had these items shipped to Ghana and England. In this regard, Iam
willing to tell the court that Maureen Bankas' testimony must be characterized as
SUGGESTIO FALSI. Furthermore the judgment in case no.DF-09-13471 was
characterized with error offacts and error ofevidence.
5
In fact when I was going to Africa, ie Ghana, I took only two travelling bags
with me and this is supported by the affidavit which was duly submitted with my
original bill ofreview*. The fact that Iwas never served or given notice ofthe trial
setting is self- evident and thus EX-HYPOTHESI cannot be disputed in view ofthe
force and thrust of the evidence that the plaintiffhad already submitted to the
court .(see the bill ofreview petition). All that Iwant as an injured person is that
my position be restored STATUS QUO ANTE* in respect to what Ihad lost
because Iwas deprived of my fundamental constitutional rights by the trial court.
See Armstrong vManzo, 380 U.S. 545 550 1965; Mullane vHanover Bank &Trust
Co, 339 U.S. 306 314.
With the greatest respect to the Fifth Court Appeals,* Iam hereby humbly
asking the court to consider the following important questions and issues in respect
to the said case, and ifthese questions are answered in the NEGATIVE by
seriously and carefully taking into consideration the US constitution ie, the 14th
Amendment section 1, and the material facts involved in the dispute, afavorable
judgment will certainly be rendered on my behalf. Let me state these questions and
issues SERIATIM,
1. Can astate deprive any citizen of life, liberty or property without due
process of law?
2. Can a citizen of the United States who happens to be living abroad in
Ghana be put in jail without being accorded due process oflaw in
violation ofthe 14th amendment section 1, ofthe Constitution in regard
to aprior INFIRM judgment ofJune 2010; when he gets back to Texas?
3. Can a claim for child support be reduced to a judgment without proper
notice or service ofprocess being given to the person who is obligated to
pay it?
4. Can achild support default judgment that is procedurally defective or
void AB INITIO be enforced in violation ofthe Due process clauses of
the US Constitution?
5. Can achild support payment be charged to aUS citizen with interest
while he is living abroad without notice or service ofprocess or notice of
judgment in violation of procedural due process?
6. Can aperson be put in jail without being given aday in court in aprior
hearing or trial to implead the accuser in violation ofthe 14th Amendment
section 1, andthe 6th Amendment?
7. Can aperson's children and (property worth $170,000) be taken away
from him without according him due process of law and can his personal
property worth $70,000.00 be sold by Maureen Bankas because ofthe
said INFIRM Judgment ofJune 1st 2010?
8. Can a US citizen's bank account be attached without being accorded a
due process under the Constitution ofthe United States? ie, the 14th
Amendment, section 1,?
9. As oftoday my rights even to visit with my children have been taken
away from me in violation ofthe law and arestriction has been placed on
my passport.
10. The assets involved in this saidcase are worth more than $380,000.00;
and the marriage lasted for almost 27 years.
Acareful reading ofthe US constitution will show that the above questions
must be answered in the NEGATIVE because my due process right was
blatantly violated. (See. The 14th Amendment section l.)It is therefore
submitted that the said judgment be set aside. See also Rule 329 b (f);
Pennoyer vNeff, 95 U.S. 714, 24 LEd 565(1878); Mullane vCentral
Hanover Bank and Trust co.339 U.S. 306 314 (1950); Armstrong v Manzo,
380 U.S. 544 550 (1965).
*It should be noted IN LIMINE that the judgment inMaureen Bankas v
Ernest K. Bankas, case no. DF-09-13471 is in conflict with the Supreme
Court judgment in Mullane vCentral Hanover Bank &Trust Co, 339 U.S.
306 314 1950, as well as the 14th Amendment section 1ofthe US
Constitution and therefore must not be allowed to stand, for ifthis said
judgment is litigated on appeal before the Supreme Court ofthe United
states, it will undoubtedly be struck down as unconstitutional.
B
THE US CONSTITUTION IS THE SUPREME LAW OF THE LAND:
SOURCES OF THE LAW
The 14th Amendment is an entrenched constitutional provision and its
prohibitions cannot be disregarded by any state and its agencies; see Georgia
Power Co v city ofDecatur,50 S.Ct. 369,281 US 505 74 LED 999; thus
1. Astate may not be allowed to abridge the privileges and immunities of
citizens.
2. Astate may not be allowed to deprive aperson living in its jurisdiction of
life, liberty orproperty without due process oflaw.
3. Astate may not be allowed to deny to aperson the 'equal protection of
the laws'.
4. These said constitutional provisions must be followed by all judges
without fail in order to promote the rule of law.
5. These prohibitions are undoubtedly an obligation and nothing else.
The 14th Amendment section 1, ofthe US constitution, (1868)*; provides
that,
"No state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall a state deprive any person of
life, liberty or property without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws".
