Toronto Dominion Bank v Giercke, 2021 ABQB 262

Court of Queen’s Bench of Alberta Citation: Toronto Dominion Bank v Giercke, 2021 ABQB 262 Date: 20210407 Docket: 1701 04865 Registry: Calgary Between: By special appearance on behalf of the CQVT, assigned at birth to sui juris, Daniel and Marilena, as co-heirs/beneficiaries to GIERCKE, DANIEL - CQVT and GIERCKE, MARILENA - CQVT Plaintiffs by Counterclaim - and - THE TORONTO DOMINION BANK, debtors in fact Defendant by Counterclaim _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D.

Rooke _______________________________________________________ [ 1 ] By letter dated March 19, 2021, Counsel for the Toronto Dominion Bank [TD] referred to the Court a Counterclaim filed on March 9, 2021 by Daniel Giercke and Marilena Giercke [the Gierckes] in a foreclosure action initiated by TD against the Gierckes’

property. The style of cause above duplicates that of the filing in question, since the atypical naming structure and letter case is relevant to the analysis that follows. TD sought to have the Court review the Counterclaim as a candidate Apparently Vexatious Application or Proceeding [AVAP] pursuant to Civil Practice Note No. 7 [CPN7] paragraph 6. I am designated to receive and review potential CPN7 processes in Southern Alberta. [ 2 ] Briefly, the Counterclaim states: 1. the mortgage contract was improperly signed and so TD has no right to foreclose, 2.

TD did not loan any money to the Gierckes, 3. the mortgage money instead flowed from the Gierckes, “private bankers”, to TD, or more specifically, from “... a cestui que vie (CQVT) trust bond at birth which was designed to provide indemnity against liability ...”, and 4. “As the TORONTO-DOMINION BANK, Canada and its agents, heirs, successors does business on Unceded Indigenous Land commonly referred to as Canada, it does not legally own the land or hold proprietary interest to be able to foreclose on it. ...”. [ 3 ] On this basis the Gierckes demand: 1.

Court and THE TORONTO-DOMINION BANK provide all exculpatory evidence to substantiate the TD Bank's priority standing against PLAINTIFFS 2. The court is to provide a court of inherent jurisdiction where equity can be recognized 3. The removal of the TORONTO-DOMINION BANK's claim as they are not a party of standing nor a grantor 4. THE TORONTO-DOMINION BANK to return all credit loaned to them by the grantor/creditor in fact 5. All equitable relief return to Daniel and Marilena as provided by law 6.

Cease and desist on all current and future seizures of the home located at [address redacted by the Court], AB, and including any other assets and monies in bank accounts owned by the claimant [ 4 ] Counsel for TD indicates that the concepts and arguments advanced in the Counterclaim are Organized Pseudolegal Commercial Arguments, or “OPCA”, a category of legally incorrect and abusive strategies marketed to gullible, ill-informed, and often criminal anti-government activists: Meads v Meads , 2012 ABQB 571 .

OPCA schemes are typically applied to evade income tax, as a “get out of jail free card”, to attack government and institutional actors, or, as with the Gierckes’ Counterclaim, as a way to purportedly nullify debts and get free money: Unrau v National Dental Examining Board , 2019 ABQB 283 at para 178 [ Unrau #2 ].

Employing pseudolaw is always an abuse of court processes, and warrants immediate court response: Unrau #2 at paras 180, 670-671 . [ 5 ] After review of the Gierckes’ Counterclaim, I conclude that it does appear to advance OPCA concepts, and, therefore, this AVAP should be subject to a CPN7 “show cause” document-based review. II. CPN7 [ 6 ] CPN7 is a practice implemented by the Court to better manage litigation that, on its face, appears to be unmeritorious, has no prospect of success, or is otherwise abusive and vexatious.

This practice is intended to provide a timely, proportionate, and cost-effective response to the litigants: Unrau v National Dental Examining Board , 2018 ABQB 874 [ Unrau #1 ]. [ 7 ] If, on initial review by the Court, the pleading appears to be unmeritorious, has no prospect of success, or is otherwise abusive and vexatious, then the Court issues a first written decision that identifies the apparent issue(

s) which may be a basis to apply Rule 3.68 and strikeout the pleading. The party who filed the pleading is then given an opportunity, within 14 days, to provide the Court with a Written Submission of up to a total of ten pages in length that responds to, and demonstrates why, the pleading is a legitimate action and should be permitted to continue. The Written Submission must be served on the other parties to the litigation. [ 8 ] CPN7 is not for “close calls”, but instead the Court intervenes by this mechanism when the defect(

s) in question are “apparent on the face of the pleading”, and the suspect pleadings are “clearer cases of abuse”: Unrau #1 , at paras 22, 24 . Only restricted forms of evidence are considered by the Court when it conducts a CPN7 review, since this process has a very narrow focus, and operates to examine a single document and its content: Ubah v Canadian Natural Resources Limited , 2019 ABQB 347 at paras 24-48 [ Ubah #2 ]. There are exceptions to that rule.

