Petition for Writ of Certiorari — Layman v. United States

02 508 MAR 2 8 2002

OPPIGE GF THE CLERK

NO.

IN THE

SUPREME COURT OF THE UNITED

STATES OF AMERICA

ZEKE LAYMAN

Petitioner

VS.

INTERNAL REVENUE SERVICE

OF THE UNITED STATES OF AMERICA

Respondent

and

DEPARTMENT OF TREASURY

Respondent

ON

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES

SUPREME COURT

PETITION FOR A WRIT OF CERTIORARI

ZEKE LAYMAN

P.O. BOX 3662

Chico, Calif, 95927

(530) 343-7068

In Properia Persona

- QUESTIONS PRESENTED FOR REVIEW

1. Are the parties to litigation and the Federal Courts

bound by the California State law, statutes, (i.e., the Uniform

Fraudulent Transfer Act of Cal. Civ. Code § 3439.04) when

ruling on a fraudulent transfer?

2. Is California Law the controlling law on real property

within the State of California?

3. Was defendants IRS cause of action extinguished

under California Civil Code § 3439.09 prior to the filing of their

complaint?

4. Did the District Court, and the Ninth Circuit Court

of Appeals error in failing to address all of California’s law

regarding fraudulent transfer, (i.e., the Uniform Fraudulent

Transfer Act) statutes of Cal. Civ. Code § 3439.04 when ruling

on a fraudulent transfer?

5. Was the District Court’s Judgment of “Fraudulent

Transfer” void on its face for lack of jurisdiction?

6. Because the people of the State of California have

spoken by and through their State Legislature, to proscribed

statutes of extinguishment, (i e Cal. Civ. Code § 3439.04) then

is it a violation of the people’s common law right for the

District Court, and the Ninth Circuit, to ignore portions or all

of State Law, when ruling on State real property?

PARTIES TO THIS PROCEEDING:

The caption in the style of this wnt contains the

names of all the parties subject to this proceeding, such

parties being, ZEKE LAYMAN, Petitioner vs.

INTERNAL REVENUE SERVICE OF THE

UNITED STATES OF AMERICA, Respondent, and

DEPARTMENT OF TREASURY Respondent.

iil

TABLE OF CONTENTS

PAGE

Question presented for review. ....................cccccccccccsscesesccesees i

EI OUP WE IIIINI n....ccseassessevesacssscescaccsnensssecesousns il

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Introduction Background of The Case.................-...0.c0000. 1-6

Reasons for Granting this Writ......000...0000.....0550oooccoccceccee. 6-12

ee LP oe EE ee 12-24

California’s Uniform Fraudulent

Transfer Act (UFTA) does extinguish the right of the

United States to bring suit... 13-19

THE DISTINCTION BETWEEN THE

GOVERNMENT’S COMMON LAW

AND A STATE STATUTORY RIGHT CREATED BY

CALIFORNIA CIVIL CODE § 3439.09... 19-24

The Tenth Amendment to the United States Constitution

uc scso si siccicdtvesasoesanaindevic 24

TERE SE ae a 24-26

Proof of Service, is not attached, but was mailed with

Certiorari to United States Supreme Court Clerk.

iv

TABLE OF AUTHORITIES

TABLE OF CASES

United States v. Summerlin, 310 U.S. 414, 60

S.Ct. 1019.84 L.Ed. 1283 (1940). ....000000000.... 6,8,16,18,19,20

United States v. Gleneagles Inv.Co., 565 F.Supp. 556,583

EES ORR nero Aken ree 6,8,16

United States v. Vellalos, 780 F. Supp. 705

SI COI sc acicnak dss pinadacndestbucabbudcavnnccacecel 6,8,9,12,17,18

United States v. Fernon, 640 F.2d 609.

ee 2 Ye LO. |) RS eaeeen mrarce ee 8.9

In United States v. California, 507 U.S. 746, 758

Agnicultural Research & Technology Group,

Inc., 916 F.2d 528, 534 (9th Cir. 1990)........2.000. 13

Osawa v. Onishi, 206 P.2d 498, 503 (Wash.

In re Bay Plastics, Inc. 187 B.R. 315, 322

€ a Be | EE Ea eee o Seno 13

United States v. Bacon, 82 F.3d 822, 824-825 (9" Cir.

Big Heart Pipeline Corporation v. United States of

America, 835 F.2d 766, 767 (10th Cir.