The 'due process of law implies that the right of the person affected thereby
be present before a tribunal which pronounces judgment upon the question of life,
liberty or property* in its most comprehensive sense, to be heard by testimony or
otherwise and to have the right of controverting, by proof every material fact
which bears on the question of fact or liability in the matter'. See Mullane v
Central Hanover Bank & Trust Co, 339 U.S. 306 314 1950.This means that where
life, liberty and property are at stake substitute service cannot be used to satisfy the
requirement ofprocedural due process or federally protected rights (the 5th and the
14th Amendments ofthe US Constitution) and more over substitute service does
not bear any 'IDICIA OF RELIABILITY'*. See. Mullane v Central Hanover Bank
& Trust Co, 70 SCt.652 94 L Ed. 865(1950), nor can an Ad Litem be appointed to
satisfy the strict due process requirement ofthe case in dispute, since it may create
an atmosphere whereby the plaintiffwill have an advantage over the defendant in
the judicial process by defeating the fundamental fairness normally required to
promote the rule oflaw. This is because the Ad litem will have alimited
knowledge about the case without first visiting with the defendant on the issues or
10
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facts of the case, and therefore may create a PROTOTYPICAL BIAS against the
defendant. Hence in my case the appointment of an Ad Litem* did not satisfy the
procedural due process requirement ofthe law. See Mitchell v W.T. Grant Co, 416
U.S. 600 604 1974; Armstrong v Manzo, 380 U.S. 545 550 1965;
***In this regard, it is vital to remember that, where an 'individual is facing
a deprivation oflife, liberty, or property*PROCEDURAL DUE PROCESS
MANDATES* thathe or she must be adequately or properly notified or given an
'adequate notice', ofahearing, so as to be present before atribunal, and be also
entitled to a 'neutral judge'. Thus where a fundamental right is at stake, a court
must adhere to procedural due process. Snyder v Massachusetts 291 U.S. 97 105
(1934). Fuentes vShevin, 407 U.S. 67, 80 92 SCt. 1983, 32 LEd 2d 556 1972
Pennoyer v Neff, 95 U.S. 714, 24 L Ed. 565 (1878).
In Armstrong vManzo, at 552, the Supreme Court observed INTER ALIA
that,
"Where aperson has been deprived ofproperty in amanner contrary to the
most basic tenets of due process.
Only wiping the slate clean would have restored the petitioner to the position
he would have occupied had due process oflaw been accorded to him in the first
place. Due process demands no less in this case".
li
What the Supreme Court is saying is that if due process is violated or denied
in respect to life, liberty or property, there is the need thatthe person who is
harmed be accorded STATUS QUO ANTE in order to restore him to his original
position. I therefore appeal to the good conscience ofthe court to set aside the
judgment in case no DF-09-13471. Because a federally protected right was
blatantly violated. Peralta v Heights Medical Center Inc. 485 U.S. 80 1988.
*A no fault divorce may be procured through substitute service butnotwhen
a fundamental right oflife, liberty orproperty is at stake ordeprivation ofa right
duly protected under the constitution is at issue. Armstrong v Manzo, 380 U.S. 545
550 (1965).In other words "the due process clause demands no less in this case" Id
at 552; Goldberg v Kelly 397 U.S. 254 267(1970).Mullane v Central Hanover Bank
and Trust Co, 339 U.S. 306(1950).
It should be further noted that according to the US Constitution, the
fundamental requisite ofdue process oflaw is to create an atmosphere whereby
every individual is given the opportunity to be heard and to contest any charge that
may be preferred against him or her and also to be fully aware or well informed
that alegal matter is pending before ajudicial authority. Thus where liberty or
property right is recognized by virtue ofajustified expectation and duly protected
12
under the US constitution, the procedure that must be followed in protecting such
rights are defined by the US constitution and federal laws and treaties but not a
state law. See. Peralta v Heights Medical Center Inc, 485 U.S. 80 (1988).
The due process clauses ofthe 5th and 14th Amendments ofthe US
Constitution require that every citizen must be accorded the right to be heard
before being condemned to suffer harm or to be thrown into prison*. Courts in the
United States have come to recognize that two aspects of due process exist and
these are procedural due process and substantive due process. Procedural due
process is crucial in every judicial process in America; because it guarantees
fundamental fairness to all parties and also ensures that the litigating parties
receive proper notification throughout the process oflitigation and further ensures
that the adjudicating court in agiven state has the legally or constitutionally
appropriate jurisdiction to render judgment*.Mullane vCentral Hanover Bank&
Trust Co., 339 U.S. 306 314 1950.
The 5th Amendment due process applies to the Federal government but can
also be applied directly through thel4th Amendment due process clause to control
or limit arbitrary governmental power ofthe states, ie through (incorporation).
To that end, it is herein submitted that failure to give me notice or notice of
trial setting in Maureen Bankas vErnest k. Bankas, case no. DF-09-13471 violated
13
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the due process of law, ie the 5th and the 14th Amendments ofthe US Constitution
and therefore the saidjudgment be set aside for it is unconstitutional. Peralta v
Heights Medical center, Inc. 485 U.S. 80 (1988); Armstrong v Manzo 380 U.S. 544
550 1965; Mullane v Central Hanover bank & Trust Co, 339 U.S. 306 314 (1950)
; Mitchell v W.T. Grant Co 416 U.S. 600 604 (1974); Fuentes v Shevin, 407 U.S. 67
79 S. Ct. 1983, 32 L. Ed. 2nd 566 1972.Thus based on US Supreme Court authorities
orestablished precedents there was a clear violation ofprocedure due process in
my case. This means that the guarantee ofprocedural fairness which flows from
both the 5th and 14th Amendments ofthe US constitution was deniedto me in the
light ofthe fact that Iwas in Ghana and thus was never given any notice ofthe trial
setting in sufficient detail to fully inform me ofa pending legal proceeding or
decision or state action that will negatively affect my right or property or liberty.
Fuentes v Shevin, 407 U.S. 67 79 S. Ct. 1983; Armstrong v Manzo, 380 U.S. 545 550
1965; Mullane v Central Hanover Bank and Trust Co, 339 U.S. 306 314 1950.