For example, the Court may examine other documents in the same proceeding that are related to the suspect filing ( Ubah #2 at para 35 ), or documents and records that are evidence that the AVAP is an attempt to litigate an issue that has already been decided or closed ( Ubah #2 at para 45 ). III CPN7 Analysis [ 9 ] The Gierckes’ Counterclaim appears to exhibit a number of commonly encountered OPCA motifs. A. Strawman Theory [ 10 ] Strawman Theory is detailed in Meads v Meads at paras 417-446 , Pomerleau v Canada (Revenue Agency) , 2017 ABQB 123 at paras 67-88 , and Potvin (Re) , 2018 ABQB 652 at paras 83-92 .

Strawman Theory centers on the claim individuals have two aspects, a

“flesh and blood” component, and an immaterial legal doppelganger often called the “Strawman”. These two parts are distinguished by whether a name is in all upper case, or mixed upper- and lower-case letters. The Counterclaim’s style of cause identifies the Gierckes in this manner: Daniel and Marilena, as co-heirs/beneficiaries to GIERCKE, DANIEL - CQVT and GIERCKE, MARILENA - CQVT This means the “flesh and blood” Gierckes, “Daniel and Marilena”, claim to be the beneficiaries of two trusts, “GIERCKE, DANIEL”, and “GIERCKE, MARILENA”, a.k.a. Strawpeople.

Notably, the counterclaim also formats TD’s name as “TORONTO-DOMINION BANK”, which is consistent with Strawman Theory practices that corporations are not “flesh and blood”, and so their true names are in all capital letters. [ 11 ] Strawman Theory purports that the Strawman is the result of birth documentation, a “birth bond”, which is a concealed contract, and that the Strawman is associated with a secret bank account that contains very large sums of money.

The “flesh and blood” part of the duality may access those funds with paperwork via a process that is often called “Accept For Value”, or “A4V”: Meads v Meads at paras 531-543 . [ 12 ] The Counterclaim states: Daniel and Marilena, were assigned a cestui que vie (CQVT) trust bond at birth in which was designed to provide indemnity against liability ... PLAINTIFFS were granted dominion over the earth by their father as heirs and therefore have preceding entitlement to the trust res/land that exists notwithstanding any claim by the TORONTO-DOMINION BANK. ...

As the CQVT was assigned to me and my wife at birth, and as this provides both of us proprietary and priority claim over this trust and all proceeds, as securities entitlement holders/settlors, we require all rents, proceeds, residual, waste and remainder to be returned to us, the true beneficiaries and settlors of the credit. [ 13 ] Thus, it appears that the Gierckes are advancing Strawman and A4V concepts. Canadian Courts have consistently rejected Strawman Theory litigation for over twenty years. Relying on Strawman Theory has led to many families losing their homes: e.g.

Potvin (Re) ; Knutson (Re) , 2018 ABQB 858 ; Scotia Mortgage Corporation v Landry , 2018 ABQB 951 . The Strawman duality is so notoriously false that simply asserting Strawman Theory creates a presumption that the person who advances this concept does so in bad faith, and for an abusive and ulterior purpose: Fiander v Mills , 2015 NLCA 31 at paras 37-40 .

The Supreme Court of Canada has repeatedly rejected leave applications based on Strawman Theory concepts: Donald J Netolitzky & Richard Warman, “Enjoy the Silence: Pseudolaw at the Supreme Court of Canada” (2020) 57:3 Alta L Rev 715. [ 14 ] I therefore request the Gierckes rebut the presumption that their Counterclaim is an abuse of the Court, and a strategy adopted in bad faith to defeat TD’s foreclosure. B.