UNITED STATES CODE

itt 3 > —SOetenaee 5,10,11,12,13,23,24

United States Supreme Court Rule 10 (a) (c).............000...... 1]

United States Supreme Court Rule 13.3......00000000000.0ccccee. 4

Vv

United States Supreme Court Rule 29.5... Mere

Fe Rs POR hinticccec oe Le ... 16,17

cca Lpecine nN RTOS LE STUN Re Ser ETE NS TAT 12

PEA IR co tidbatiissinechcanance ee ae 23

CALIFORNIA STATE CODES

Cal. Civil Code § 3439.12.00... cccccccccccsoccoccoceceesccc co... 13

Cal. Civil Code § 3439.09... 4,6,7,9,10-12,14,15,16,19-24

Cal. Civil Code § 3439.04... 4,7,10,11,14,17,19-24

UNITED STATES CONSTITUTION

The Tenth Amendment to the United States Constitution

provides:

“The powers not delegated to the United

States by the Constitution, nor prohibited

by it to the States, are reserved to the

States respectively, or to the people”.

United States Constitution, 10° Amendment

l

JURISDICTION

Jurisdiction of this Honorable Court is invoked to hear

petitioner’s Petition For Writ of Certiorari, because:

1. Departure from the accepted and usual course of

judicial proceedings, as to call for an exercise of this Honorable

Court’s supervisory power.

2. This matter is one of first impression, the question

presented herein has, to date, been the subject of several

decisions by the Court of Appeals for the Ninth and Fifth

circuits, which as this court will see are all in conflict with each

other pursuant to the United States Supreme Court Rule 10 (a)-

(c) and, 13.3 to enforce the Constitutional protection.

On December 28" 2001, the Ninth Circuit Court of

Appeals made their decision denying petitioner’s appeal and

affirming the District Court’s order.

Accordingly this Petition For Writ of Certiorari is filed

within the (90) days after the decision of the Ninth Circuit

Court of Appeals.

INTRODUCTION

BACKGROUND OF THE CASE

On Nov. 23% 1987, Irwin and Darline Ruth Koff

transferred their interest in the subject real property to this

instant petitioner Zeke Layman, for consideration of $40.00 in

silver and other valuable considerations. The deed to the

subject real property was transferred and the transaction

2

witnessed by a notary. There were no liens attached or

recorded against the real property at the time of the transfer.

On Feb. 27" 1990, and on April 2™ 1990, the IRS

recorded liens for delinquent taxes resulting from the Koff's

failure to file income tax returns for the tax years 1982-1985.

Petitioner Zeke Layman filed a complaint at Inyo

County Superior Court, on January 11" 1999, to quiet the title

of the real property, regarding the federal tax liens recorded on

his real property.

Defendants the Internal Revenue Service, an agency of

the United States, filed a removal action to the United States

District Court Eastern District Fresno Division on March 4"

1999. -

Petitioner Zeke Layman, filed his motion for summary

judgment on Aug. 25" 1999.

The Internal Revenue Service filed it’s opposition and

a purported, self styled, cross-motion for summary judgment on

Oct. 5" 1999. The alleged cross-motion did not give notice as

required by the Local Rules or the Federal Civ. Rules of

Procedure § 8, nor was petitioner given notice of a hearing date

for the alleged cross- motion, nor was plaintiff given an

opportunity to oppose defendant’s self styled cross-motion.

Defendants in their opposition to petitioner’s motion

for summary judgment stated that, “Because there is sufficient

evidence to create a triable issue of fact as to whether the

subject transfer of property was fraudulent and void, plaintiff's

motion for summary judgment must be denied.”

Petitioner Zeke Layman, filed his response to the court’s |

inquiry as to the statute of limitation of the “Quiet Title Action”

3

and exhaustion of administrative remedies on Nov. 12" 1999.

Petitioner’s Layman’s attorney filed a response to the

court’s request for further briefing on the statute of limitation

for quite title on Nov. 15* 1999. The defendants Internal

Revenue Service, filed a reply on Nov. 22™ 1999.

The summary judgment came on regularly for hearing

on Thursday, Dec. 4" 1999, at courtroom 4 before the

Honorable Sandra M. Snyder, Magistrate Judge of the United

States District Court, who issued an order, “Granting The

United States’ Cross-Motion for Summary Judgment, and

Denying Layman’s Motion For Summary Judgment” entered

into the record on Dec. 21" 1999. Petitioner Zeke Layman’s

attorney resigned from the case and refused to proceed on

appeal or pursue any other form of remedy.