Again this said JUDGMENT certainly will be struck down ifit is litigated
before the Supreme Court ofthe United States in the light ofthe above authorities,
and its well established precedents on due process oflaw. See Peralta v Heights
Medical Center Inc. 485 U.S. 80 (1988).Mullane v Central Hanover Bank and Trust
Co 339 U.S. 306 314 (1950).
C
14
TEXAS LAW
EQUITABLE BILL OF REVIEW
Abill ofreview may be defined as "an independent equitable action brought
by aparty to aformer action seeking to set aside ajudgment which is no longer
appealable or subject to motion for anew trial".Tex. R.Civ. P. 329 b(l); Calwell v
Barnes,154 S.W. 3d 93 96 (Tex. 2004)( CALDWELL ii) Peralta vHeights Medical
Center Inc. 485 U.S. 80 86.108 SCt. 896,99 LEd 2d at 96-97.lt is here submitted
that lack ofservice violates constitutional due process and obviates the need to
proofany traditional elements. See. Caldwell, pp 96-97(per curiam).Hence ifa
petitioner proves that there was no service at all, the bill ofreview process is
concluded, which means that the judgment in issue must be set aside and anew
trial must be granted.
In Caldwell v Barnes, the Supreme Court ofTexas ruled that "adefendant
who is not served with process is entitled to abill ofreview without afurther
showing because the constitution discharges the first element and lack ofservice
establishes the second and third". See Ross vNational Center for the development
ofthe Disabled 49 Tex. SCt. 760,197 SW 3d 795 Tex. 2006. (Citing Caldwell). It
should also be noted 'that similarly, ifaparty proves that service was defective, the
15
result is the same'. Id; According to the law a 'default judgment cannot stand inthe
absence of a valid service of process'.
The fact that a bill of review is an equitable attack on a default judgment or
ajudgment in violation ofthe due process clause ofthe 14th Amendment, supports
alegal proposition that there is an established precedent that there will not be "a
presumption in favor ofvalid issuance, ofservice or return of service". Nor will
there be any presumption in favor ofcompliance with 'substituted service
procedures'. Ashley Forest Apartments vAlmy, 762 SW 2d 293,294-95 Tex. App-
Houston (14th Dist. 1988 no Writ).
In Lopez vLopez, the Supreme Court ofTexas ruled that,
"Because the record here establishes that Guadalupe had no actual or
constructive notice ofthe trial setting, the lower courts erred in requiring him to
show that he had ameritorious defense as acondition to granting his motion for a
new trial. The Supreme Court has recently held that such arequirement, in the
absence ofnotice, violates due process rights under the Fourteenth Amendment to
the Federal constitution .Peralta vHeights Medical Center, Inc. US 108 S.Ct.
896,99 Led 2d 75 1988".
In this respect the judgment in case no DF-09-13471 ie Maureen Bankas v
Ernest k. Bankas is in conflict with Peralta vHeights Medical Center Inc, Pursuant
16
to Tex. R. App. P. 133(b) and therefore must be set aside since it is patently in
violation of my constitutional due process right in view of the fact that I was never
served or given notice of the trial setting and thus was not aware* of any pending
legal matter; see 14th Amendment section 1; Armstrong v Manzo, 380US545 550
(1965).In fact, the said judgment was blatantly imposed on me as if I did not have
any rights at all. In other words my fundamental constitutional rights were trample
upon whilst I was in the Republic ofGhana without a service ofprocess.
In Ross v National Center for Employment ofthe disabled, 197 S.W.3d 795
(Tex 2006), the Supreme court of Texas ruled that,
"But the trial court had no jurisdiction either to enter judgment orto enforce
itagainst a party who had neither been properly* served nor appeared*.
Accordingly we reverse".
More important "aparty who becomes aware ofthe proceedings without
proper service ofprocess has no duty to participate in them". Caldwell, 154 S.W.
3d at 97 n.l."In my case I was not served nor was I aware ofthe proceedings and
thus did not appear, hence the said judgment ofJune 1st 2010 be set aside. See
Ross v National Center for employment ofthe Disabled, 197 S.W.3d 795 (Tex.
2006)
17
"A defendant is not bound to take action until he has been duly served with
process". Ross, Id. Hence anyone who is not aware ofthe pendency of a legal
matter before a judicial authority has no duty to actand thus cannot be held
responsible; which means that the court lacks jurisdiction to enter ajudgment. See
Caldwell v Barnes, 154 S.W. 3d 93 96, 97.
D
LACK OF PERSONAL JURISDICTION
A VIOLATION OF MY FUNDAMENTAL CONSTITUTIONAL RIGHTS
ARBITRARY DEPRIVATION OF PROPERTY*
It is crucial to state more clearly that lack of service or no service at all leads
to lack ofjurisdiction to enter ajudgment and the publication ofnotice in a
newspaper is ineffective to establish personal jurisdiction over the defendant.
Pennoyer vNeff, 95 U.S. 714 733 (1878); Caldwell vBarnes, 154 S.W. 3d 93 96-97
(2000) per curiam; Armstrong vManzo, 380, US 544 550 (1965); Mullane v
Central Hanover Bank &Trust Co 339 U.S. 306 (1950). In other words a court must
have jurisdiction in order to enter avalidly enforceable judgment. Thus the claim
that was made by Maureen Bankas in case no DF-09-13471 in respect to the
18
custody of our children, child support and community property ie our house at
Sachse Texas, requires strict adherence to due process of law. See Peralta, 485 U.S.
80 (1988); Armstrong v Manzo, 380 U.S. 545 550 1965. This means that Ernest k.