Banks Do Not Lend Money [ 15 ] The second OPCA theme apparently employed by the Counterclaim is that the Gierckes (or their Strawpeople) are allegedly the source of the money that funded their mortgage, not TD. The Counterclaim states: Debt cannot be extinguished with further debt instruments. The Library of Parliament publication 2015-51-E dated 10 August 2015 states in

Section 3 that money gets created when the 'borrower' comes forward, thus the bank is not the grantor or settlor of the mortgage instrument. As

section 3 indicates, the mortgagor, being Daniel and Marilena are in fact the creditors/grantors of the transaction. ... whereas PLAINTIFFS are the private bankers providing a valuable security instrument to the TORONTO-DOMINION BANK as the approved securities intermediary, the defendant therefore has a duty and obligation to perform and return equal value for value given.

In short, the Gierckes say the bank should pay them the value of the mortgage, not the other way around. [ 16 ] This OPCA claim that banks “create money from thin air” is based on a distorted mischaracterization of fractional reserve banking practices, and has been repeatedly rejected in Canadian court decisions: e.g.

Dempsey v Envision Credit Union , 2006 BCSC 750 ; Bank of Montreal v Rogozinsky , 2014 ABQB 771 ; Crossroads-DMD Mortgage Investment Corporation v Gauthier , 2015 ABQB 703 ; Canadian Imperial Bank of Commerce v McDougald , 2017 ABQB 124 ; Toronto-Dominion Bank v Leadbetter , 2018 ABQB 472 ; Potvin (Re) ; Knutson (Re) . [ 17 ] The Gierckes are asked to explain why these authorities are wrong. C.

The Mortgage Was Securitized [ 18 ] Paragraph 5 of the Counterclaim reads: The TORONTO-DOMINION BANK is a securities intermediary and distributor for debt instruments which are sold with proceeds reverted back to the TORONTO-DOMINION BANK according to the provincial and federal Securities Exchange Commission offering

memorandums filed by both the province of Alberta and Canada. THE TORONTO-DOMINION BANK (TD) is already enriched as asecurity intermediary assigned as a distributor and intermediary between the Bank of Canada and the securities exchanges in the UnitedStates, Luxemburg and Britain. Further payments/credit extension from PLAINTIFFS to DEFENDANTS is withdrawn.

Further to this,as the mortgage is sold through securities transfers and commissions as this document indicates, makes the TD's claim fraudulent. [19] As I understand it, this passage means the Gierckes say that their mortgage has already been sold by TD, or “securitized”, sothat TD has already obtained the value of the mortgage. The foreclosure means TD is attempting to make a double recovery on themortgage debt. Once again this OPCA concept has been repeatedly rejected by Canadian courts: e.g.

Royal Bank of Canada v Skrapec,2011 BCSC 1827, leave to appeal to BCCA refused, 2012 BCCA 10; Xceed Mortgage Corporation/Corporation hypothécaire Xceed cPépin-Bourgouin, 2011 QCCS 2116; Banque Royale du Canada c Tremblay, 2013 QCCQ 12827, aff’d 2013 QCCA 2035; The Bankof Nova Scotia v Lai-Ping Lee, 2013 ONSC 6698; Bank of Montreal v Rogozinsky; Alberta v Greter, 2016 ABQB 293; Royal Bank ofCanada v 101000039 Saskatchewan Ltd, 2017 SKQB 253; Gacias v Equifax Canada Co, 2019 ABQB 640, action struck out as anabuse of court processes, 2019 ABQB 739. [20] The Gierckes are also asked to explain why these authorities are wrong.

D. Contractual Formalities [21] Paragraph 1(

b) of the Counterclaim appears to allege that the formalities of the mortgage contract are deficient: [TD] Did not sign as a party to the contract, rather bank's agent signed as a witness of a statement being given, therefore the bank is not acontracting party to the contract as they have not officially signed the mortgage contract.

Therefore the TORONTO-DOMINION BANKhas no standing or right to foreclose and the PLAINTIFFS grant no permission for them to proceed with foreclosure. [22] An agent, by definition, has the authority to sign on behalf of the agent’s principal: Canadian Laboratory Supplies vEngelhard Industries, (SCC), [1979] 2 SCR 787, 97 DLR (3d) 1. This rule was subsequently restated by Justice LaForest in Boma Manufacturing Ltd v Canadian Imperial Bank of Commerce, (SCC), [1996] 3 SCR 727, 140 DLR(4th) 463 as: ...

The general rule of agency is that a principal is bound by the acts of an agent when that agent is acting within the scope of his or herordinary or apparent authority. ... [23] I ask the Gierckes to indicate why the law of agency does not apply to their mortgage contract. E. Legal Authorities [24] The Counterclaim identifies a number of purported authorities that establish the Counterclaim has merit. These appear to beproblematic. [25] The Counterclaim at several points cites the US Uniform Commercial Code [UCC], for example “UCC 8-503”.