On Dec 14" 2000, petitioner filed a Motion to Set Aside

Or Reconsideration 60 (b) upon the grounds:

1. That the District Court’s order of December 23"

1999, Granting The United States’ Cross-Motion for Summary

Judgment, and Denying Layman’s Motion For Summary

Judgment is a legal nullity, void judgment on its face. and

called into question by the very admission that the Honorable

Sandra M. Snyder, United States Magistrate Judge ruled on

factual issues in her order Granting The United States’ Cross-

Motion for Summary Judgment, and Denying Layman’s Motion

For Summary Judgment. The court in ruling on summary

judgment was never given the jurisdiction to rule on the material

facts of this case.

The district court’s order of “Granting The United

States’ Cross-Motion for Summary Judgment, and Denying

encpiisaateiniimniiciiintianitiiineme iain i

LA ALES NL aT AIRE TIE RIE SHS MAREINNON IS” RAEI RMORNIRRR AR MELE CR TIC

4

Layman’s Motion For Summary Judgment” clearly determines

material facts, as stated in her judgment (page 6 line 25, 26) and

these questions of material fact are for the fact finder, jury to

decide not the court. Because the court ruled on the facts, the

court’s Judgment is a legal nullity, and the judgment void on

it’s face.

2. The District Court’s Judgment is a legal nullity,

and a void judgment, on the grounds that the statute of

extinguishment Cal. Civ. Code 3439.04-3439.09, on fraudulent

conveyance extinguished defendants IRS claim as matter of

law, and the District Court lacked jurisdiction to issue an order

granting the IRS motion for summary judgment.

3. Denial of a Jury Trial regarding Fraudulent

Conveyance, and nominee liens. The question of whether or not

a fraudulent transfer occurred is a matter of fact that must

absolutely be decided by a jury trial. This would apply to issues

of fraudulent return, fraudulent conveyance, and the fact issue

of taxability, for the nominee. Petitioner Zeke Layman’s right to

a jury trial to decide the facts of this instant case have been

taken without due-process of law. The United States

Constitution clearly provides that defendant has a right to jury

trial and upon these grounds the Honorable District Court’s

Judgment is a legal nullity, and a void judgment

4. There is excusable neglect evident by the record, in

that petitioner Zeke Layman’s attorney failed to know the

proper procedure for summary judgment, or appeal.

Petitioner’s attorney failed to file further declaration or

affidavits to support Layman’s opposition to summary judgment

and because defendant’s complaint failed to give notice as

a a

5

proscribed by the Local Rule and the Fed. Civ. Rules of

Procedure § 8, the court lacked jurisdiction to grant defendants

relief.

Defendants filed their opposition to petitioner’s Motion

to Set Aside or Reconsider on Dec, 28" 2000. -*

Layman filed an objection to magistrate Sandra M.

Snyder, hearing petitioner’s Motion to Set Aside or Reconsider.

On Jan. 16" 2001, petitioner filed his reply to defendants

opposition, and an affidavit.

Over petitioner’s objection, on January 22™ 2000, the

Honorable Magistrate Judge Sandra M. Snyder, made an

“Order Denying Motion to Set Aside Order Or

Reconsideration”. That Court’s ruling stated:

“The Court has reviewed its order to

the motions for summary judgement and stands by its

reasoning and legal analysis. Layman has not set forth

any new facts which would justify a motion under Rule

60 (b). Layman is not entitled to a trial where the

respective motions for summary judgement revealed

that there were no disputed material facts. Further, as

properly set forth by defendant, even if there were

disputed material facts, Layman would only have been

entitled to a bench trial, not a jury trial, pursuant to 28

U.S.C. § 2409a(f). For these reasons, Layman’s

motion is hereby DENIED.”

On February 26" 2001, petitioner filed a “Notice of

Appeal” from the court’s denial of petitioner’s 60 (b) motion.

Also on February 26" 2001, petitioner filed “Notice to the

Court Clerk to Prepare the Clerk’s Transcript”

6

Petitioner submitted his Opening Brief, and Reply Brief

in a timely fashion, the defendant’s submitted their brief in

Opposition in a timely fashion. On December 28" 2001, the

Ninth Circuit Court of Appeals made their decision in this case

stating that, “On Consideration Whereof, it is now here ordered

and adjudged by this Court, that the judgment of the said

District Court in this cause be, and hereby is AFFIRMED”

This petition follows.

REASONS FOR GRANTING THIS WRIT

First, this matter is one of first impression, the

question presented has to date, been the subject of several

decisions and much controversy by the District Courts and

Court of Appeals for the Ninth and Fifth circuits, as well as the

Florida Supreme Court, in United States v. Summerlin, 310

US. 414, 60.