Bankas should have been given notice in sufficient detail that there is a legal
matter pending before the Dallas district court that will have an effect on his life,
liberty andproperty, Id. But this fundamental right was denied to Ernest K Bankas,
because there is no evidence of actual service of process and return of service in
regard to the saidcase. Mullane v Central Hanover Bank & Trust Co 339 U.S. 306
314 1950. See also ('constitutional due process ', 14th Amendment section 1; and
the 5th Amendment which is applicable through the 14th Amendment due process
clause to limit the arbitrary power of the states).This means that where there is a
clear evidence as in my case that there was no notice of a trial setting or actual
service of process to inform me ofthe pendency of a legal action, then the US
constitution mandates that thejudgment in the said case must be declared
unconstitutional and set aside. Peralta v Heights Medical Center 485 U.S. 80
(1988).In this respect, the aim ofthe founding fathers was to allow surplus of
justice, good faith and good conscience to overcome arbitrary and unnecessary
pain*.see the 14th Amendment section l;the 5th Amendment; see also Pennoyer v
Neff, 95 U.S. 714 24 LED 565(1878). Mullane v Central Hanover Bank &Trust Co
339 U.S. 306 (1950); Bell v Burson, 402 U.S. 535,542.
19
There was therefore an egregious assault on the due process clauses of the
US Constitution in regard to my case; for thejudgment in the divorce decree,( case
no. DF—09-13471) is repugnant to the due process clauses of the Fifth and
Fourteenth Amendments of the United States Constitutionbecause I was not in the
United States and thus was not given any notice of a legal matter that would have
to be contested and therefore must be declared unconstitutional for it runs counter
to civilized values and fundamental fairness. See. (Procedural due process).Snyder
v Massachusetts, 291 U.S. 97 105 (1934); Goldberg v Kelly 397 U.S. 254, 267
(1970); Fuentes v Shevin, 407 U.S. 67,92 SCt. 1983, 32 LEd 2d 556 1972.
With the greatest respect to the court ofAppeal, Ernest KBankas, hereby
humbly requests the court to determine that the trial court in the first instance was
without jurisdiction* to enter the said aggrieved judgment ofJune 1st 2010, case no
DF -09-13471, since I was never given a day in court to confront my accuser.
(Quasi criminal issues) Pointer vTexas 1965 380 U.S. 400,406; US Constitution 6th
Amendment; and in that context my due process was blatantly violated. See also
Peralta vHeights Medical Heights Center. 485 U.S. 80 1988.Mullane vCentral
Hanover Bank and Trust Co 339 U.S. 306 314 1950.
The important question* that must be asked at this juncture is whether a
hearing can be conducted and ajudgment handed down against aUS citizen who
was then living in the Republic of Ghana IN ABSENTIA without notice of atrial
20
setting, and thereafter to have the said infirm judgment enforced by placing the
plaintiff in this case behind bars without giving deference to the 14th amendment of
the US Constitution, section 1? The answer must be in the NEGATIVE for the
enforcement of the judgment in case no DF-09-13471 on the 8th of April 2014 and
November 19th 2014 against me by Judge Lynn Cherrywas a blatant violation of
my federally protected rights. See. Mullane v Central Hanover Bank and Trust Co
339 U.S. 306,314 1950; Armstrong v Manzo 380 U.S. 545 550 1965.Peralta v
Heights Medical Center Inc. 485 U.S. 1988.Pennoyer v Neff, 95 U.S. 714 24 L
Ed.565 (1878); Bell v Burson, 402 U.S. 535 542.
*Furthermore I was also maliciously prosecuted by Maureen Bankas and
her counsel Mr. Ryan Bauerle, and therefore I have a cause of action against them.
Ex-Parte Roosth, 881 S.W. 300 Tex. 1994; Hicks v Feiock 485 U.S. 624 1988. As a
matterof law, a person cannot be held in contempt for failing to perform an act that
he is incapable of performing; and the 301st District court cannot hold a person in
contempt for something that is beyond its power to order. Hicks v Feiock, 485 U.S.
624 (1988). Thus if contempt is classified as quasi criminal in respect to child
support obligation in order to influence the behavior of citizens* inTexas, then the
US constitution affords greater safe guards in the contempt proceedings including
the requirement that the offense be proved beyond a reasonable doubt. Ifthis is
21
ignored as in my case, then there is a clear violation of due process of law *. Id 485
U.S. 631-635.
In Peralta, the Supreme Court ofthe United States ruled INTER ALIA that,
"Even if no execution sale had yet occurred, the lien encumbered the
property and impaired the appellant's ability to mortgage or alienate it; and state
procedures for creating and enforcing such liens are subject to the strictures of due
process, see Mitchell v W.T. Grant company,416 U.S. 600 604( 1974);Hodge v
Muscatine 196 U.S. 276 281(1905). Here, we assume that the judgment against him
and the ensuring consequences occurred without notice to appellant, notice at a
meaningful time and in a meaningful mannerthat would have given him the
opportunity to be heard. Armstrong v Manzo, supra at 552".
