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Silviera v. Bank of America, N.A.

United States District Court, D. Hawaii

April 27, 2017

DARVON PETER SILVIERA and GAIL LYNN PALAUALELO, Plaintiffs,
v.
BANK OF AMERICA, N.A., et al., Defendants.

          ORDER DENYING EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER AND ALTERNATE MOTION TO STAY ORDER OF EJECTMENT AND SHERIFF'S SALE

          Derrick K. Watson, Judge

         INTRODUCTION

         On April 25, 2017, Plaintiffs Darvon Peter Silviera[1] and Gail Lynn Palaualelo (“Plaintiffs”), proceeding pro se, filed a “Notice and Complaint for a Void Judgment for Lack of Subject Matter and Personum Jurisdiction and for Civil Rights Violations” (“Complaint”) and an Emergency Motion for Temporary Restraining Order and Alternate Motion to Stay Order of Ejectment and Sheriff's Sale (“Motion for TRO”). Dkt. Nos. 1 and 2. Plaintiffs seek to void an unspecified state court order relating to foreclosure proceedings and prevent ejectment from their residence, although they provide no details regarding any threatened or impending eviction.

         It is difficult to discern any cognizable claims set forth in the Complaint, and any mention of statutory causes of action lack plausible, supporting factual allegations. Because Plaintiffs fail to establish that they are entitled to the relief they seek, the Motion for TRO is DENIED.[2]

         DISCUSSION

         Mindful that Plaintiffs are proceeding pro se, the Court liberally construes their pleadings. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court has instructed the federal courts to liberally construe the ‘inartful pleading' of pro se litigants.”) (citing Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)).

         I. Plaintiffs' Claims

         The Complaint states that Plaintiffs seek to “void judgment of the order from the Circuit Court of the First Circuit of the State of Hawaii, Civil number: 11-1-3159-12, for Lack of Personum and Subject Matter Jurisdiction.” Complaint at 2. Plaintiffs “further complain[] of the illegal foreclosure and eviction from their primary residence, in violation of the United States Constitution. [They] also allege violations of civil rights and due process caused by the simulated legal process and criminal contempt of court by [defendants].” Complaint at 2-3. Attached to the Complaint is the first page of a Writ of Possession issued by the Circuit Court of the First Circuit, State of Hawaii, dated March 20, 2017, in Bank of America, N.A. v. Darvon Peter Silveira et al., Civ. No. 11-1-359-12, which in turn references an Order Confirming Foreclosure Sale, Approving Commissioner's Report, Allowance Of Commissioner's Fees, Attorney's Fees, Costs and Directing Conveyance filed on April 28, 2016. See Complaint, Ex. 1, Dkt. No. 1-2. As best the Court can tell, Plaintiffs now attempt to forestall execution of the state court Writ of Possession or enforcement of other state court orders related to the foreclosure proceedings. It is not clear whether any defendant has taken steps to evict Plaintiffs, whether Plaintiffs have already been evicted, or whether a final judgment has been entered in the state court foreclosure proceedings, Civ. No. 11-1-359-12.

         The Affidavit of Darvon Peter Silviera describes the instant Complaint as one “for a void judgment, unlawful eviction, civil rights violations, denial of due process and other crimes against humanity.” Silviera Aff. at 29. Although the named defendants are private corporations and individuals, the Affidavit complains of conduct by unidentified “agents and officers of the State of Hawaii operating under the color of law.”[3] Silviera Aff. ¶ 1. According to Silviera - 2. The feigned legal process described as a “Summary Judgment” deprived me of my rights and my lawful due process by and through the conspiracy employed by the financial institution known as Bank of America, N.A. to lien, Mortgage, or otherwise Steal Royal Patent Lands.

3. The membership of the bar by all parties to the subject feigned legal process, exposes the underlying fraud and conspiracy by which the R.I.C.O. activities have occurred.
5. Be it known to all who call themselves “government/corporations, ” their “courts, ” agents, and other parties, that I, am a natural, freeborn sovereign individual, without subjects. I am neither subject to any entity anywhere nor is any entity subject to me. I neither dominate anyone, nor am I dominated by anyone except the Creator and Supreme Governor Almighty and Great God, Akua.
6. I DO NOT recognize and cannot be held in contempt of any law that cannot show a named individual victim(s), nor can I be held liable or in contempt of any law that cannot show any property that has been stolen or damaged from any individual or individuals.
7. I am not a “person” as defined in “statutes” when such definition includes “artificial entities.” I refuse to be treated as a “federally” or state” created entity which is only capable of exercising certain rights, privileges, or immunities as specifically “granted by” “federal” or “state” “governments.”
11. . . . From my age of consent to the date affixed below I have never signed a contract knowingly, willingly, intelligently, voluntarily, and intentionally whereby I have waived any of my natural inherent rights, and, as such, take notice that I revoke, cancel and make void from the beginning my signature and on any and all “contracts, ” “agreements, ” “forms, ” or any “instrument which may be construed in any way to give any agency or department ...

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