United States _v.Gleneagles Inv. Co., 565 F.Supp

556,583 (M.D.Pa. 1983). (state statute of limitations held not to

apply to action by United States based on Uniform Fraudulent

Conveyance Act)”. Uniform Fraudulent Transfer Act §9, 7A

U.L.A. 665-66 (1984) (Commentary).

As this Honorable Court will soon see the cases of the

Appeal Court as well as the District Court decisions are in

conflict with each other, leaving petitioner’s remedy at the fate

of his geographic location, and at the whim of the different

Judges,(i e if petitioner’s argument would have been heard in

' |

|

ieiiieiienieetaeaiieniaeaseiiiiieael

7

Hawaii, as in Vellalos, petitioner would have been heard

according to State Law).

However because petitioner was heard in the District

Court, and Ninth Circuit, for the State of California, both

Court’s have ignored California State Law, and failed to address

the argument presented by petitioner (i e Cal. State Statute of

Extinguishment Cal. Civ. Code 3439.09), and now the Court’s

are allowing the IRS to take property from petitioner for the tax

liability of another. The facts in this case here closely parailel

the facts of Vellalos .

Petitioner calls on this Honorable Courts for an exercise

of supervisory power to settle the issue of California State Law

of Statute of Extinguishment Cal. Civ. Code 3439.09.

Secondly, to decide under what circumstances State

Law is preempted by federal law regarding real property and

rights to that property within the State of California.

Third, to decide if the people of the State of

California’s common law rights have been abridged or violated

by the Court’s failure hear the cases as proscribed by their State

legislature. | Because the people have spoken by and through

their State Legislature to proscribed statutes of extinguishment

(i e Cal. Civ. Code § 3439.04-§ 3439.09) any departure from

that legislative directive is a violation of the people’s common

law right. The District Court, and the Court of Appeals,

practice of ignoring portions, or all of State Law, when ruling

on State Real Property in federal courts is a violation of law,

Constitution 10" Amendment and abuse of discretion. This

8

refusal of the Federal Courts to hear and listen to the people’s

voice as spoken through their State legislature also violates the

peoples common law nghts.

Fourth, if the Federal Courts depart from California

State Law when deciding property nghts to California real

property, they are in essence allowed to violate the separation

of power doctrine. Because the people of the State of

California have spoken by and through their legislature, the

Judicial Branch of government is bound to enforce the law as

proscribed by State Legislature.

Lastly, the published opinion of United States _v.

Vellalos 780 F. Supp. 705 (D. Haw. 1992) clearly shows that

the District Court and Ninth Circuit were bound to apply

_ California law principles; just as was stated in Vellalos. In this

instant case the government sought to set aside a transfer as a

“Fraudulent Transfer” and State law should have been the

prevailing rule of decision.

Subsequently, United States v. Vellalos stands in

direct contradiction to United States v.Gleneagles Inv. Co.,

565 F.Supp 556,583 (M.D.Pa.1983) and the Appellate Court

decision in the Fifth Circuit, in Cf. United States v. Fernon

640 F.2d 609, 612 & n._ 7 (Sth Cir. 1981)” (holding that

fraudulent conveyance action brought by the United States

under I.R.C. § 7403, are subject only to the statute of

limitations found in I.R.C. 6502 (a) (1), not a state statute of

limitations).

Further United States v. Summerlin, 310 U.S. 414, 60

9

only adds to this confusion, and dissension between the different

Circuit Court of Appeals and District Courts, in their

" application of United States v. Fernon 640 F.2d 609. 612 & n.

7 (Sth Cir. 1981)” and United States v. Vellalos, 780 F. Supp.

705 (D. Haw. 1992).

Although the framers of the UFTA (California

Legislative Committee) were specific in providing a literal

extinguishment of the cause of action. The intent of the UFTA

is to completely extinguish the statutory cause of action

following the expiration of the delineated time period. Section

3439.09 is not a Statute of limitations but rather an

extinguishment of a substantive cause of action.

Assuming, arguendo, section 3439.09 is construed as a

statute of limitations provision, the U.S. Supreme Court has not

held Summerlin controlling in all cases. In United States v.

California, 507 U.S. 746, 758 (1993), THE COURT STATED

“WHETHER IN GENERAL A STATE-LAW ACTION

BROUGHT BY THE UNITED States is subjected to a federal

or state statute of limitations is a difficult question. We need not

resolve it today”. California 507 U.S. at 758. If Summerlin

controlled all state statutes of limitations, the Court could have

said so. Instead they left the question open.