Thus in the light of the force and thrust of the judgment in Armstrongv
Manzo, the saidjudgment in Maureen Bankas v Ernest K. Bankas case no DF-09-
13471, must be declared unconstitutional for I was never servedwith a process and
thus was not aware of the pendency of any legal matterbefore the said courtand
therefore the trial court lacked jurisdiction to enterthat aggrieve judgment against
me. See Caldwell v Barnes 2004 per curiam. The action of the 301st district court
ofDallas Texas in regard to my case was repugnant to the 14th Amendment section
1; because our house, cars, personal property and other important personal effects,
22
were arbitrarily taken away from me; including the attachment of my bank
accounts and the placement of restriction on my passport without service of
process or notice of trial setting*. In sum my fundamental constitutional rights
were trample upon and therefore the judgment in issue be set aside in order to
allow justice to take a comfortable place in my case. Mullane v Central Hanover
Trust & Co, 339 U.S. 306 314(1950).
With respect, the trial court judge Lynn Cherry in the first instance abused
her discretion by acting with a deliberate punitive measure to punish me and she
treated me without tolerance and forbearance because she was reluctant to reverse
her own infirm judgment. This inherently EX-HYPOTHESI resulted in a complete
miscarriage ofjustice and therefore on point of law presents an exceptional
circumstances that patentlyjustify the setting aside of case no DF-09-13471, for
again Judge Lynn Cherry's judgment clearly conflicts with Peralta v Heights
Medical Center, 485 U.S. 80 (1988) and In re ZJW, 186 S.W.3d 906, 906 (Tex.
App.- Tyler 2006,no. pet),respectively; and therefore must be declared
unconstitutional.
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E.
UNLAWFUL COVICTION OUT OF AN INFIRM OR
UNCOSTITUTIONAL JUDGMENT OF 2010: CASE NO DF-09-13471:
THE VIOLATION OF PROCEDURAL DUE PROCESS
It is humbly submitted that "a court may enter judgment against a non
resident only if the party is personally served with process while in the state; or has
property within the state and that property is attached before litigation begins, ie
"Quasi in rem jurisdiction". Pennoyer v Neff, 95 U.S. 714 733 (1878). Furthermore,
notice by publication is clearly inadequate to satisfy the due process clauses of the
United States Constitution, particularly if a fundamental constitutional right is at
stake. See (The 5th and the 14th amendments to the US constitution).Thus 'notice
given to out of state parties by publication in a newspaper, when the parties'
addresses were known is unconstitutional' in the light of the due process clause of
the 14th amendment section1. See, Mullane v Central Hanover Bank and Trust
Co.339 U.S. 306,70 S.Ct. 652,94 L Ed 865 (1950).Hence the enforcement of the
said INFIRM judgmentin Maureen Bankas v Ernest K. Bankas, case no DF-09-
13471, against me on April 8th 2014 and November 19 2014, violated the 14th
24
Amendment section 1,ofthe US constitution because I was never served in the said
prior judgment and never appeared and therefore I am pleading with the court that
I should be accorded RESTITUTIO IN INTEGRUM for the days that I was kept
behind bars at the Dallas county jail. To the candid mind, my federally protected
rights were abused and trampled upon by Judge Lynn Cherry of the trial court in
the first instance because I was never served. See the 14th amendment section 1.
In Mullane, Justice Jackson after having carefully considered the issues in
the case ruled INTER ALIA thus,
"It will be idle to pretend that publication alone, as prescribed here is a
reliable means of acquainting interested parties of the fact that their rights are
before the courts*. It is not an accident that the greater number of cases reaching
this court on the question of adequacy of notice have been concerned with actions
founded on process constructively served through local newspaper*. Chance alone
brings to the attention of even a local resident an advertisement in small type
inserted in the back pages of a newspaper, and if he makes his home outside* the
area of the newspaper's normal circulation, the odds that the information will never
reach him are large indeed*. The chance of actual notice is further reduced when
,as here ,thenotice required does not even name those whose attention it is
supposed to attract, and does not inform acquaintances who might call it to
25
attention. In weighing its sufficiency on the basis of equivalence with actual notice,
we are unable to regard this as more than a feint".( See the majority opinion).
On legal and logical grounds, substitute service must be characterized as a
prototypical bias against the defendant and therefore must be accepted as a clear
violation of procedural due process which stipulates that there should be
fundamental fairness in anyjudicial proceedings, coupled with the need that every
citizen must be given proper notice before being deprived of his or her liberty or be
thrown into prison. In otherwords substitute service does not bearan adequate
'INDICIA OF RELIABILITY' and therefore may lead to a miscarriage ofjustice.
Certainly in my case I did not receive fair and equitable treatment because I was
never served and moreover I was in Ghana when my constitutional rights were
violated. See, Mullane v Central Hanover Bank & Trust Co, 339 U.S. 306(1950).
Hence it is submitted that the said INFIRM judgment in issue be declared
unconstitutional. Id.
Furthermore the US Supreme Court in the final analysis held in Mullane
that,
"We hold that the notice of the judicial settlement of accounts required by
the New York Banking law 100-C (12) is incompatible with the requirement of the
fourteenth Amendment as a basis for adjudication depriving known persons whose
26
whereabouts are also known of substantial property rights. Accordingly the
judgment is reversed and the cause remanded for further proceeding not
inconsistent with this opinion". Id.
In this respect, what the Supreme Court was explaining to us was that notice
must be reasonably calculated to adequately inform litigating parties ie the
defendant of the pendency of a legal proceeding before deprivation at issue takes
place before a local judicial authority and that substitute service is inadequate and
therefore runs counter to the US constitution particularly if life, liberty or property
can prima facie be determined to be at stake. Mullane v Central Hanover Bank and
Trust Co, 339 U.S. 306 314 1950.
