Toronto-Dominion Bank v Giercke, 2021 ABQB 320

Court of Queen’s Bench of Alberta Citation: Toronto-Dominion Bank v Giercke, 2021 ABQB 320 Date: 20210422 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 abusive nature of the Gierckes’ claims. [ 2 ] 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.

In a decision reported as Toronto Dominion Bank v Giercke , 2021 ABQB 262 [ Giercke #1 ] , I concluded 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 . [ 3 ] After review of the Gierckes’ Counterclaim, I concluded that it appeared to advance OPCA concepts, and, therefore, this AVAP should be subject to a CPN7 “show cause” document-based review. I requested the Gierckes submit an up to ten-page Written Submission to explain 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 of the 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 debts incorrect? 4. Why does the law of agency not apply to the Gierckes’ 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 Gierckes’ litigation with TD? 8. How is the foreclosed property on “Unceded Indigenous Lands”? [ Giercke #1 at para 40 .] [ 4 ] The deadline for the Gierckes’ Written Submission has passed. Nothing has been received.

I, therefore, conclude that the Gierckes have not rebutted the Giercke #1 prima facie conclusion that the Counterclaim was a hopeless, abusive, OPCA proceeding. The Gierckes’ employing Strawman Theory meant that the Counterclaim was an abusive filing made in bad faith to frustrate TD’s foreclosure proceedings. Accordingly, I order the Docket 1701 04865 March 9, 2021 Counterclaim struck out pursuant to CPN7 para 3(

c) and Alberta Rules of Court , Alta Reg 124/2010 Rule 3.68. [ 5 ] When an action, application, or claim is terminated via the CPN7 process, the usual practice of this Court is to award costs in favour of the litigant who referred the matter to the Court: e.g. Ahad v Calgary Housing Company , 2020 ABQB 450 at para 9 ; Phillips v Kenney , 2020 ABQB 452 at para 9 ; Skrypichayko v Law Society of Alberta , 2020 ABQB 604 at para 43 ; Feeney v Alberta , 2020 ABQB 633 at para 6 . I see no reason to depart from that approach in this instance.

I order the Gierckes pay TD $2,000 in costs, forthwith. [ 6 ] Counsel for TD shall prepare and serve the court Order giving effect to this decision. The Gierckes’ approval of that Order is not required, pursuant to Rule 9.4(2)(c). Dated at the City of Calgary, Alberta this 22 nd 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