The UCC ismodel US commercial legislation, and has no application in Canada: Meads v Meads at para 331. In fact, the UCC has no binding legalapplication in the US, either, since the UCC is a suggested template legislation example that individual states may (or may not) adopt, inwhole or in part. I, therefore, request that the Gierckes’ explain how the UCC provisions they have identified are relevant in Canada, andare a basis on which to advance the Counterclaim. [26] Paragraph 8 of the Counterclaim reads: “....

Every taxpayer is a cestui qui trust having sufficient interest in the preventing abuse of the trust to be recognized in the field of thiscourt's prerogative jurisdiction ... " [emphasis added] In Re Bolens (1912) 135 N.W.164.” [Emphasis in original.] [27] This authority and quotation were unknown to me, so I had it investigated. The “Every taxpayer” statement and In Re Bolensdo not appear in any reported Canadian court decision, nor those of the UK, Australia, and New Zealand.

Broadening the search further,this case citation does not appear in any items in the “Google Books” collection, however a search for the quoted passage led to a textapparently written by “William Dixon Protected by God’s Grace”, and/or the “God Is Sovereign First Amendment Study Team”, titled“Sovereign Covenant: Without Prejudice UCC 1-207”, and dated 2004.

Without going into excessive detail, this item is a US SovereignCitizen style OPCA how-to manual. [28] The investigation nevertheless went further, and while the investigation was unable to locate In Re Bolens itself, it dididentify a decision of the Supreme Court of the United States, State of Wisconsin Ex Rel Bolens v Frear,

(1914) No 447, that appears tobe a final appeal of the decision that the Gierckes have cited. Needless to say, US court decisions are not binding authorities in Canada,though decisions of the Supreme Court of the United States are potentially influential, and are therefore sometimes referenced by theSupreme Court of Canada. [29] From review of State of Wisconsin Ex Rel Bolens v Frear, it appears the underlying litigation that led to the appeal was anattempt by a taxpayer, Harry W. Bolens, to conduct a class action to challenge the legality of certain Wisconsin state taxes.

The SupremeCourt of the United States concluded that the Wisconsin litigation was conducted without valid jurisdiction. The appeal was “Dismissedfor want of jurisdiction.” [30] In short, it appears that the Gierckes are relying on: 1. a judgment from a jurisdiction other than Canada, 2. that judgment has never been cited in reported decisions in Canada or major Commonwealth jurisdictions, and

3. the judgment relied upon was identified by the Supreme Court of the United States as resulting from an illegal proceeding thatnever ought to have been permitted in the first place. [31] I therefore ask the Gierckes why this Court should rely upon the “Every taxpayer is a cestui qui trust” passage as in any senselegally relevant. [32] At paragraph 6, the Counterclaim quotes a passage apparently from a Supreme Court of Canada decision: ... pursuant to Supreme Court of Canada of Appeal case from Dominion and Provincial Courts D.K.

ELLIOTT and CANADIANCREDIT MEN'S TRUST ASSOCIATION, LIMITED, 2nd para “Appellant claimed that respondent had assumed the relation toappellant of cestui que trust and was bound to indemnify him against liabilities in connection with the trust property, including liabilityunder appellants mortgage covenant”. [33] This reference is apparently to Elliott v Canadian Credit Men’s Trust Assn Ltd, (SCC), [1935] SCR 1,[1935] 1 DLR 353. The quotation is not from the judgment, but rather its headnote, and, in fact, was the appellant’s argument, and notthe Court’s conclusion.

Instead, in Elliott v Canadian Credit Men’s Trust Assn Ltd, the Supreme Court of Canada in fact rejected thatproposition applied in this instance. [34] Subsequent references to this case do not use the “cestui que trust” language (e.g. Hollander v Mooney, 2017 BCCA 238 atpara 41; Pallot v Douglas, 2017 BCCA 254 at para 56). The “cestui que trust” and “cestui que vie trust” phrases apparently have specialsignificance in pseudolaw circles.