Again, in Maureen Bankas v Ernest K. Bankas, ie in case no DF-09-13471,
I was never personally served or given actual notice of the trial setting for I was
then resident in the Republic of Ghana and therefore my constitutional due process
right was violated, which means that the enforcement of the said INFIRM
judgment against me by putting me in the county jail onthe 19th of November 2014
and 8th of April 2014 is repugnant to the due process of law( the 5th 14th and 6th
Amendments of the US constitution), and civilized values. Pointer v Texas, 380
U.S. 400 406 (1965)*, and the reason being that I was deprived of the right to
confront my accuser since a Childsupport obligation under Texas law is quasi
27
criminal in character. See, Hicks v Feiock , 485 U.S. 624( 1988); Pointer v
Texas,380 U.S. 400,406.
In Hicks v Feiock, the US Supreme Court ruled INTER ALIA that,
"Nonetheless, if such a challenge is substantiated, then the labels affixed to
the proceeding or to relief imposed under state law are not controlling and will not
be allowed to defeat the applicable protections of federal constitutional law. Ibid.
This is particularly so in the codified laws of contempt, where the civil and
criminal labels of the law become increasingly blurred."
"These distinctions lead up to the fundamental proposition that criminal
penalties may not be imposed on someone who has not been afforded the
protection that the constitution requires of such criminal proceedings, including the
requirement that the offense be proved beyond a reasonable doubt. See eg
Gompers, supra at 444; Michaelson v United States ex rel. Chicago, St. P., m. &
O.R. Co ,266 U.S. 42 66 1924".Id 626.
Thus in the light of the fact that the civil and criminal aspects of contempt
laws are increasingly blurred, judges in Texas* continue to use this loop hole to put
fathers in jail by violating the due process clause since thesejudges follow the
principle of mandatory presumptions instead of a fair prescriptive inferences, and it
will be expedient if the legislatures in the country will repeal these laws in order to
28
promote the rule of law and to protect fathers right. Hicks v Feiock, 485 U.S. 624
(1988), for we are not living in the historical epoch of 1850's where individual
liberty was trampled upon with impunity. See the 14th Amendment section
1.(1868).
In fact, as has been noted elsewhere my constitutional rights, human rights
and civil rights were violated because I was never served, and thus was not resident
in Dallas Texas ie, the US when the hearing in dispute was conducted and a
judgment was rendered against me in 2010.Again let it be submitted that I was in
the Republic of Ghana when my constitutional due process right was violated. It
will therefore be legally expedient if this case is investigated by the Attorney
General* of the United States* in order to allow justice to take a comfortable place
in my case. This is particularly so in view of the fact that my constitutional rights
were blatantly abused and violated.
No citizen of the United States should be treated the way I was treated
because we have a constitution that must be respected and enforced without fear or
favor. The decision of the 301st Judicial District of Dallas Texas PRIMA FACIE,
destroyed the opportunity to be my best self because my liberty was taken away
from me in violation of the 5th 14th and the 6th Amendments of the US Constitution.
29
To be specific, Judge Lynn Cherry blatantly took away my legal right of
uninterrupted enjoyment of life by putting me in jail for more than 145 days
because of her INFIRM judgment of June 1st 2010, without giving deference to the
thrust and force of the US Constitution. See, Mullane v Central Hanover TR Co
339 U.S. 306 (1950); Georgia Power Co v City of Decatur,50 SCt. 369,281 505 74
L. Ed. 999; Armstrong v Manzo,380 U.S. 544 550 1965;Peralta v Heights Medical
Center Inc,485 U.S. 80 (1988);Pointer v Texas 380 U.S. 400 406 (1965), the
confrontation clause of the 6* Amendment of the US constitution applies through
the 14*amendment due process clause to limit state action that is arbitrary; Pointer
v Texas ;see also Ross v National Center for the Development for the disabled,
197 S.W.3d 795 (Tex. 2006) in respect to due process of law; Lopez v Lopez, 757
S.W.2d 721 (1988).
All that is being humbly put across to the Appeal Court is that failure to give
notice violates the most rudimentary demands of due process of law and this EX-
HYPOTHESI cannot be disputed because of the well- established precedents of the
US Supreme Court. See Mullane v Central Hanover Bank and Trust Co, 339 U.S.
306 314(1950); Armstrong v Manzo, 380 U.S. 545 550 (1965).Peralta v Heights
Medical Center Inc, 485 U.S. 80 1988,
The judgment ofJune 2010, DF-09-13471 by judge Lynn Cherry IN
ABSENTIA, without according me due process is repugnant to the due process
30
clause and equal protection clause. It also violatedthe supremacy clause of the US
constitution and therefore must be declared null and void in order for civilized
values to take a comfortable place in the judicial process or in our hearts and
minds.
It is forcefully submitted here that in Texas a Child Support obligation
cannot be reduced to judgment without giving notice to the person obligated to pay
it .See, In re ZJW,185 S.W.3d 906 (906 Tex. App-Tyler 2006,no petition) United
States v Fleming,556 SW 2d 87 90 (Tex. Civ. Appeal-El Paso 178. No writ); In re
OAG Tex. App-Houston (14* august 19 2008).
As a matter of law, the Supreme Court of Texas has ruled that no one should
be sent to jail if he does not have the wherewithal to pay his child support
obligation, which means that it is the responsibility of the obligor to raise 'an
inability to pay as a defense and to prove that inability by the preponderance of
evidence'. See, Exparte Roosth 881 S.W.2d 300 (Tex. 1994).In this regard, the state
of Texas or the court as a matter of law cannot prove otherwise. Id. I did follow
these principles to the letter and yet Judge Lynn Cherry violated my rights by
putting me in jail. This is a blatant violation of my due process right under the US
constitution. See Hicks v Feiock 485 U.S. 624 (1988).
