Court Clerks cannot refuse to file a document for form

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M. R. Hamilton M. R. Hamilton's picture
Court Clerks cannot refuse to file a document for form

Sometimes a court clerk might refuse to file a document because it does not meet certain form guidelines.  A clerk is not permitted to refuse filing a document for form as required by rule 5.(d)(4) of the Federal Rules of Civil Procedures specifically state,

5.(d)(4) Acceptance by the clerk. A clerk must not refuse to file a paper solely because it is not in the form prescribed by these rules or by a local rule or practice.

This is an important rule especially for those who are preceding in a court of record. Although a court of record proceeds according to common law, the sovereign can choose the Federal Rules by which to proceed. This is one of the ways to get a clerk to do his job. Since law is the decree o the sovereign, sovereigns can decree that some statutes apply in his case.

A court clerk does not have the authority to make any decisions. His duties are ministerial and not tribunal. The tribunal is who gets to make the decisions regarding the quality of a paper. So if at first a clerk will not fuile your papers. simply state politely that he file them on demand. If that fails, present the clerk with an order from the court of record. You may have to mail if by registered mail before the clerk will comply.

As you will see in the attached template, the anyone who removes a document from the record can be punished for up to three years in prison according to.

18 USC § 2071

(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.

(b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.

There is also case law that specifies that a document is filed once it is delivered to the clerk. It does not have to be stamped and sign. That is done merely to designate a time of filing. In one case, the court opined that a document is filed even if delivered to a deputy clerk at night at his home.

it is settled law that delivery of a pleading to a proper official is sufficient to constitute filing thereof. United States v. Lombardo, 241 U.S. 73, 36 S. Ct. 508, 60 L. Ed. 897 (1916); Milton v. United States, 105 F.2d 253, 255 (5th Cir. 1939). In Greeson v. Sherman, 265 F. Supp. 340 (D.C.Va.1967) it was held that a pleading delivered to a deputy clerk at his home at night was thereby "filed." (Freeman v. Giacomo Costa Fu Adrea, 282 F. Supp. 525 (E.D.Pa. 04/5/1968).)

Read the rest of the Order to the Clerk attach hereto. It has good information regarding the duties of the clerk.

I remember, do not argue with a deputy clerk. Nobody ever wins an argument. The deputy clerk is not someone who you debate law with. They are simply paper warehousers. and do not usually comprehend such things. Send you order directly to the clerk along with a letter explaining the crime being committed by the deputy clerk and he will usually perform his duties as the law requires.

Do not forget to edit the template. Everything in red font need to be update. You may also want to change the header to better suit local practice.

File Attachments: 
B.W. Cornwell B.W. Cornwell's picture
OTT file

I don't have a way to open the Order To Clerk.ott file. There's nothing in my registry that recognizes it and I think it's a file from your phone app. But I don't have the solution. I did a quick search online and didn't find a program that would open it. I don't know what the info is but I like to be able to read all associated info if possible. Thank you.

M. R. Hamilton M. R. Hamilton's picture
Libre Office a Free Ofiice Suite

It can be opened with Libre Office, OpenOffice.org, or OOO, I believe Star Office and probably a few other open source programs. I don't write docs on my phone. That would be way to cumbersome.

Libre Office is my office suite of choice. They all do about the sme thing. It can be downloaded here. https://www.libreoffice.org/download/libreoffice-fresh/

 

Liberty and ignorance cannot co-exist, because
"He who sleeps on his rights has none."

Superior Court Chief Justice #462751

HELEN DAVIS
my husband is dealing with this as we speak

My husband is experiencing just this the clerk refuse to file is documents, he file a notice of objection with a fl300 asking the judge to be seen in superior court in the main court building in san Diego , also adding the rest of his payments that is awarded back to him, and contesting a lean on his reward as property, so my husband goes to the clerk office on the 4 floor in san Diego main court building, so the clerk after she went through all documents, made sure they were in order and signed took all the fl300 rfo out, and said he didn't need to file them and the mother didnt need a copy, but my husband said no i want all party to have a copy, the judge, the child support dept, the mother, and one for the court file and he had his copy, so when my husband left he found out they took several items out, he filed 20 declaration only 15 were accounted for, smh, what happened was before i met my husband he was living with his girlfriend in sf county both working fulltime having great jobs. and they have two grown sons together, now the mother lived in san Diego briefly got aide, moved back to sf county working fulltime kept her benefits going, while living and working in sf county, and getting child support and welfare in san Diego, keep in mind nether party lived in san Diego, the way my husband found out, he knew his wages were being garnished but he thought it was from his ex wife in san Diego for his older boys, but come to find out the very woman he was living with, got benefits , was convicted of three felony counts of welfare fraud plus impersonations, was sentence, lied in her felony arraignment, saying she did not know the father whereabouts, which allowed her to get child support in a county she was not residing in still to this day she has been living in sf county from 91 to present day, so in 1998 my husband got a equitable offset ie jackson credits for time living with the children from 92 97 because the balance he owed was 2046 11-92-4-93 pos started with that amount to rocoup the state benefits the mother got, but at that time my husband did not know it was derived from fraud, so the county knew for 23 years the mother got convicted in another county while living in sf county, force and compelled my husband to pay child support, then in 2000 they consolidated to sf county dcss, and made another order, and my husband is still paying to this day, so my husband put in motion in 2014 to get all of his money back because it should of never been a order made in san diego period, so they send it over to san diego family court in another building and the law states that family court do not hear ivd case state welfare case the child support department courts judge family judge or commissioners hear those type of cases, so the family judge reward my husband the 2046 from 92 to present day, and sent it back to the child support department to rule on the interest because it derived from the child support department and they have the jurisdiction to rule on the interest, so it gets back to the commissioner my husband objects to him ruling on the case because the child support attorney said the judge change her after order with out providing proof, so were here now putting in a fl666 notice of objection and a fl300 for this case to be seen my a superior court judge in the main court central building because this case derived from he child support department and the pos is based on fraud, and i am adding all the payments the child support department took back from me, plus 10 percent interest at the state guidelines , so, the commissioner rewards the 2046 to me but start the interest as of jan this year 2017, and the child support put a lien on the ,money reward as property because all i owe in arrears in 30,000 that it , so i objected to everything, so they clerk refuse to assign it to a family judge in the main court building , the commissioner already had his recommendation and finding attach to the after order so its no need to send it back to the commissioner since i already object to it. then i take my documents back to the clerk and relay these things to her the supervisor keep in mind two deputy clerks told my husband mr Davis your case will be seen by a judge in this building not sent to family court, and guess with the supervisor clerk did sent it to judge in family court out of the building smh so my husband went to the executive office stated these laws you have here, and now we are just waiting ,i am so happy i found this, i was trying to find one for California order to the clerk but its so hard to find, one more thing i hired a big law firm being that my husband is a disabled veteran they worked with the county to botch my case, my case is a simple interest case, base on fraud, that should of never been a child support case opened because the mom never lived in san Diego county smh, she used a friends address so her checks could go there until she got cauht smh, now the county is harassing our family because my husband will not give up his sons our 23 and 29 years old smh, and this case is still going on in sf dcss just crazy, i do not believe in justice anymore, my heart is sunk

thank you so much for sharing great info

 

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