The actual rule that was evaluated in Elliott v Canadian Credit Men’s Trust Assn Ltd, is “... in equity... a trustee is entitled to be indemnified by the sui juris beneficial owners of the trust property for expenses properly incurred”: Pallot vDouglas at para 56. [35] Now, applying that principle, and presuming, for the purposes of this analysis, that the fictional GIERCKE Strawpeoples’A4V bank accounts are, indeed, held in trust by the Gierckes as “co-heirs” (I am presuming by that, the Gierckes say they are trustees),and that the Gierckes are also “true beneficiaries” of the imaginary “GIERCKE, DANIEL” and “GIERCKE, MARILENA” trusts, thenthat would entitle the Gierckes, as trustees, to bill the Gierckes, as beneficiaries, for “expenses properly incurred” by the Gierckes in themanagement of the “GIERCKE, DANIEL” and “GIERCKE, MARILENA” trusts. [36] I do not believe the Gierckes require this Court’s intervention if they wish to bill themselves for the management andadministration of a non-exist trust fund.

If I am incorrect on that point, I request the Gierckes identify how Elliott v Canadian CreditMen’s Trust Assn Ltd is a binding authority that is relevant to their litigation with TD. F. Unceded Indigenous Land [37] Paragraph 15 of the Counterclaim indicates TD, Canada, and apparently everyone else in Canada (except the Gierckes) do “...not legally own the land nor hold proprietary interest ...” because that is “Unceded Indigenous Land”. Earlier the Gierckes stated they “...were granted dominion over the earth by their father as heirs ...”.

I am unclear if the Gierckes are basing their apparently unique status onreligious or hereditary grounds. [38] The address for the Gierckes’ foreclosed residence is near to Airdrie, Alberta. I believe I may take judicial notice of the factthat Airdrie and Calgary are located on land that was surrendered by the area’s indigenous population via Treaty 7 in 1877. [39] I therefore request that the Gierckes explain how the Gierckes’ property is on “Unceded Indigenous Lands”. IV. CPN7 Analysis [40] The Gierckes’ Counterclaim appears to be a suitable candidate for review per CPN7.

The Court therefore seeks a responsefrom the Gierckes as to why their Counterclaim is not abusive OPCA litigation, and, more specifically: 1. How is the fact that the Gierckes are employing Strawman Theory not a reason to conclude that their Counterclaim is an abuse ofthe Court, and a strategy adopted in bad faith to defeat TD’s foreclosure? 2. Why are the Canadian court decisions that reject the OPCA theory that lenders create money “out of thin air” incorrect? 3. Why are the Canadian court decisions that reject the OPCA theory that “securitization” eliminates the obligation to pay debtsincorrect? 4.

Why does the law of agency not apply to the Giercke’s mortgage contract with TD? 5. Why is the US Uniform Commercial Code relevant and/or binding in Canada? 6. Why should this Court rely on the In Re Bolens “Every taxpayer is a cestui qui trust” quotation? 7. How is Elliott v Canadian Credit Men’s Trust Assn Ltd a binding authority that is relevant to the Giercke’s litigation with TD? 8. How is the foreclosed property on “Unceded Indigenous Lands”? [41] As a result of this analysis, I order that the Gierckes Alberta Court of Queen’s Bench Docket 1701 04865 Counterclaim isstayed.

CPN7 now advances to its second step.

1. The Gierckes have until 14 days after this decision is filed to file and serve a Written Submission of no more than a total of 10 pages, pursuant to CPN7, para 3(b). The Written Submission should be clearly addressed: “To the Attention of Associate Chief Justice Rooke”. 2. If no Written Submission is received by the Court by that deadline, the Court will proceed to render its final decision on whether the Statements of Claim should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7, para 3(c)). 3.

If the Gierckes provide and serve a Written Submission, then the Defendant TD has seven days to each make a Written Reply of up to a total of 10 pages in length (CPN7, para 3(d)). The Written Replies should be clearly addressed: “To the Attention of Associate Chief Justice Rooke”. 4. After receipt of the Gierckes’ Written Submission, and the TD’s Written Reply, if any, the Court will render its final decision on whether the Docket 1701 04865 Counterclaim should be struck out in whole or in part, pursuant to Rule 3.68 (CPN7, para 3(e)). [ 42 ] The Court will prepare and serve the Order staying the Counterclaim.

The Gierckes approval of that Order is dispensed with, pursuant to Rule 9.4(2)(c). Finally, I note to the Gierckes that the case law identified in this Decision may be viewed at no expense at the CanLII website (https://www.canlii.org). The Gierckes may benefit from accessing that resource. Dated at the City of Calgary, Alberta this 7 th day of April, 2021. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Lindsey E. Miller Field Law for the Defendant by Counterclaim Toronto-Dominion Bank