31
The judgment in Hicks v Feiock, 485 U.S. 624(1988) already cited
elsewhere, shows clearly that my constitutional due process right was violated
when I was jailed, because if child support obligation is classified as patently quasi
criminal in Texas then the US constitution requires that greater safeguards be given
to the defendant under the 6* Amendment, whereby the contempt proceedings will
be based on constitutional criminal law principles including the requirement that
the contempt offense be proved beyond a reasonable doubt in view of the fact that
Child support enforcement in Texas is quasi criminal. Id 485 U.S. 631-635.In my
case, I was not accorded any constitutional safeguards underthe US constitution.ie
the 6* Amendment, which means that judge Lynn Cherrywas biased and blatantly
ignored the force ofthe 6* amendment ofthe US Constitution with the intent just
to punish me.
BEFORE A CHILD SUPPORT OBLIGATION IS REDUCED TO
JUDGMENT, DUE PROCESS MUST BE ACCORDED TO THE PERSON
OBLIGATED TO PAY IT:
Although already considered briefly elsewhere; itis worth emphasizing that
there is a well-established precedent inTexas that a child support obligation cannot
32
be reduced to judgment without due process of law. Thus in In re OAG (Tex. App-
Houston 14* dist. 2008) per Brown, the Appeal court rule that,
"A claim for child support may not be reduced to judgment without proper
notice to the one who is obligated to pay it." United States v Fleming, 566 S.W.2d
87 90 (Tex. Civ. Appeal-El Paso 178. No writ); therefore the OAG's lawsuit to
establish paternity and order child support remains subject to the requirements of
STRICT COMPLIANCE with the rules concerning proper citation and return of
service. In re Z.J.W; 185 S.W.3d 906, (906 Tex. App-Tyler 2006, no. petition).
Thus the attempt by the office of the Attorney General to place a lien on the
defendant's property and to impose child support on Bailey without notice in the
case of (In re OAG Tex. App-Houston (14* Dist. August 19, 2008), was set aside
and the lien wrongfully placed on his property was extinguished.
It is further submitted that a child support default judgment that is
procedurally defective because of improper service or no service or notice is void
and must be reversed. See Turner v Ward, 910 S.W.2d 422 426 Tex. App-
Texarkana, 1998. No pet. ).It is also worth noting that a trial court will hear a case,
including child support, only afterproper notice has been given to the parties. See
Welborn-Hosler v Husler, 870 S.W.2d 323 328 (Tex. App Houston (14* Dist., 1998
no writ; Turner V Ward, 910 S.W.2d 425 428 (Tex. Civ. App-Fort Worth
1977.Hence the child support obligation that was imposed on me IN ABSENTIA,
33
in the said judgment on JUNE 1st 2010 without service ofprocess is repugnant to
the due process clause of the 14th Amendment section 1, and therefore must be set
aside. In the main, the judgment against me is in conflict with In re Z.J.W. 185 S.W.
3d 906.(Tex. App- Tyler 2006,no. pet); and the 14* Amendment sectionl.
As has already been stated elsewhere, the trial court in Maureen Bankas v
Ernest Bankas ( DF-0913 47, which handed down the said aggrieved judgment in
June 2010, lacked jurisdiction and no man should be punished under a law that is
repugnant to the US Constitution; Ex parte Sie bold, 100 U.S. 371, 25 L. Ed. 717.
It is worth emphasizing again that no state nor any of its agencies may
disregard the prohibitions of the fourteenth Amendment. Georgia Power Co V.
City of Decatur, 50 SCt. 309,281 US 505, 74 L. Ed. 999.Thus in spite of the above
authorities a child support obligation was unconstitutionally imposed on me whilst
I was in the Republic of Ghana, wherein my bank accounts were attached, my
house was taken away from me and currently a levy has been issued against my
real property in the county of Dallas. These actions are in violation of the due
process of law in view ofthe fact that the said legal actions are subject to strict
compliance with the 'rules of proper citation and return of service'(due process of
law): Armstrong v Manzo, 380 U.S. 544 550 1965; In Re OAG (Tex. App-Houston
(14* Dist) August 19,2008); Fuentes V Shelvin, 407 U.S. 67 7992 SCt 1983,32 L
34
Ed 2nd 566; Peralta v Heights Medical Center Inc. 485 U.S. 80 (1988).Mullane v
Central Hanover Bank and Trust Co 339 U.S. 306 314 (1950).
It is here submitted that failure by the trial court to follow the US
Constitution ie the 14* Amendment section 1, demands that the judgment of June
1st 2010 be declared unconstitutional.
G.
SUMMARY OF CONSTITUTIONAL ARGUMENT
A PLEA THAT THE JUDGMENT OF JUNE 1st 2010 BE SET ASIDE
BECAUSE IT IS IN VIOLATION OF DUE PROCESS OF LAW.
Liberty is the faculty of willing and doing what has been willed without any
force from within and from without and rights are those conditions necessary for
an individual to develop to become his best self, and these legal ideals have been
carefully enshrined into the US Constitution (see the Bill ofRights) and the 14*
Amendment of the US Constitution; by the founding fathers in order to promote
the rule of law in the United States.
Let it be made clear also that an unconstitutional Act is not a law, it confers
no rights, it imposes no protection, it creates no office, and it is in legal
contemplation, as inoperative as though it had never been passed and must be
35
disregarded by all courts recognizing the US Constitution as the paramount law of
the land. Wolf V. city of New Orleans, 103 U.S. 358, 13 U.S. 358 26 L. Ed. 395; see
also Armstrong V Manzo, 380 U.S. 544 350 1965; Mullane v Central Hanover Bank
Trust Co 339 U.S. 306 314 1950.Hence the taking of my house at Sachse, Texas
away from me without due process of law is an arbitrary deprivation of substantial
property right in violation of the US Constitution; Mullane v Central Hanover
Bank & Trust Co,339 U.S. 306 314 (1950);Fuentes v Shevin 407 U.S. 67 92 SCt.
1983,32 L Ed 2d 556 1972, and PRIMA FACIE also in violation of my civil
rights*. In fact, again it is submitted that I was treated as if I did not have any
rights at all because the trial court deprived me of my fundamental constitutional
rights.( see The 5th and the 14* Amendments of the US Constitution) and when I
sent in a motion to inform the court that my due process right has been violated,
judge Lynn Cherry ignored it and instead put me in jail. This is wrong and simply
runs counter to civilized values and the spirit of the US Constitution.
It is important to emphasize one more time that the fundamental requisite of
the due process of law is that every citizen must be given the opportunity to be
heard in order to implead his or her accuser. Thus according to the US Constitution
ie the 14* Amendment section 1, every citizen must be accorded the right to be
heard before being condemned to suffer harm or grievous loss of any kind, ie, life,
liberty andproperty. In my case, I was never given the opportunity to be heard and
36
never appeared before the said court to implead my accuser and therefore the
judgment in the divorce decree of June 1st 2010, imposing child support on me and
taking my children away from me is unconstitutional under the US Constitution
and Texas Constitution respectively: see also In re ZJW, 185 S.W.3d 906, 906(Tex.
App-Tyler 2006. No pet)*; United States V Fleming, 565 S.W.2d 87, 90 (Tex. Civ.
Appeal-El Paso 1978, no writ; In re OAG (Tex.-App-Houston (14* Dist.) August
19, 2008: Armstrong v Manzo, 380 U.S. 544 550 (1965)*.
Furthermore, in Peralta v Heights Medical Center, which was a Texas case,
duly litigated before the Supreme Court of the United States in which Peralta's due
process right was violated, the highest court of the land ruled as follows,
"Under our cases, a judgment entered without notice or service is
constitutionally infirm*.An elementary and fundamental requirement of due
process in any proceeding which isto be accorded finality* is notice reasonably
calculated, under the circumstances, to apprise interested parties ofthe pendency of
an action and afford them the opportunity to present their objections*."Mullane v
Central Hanover Bank and Trust Co.339 U.S. 306,314 1950*.Failure to give notice
violates the most rudimentary demands of due process*Armstrong v Manzo, 380
U.S. 545 550 1965."
37
In the light of these established precedents, the Supreme Court in the final
analysis unanimously reversed the earlier decision of the Supreme Court of Texas
because Peralta was not personally served or given notice of any pending legal
matter as required by law. (The 14th Amendment Section 1).
I was also never actually served or given notice, and therefore it is here
submitted that, as an injured US citizen, I should be accorded RESTITUTIO IN
INTEGRUM, which must be applied to restore to me whatever I had lost STATUS
QUO ANTE, for as a result of the said infirm judgment my house was taken away
from me and whatever I had acquired ie my separate property had been sold. I was
also put in jail in violation of the US Constitution. To be sure I lost over
$170,000.00, and to date my BMW 740i, Benz E 300 and electronics with 8
speakers are nowhere to be found. Accordingly, the said matter has been reported
to the FBI.
Again the judgment in case no DF-09-13471 is in conflictwith Ross v
National Center for the employment of the disabled 197 S.W.3d 795 (Tex. 2006) as
well as the Supreme Court judgment in Mullane v Central Hanover Bank& Trust
Co 339 U.S. 306 314 1950, hence the said judgment in issue be set aside or declared
unconstitutional since it is in violation of the due process clause ofthe 14*
Amendment section 1, of the US Constitution.
38
Another purpose of this brief is to beg leave of the Appeal Court or to appeal
to the good conscience of the Appeal Court to follow the principle of STARE
DECISIS ET QUIETA NON MOVERE meaning that the court 'must stand by
things decided' and not disturb settled cases or well- grounded precedent in respect
to the issues in this dispute because the US Constitution is UNIVOCAL and
SUPREME. (See the Supremacy Clause, Article VI of the US constitution); and no
one is above the law.
WHEREFORE, petitioner or plaintiff humbly prays the court to use its good
offices to set aside the said judgment because I was never served nor given any
actual notice of trial setting as required by due process of law under the US
Constitution.
39
Respectfully Subm
Ernest K. Bankas, PhD in law, 2001, University of DURHAM, England UK,
SJD, 1990, SMU LAW SCHOOL Dallas, Texas. An international lawyer. Esq.
Pro se.
Certificate of Service
I hereby certify that a true and correct copy ofthe foregoing brief in support
of myAppeal was duly served on the defendant Day or to counsel on
record.
Declaration.
I ErnestK. Bankas do hereby declare under penalty of perjury that the above
foregoing statements in regard to the above case orjudgment are true and
correct ,and I live at 9750 royal lane 1317 Dallas TX 75231.
Executed on....ffy.fl.'...fl.T.t..30.
Signature.
40
Notary Public... Ll/Sdltt....M&Z&.ll.
Signature
Chris* Merrell
Notary PuWic
STATE OF TEXAS
My Cam Exp. S«pt 22,2016
41