The Court did not hold that whenever the United States

bring suit to maintain a claim under state law, only federal

statute of limitations apply.

Although the questions presented are questions of first

impression, review by this Court is necessary to stop

es

10

discriminative practices and application of State Laws regarding

real property within the State of California. This Court

guidance is also necessary to promote uniform application of

State law within the boundaries of the State.

The Appellate Courts as well as the District Court

decisions are confusing and in conflict with each other, leaving

petitioner’s remedy at the fate of his geographic location, or at

the whim of a Judge that is familiar or unfamiliar with the cases

and application of California law (i. e. Civ. Code 3439.09),

regarding “Fraudulent Transfer”.

As argued in petitioner’s 60 (b) motion before the

Honorable Sandra M. Snyder Magistrate Judge of the District

Court, and the Ninth Circuit Court of Appeals the Judgment of

the District Court is a legal nullity, and a void judgment, on

the grounds of,

1. Statute of extinguishment Cal. Civ. Code 3439.09

extinguished any claim of fraudulent conveyance, or fraudulent

transfer brought by defendants IRS, as matter of law, and the

District Court lacked jurisdiction to issue an order granting the

IRS motion for summary judgment against petitioner.

2. When the government sought and received a benefit

under California statutes pursuant to Cal. Civ. Code § 3439.04-

3439.09, defendant’s IRS, cause of action was extinguished as

matter of law 5 to 6 years before any complaint was ever filed,

leaving the judgment of the District Court a legal nullity, and

a void judgment on its face.

3. Petitioner filed a timely Fed. Rule Civ. Pro. § 60 (b)

1]

motion in the lower Courts for relief which states in relevant

part, on motion and upon such terms as are just, the court may

relieve a party or his legal representative from a final judgment,

order, or proceedings for the following reasons:

(1) Mistake; Inadvertence; Surprise, or Excusable N eglect;

(4) the judgment is void:

(6) any other reason justifying relief from the operation of

the judgment.

The District Court’s denial and Ninth Circuit Court of

Appeals, affirmation of the district court’s denial of petitioner’s

60 (b) motion, without addressing whether or not the District

Court’s Judgment is a legal nullity, and a void judgment on

its face, is in effect the Ninth Circuit Court of Appeal’s

sanction of departure from the accepted and usual course of

judicial proceedings. This calls for an exercise of this

Honorable Court’s supervisory power pursuant United States

Supreme Court Rule 10 (a) to enforce Constitutional

protection.

This matter has never previously been head before

this court, and the Supreme Court of this United States has

remained silent concerning the Uniform Fraudulent Transfer

Act (UFTA), more particular the application of California law,

and Cal. Civil Code § 3439.04 -3439.09. to fraudulent transfer

suits in federal courts, making these questions, one of first

impression.

A lack of such direction by this Supreme Court, promotes

discriminative application of State law to litigants. (i e. had this

12

instant case been heard in Hawaii, the Court would have

dismissed the governments suit under the teachings of Vellalos)

Unless and until this Supreme Court of this United

States reviews by way of Certiorari petitioner’s questions,

setting forth some direction, the discriminative application of

the California State law (UFTA) will continue.

This Court is requested to setforth some direction

regarding (UFTA) matters for all courts to follow to assure the

people of this United States, at all times during court

proceedings on (UFTA) matters, will be treated equally and

uniformly.

If petitioner is denied this nght to apply California Law,

regarding his real property, and be heard fairly to resolve these

issues, what hope or confidence do the people have in their

Courts to protect their property nghts or in “JUSTICE AND

LIBERTY FOR ALL”?

LEGAL ARGUMENT

1. As argued in petitioner’s 60 (b) motion before the

Honorable Sandra M. Snyder Magistrate Judge of the District

Court, and the Ninth Circuit Court of Appeals, petitioner

contends that the Judgment of the District Court is a legal

nullity, and a void judgment on its face, on the grounds that

the statute of extinguishment Cal. Civ. Code 3439.09

extinguished any claim of defendants IRS of fraudulent

13

conveyance as matter of law.

All of petitioner’s efforts to have this decision reviewed

in consideration of a void judgment on its face under Fed.

Civ. Pro. 60 (b) have been thwarted at every turn. Both the

District Court and the Ninth Circuit Court of Appeal’s decision

fail to address the application of. a void judgment, mistake,

inadvertence, excusable neglect, or the California Uniform

Fraudulent Transfer Act. The Honorable Magistrate Judge

refused to hear petitioner’s 60 (b) motion, or to address the

issue as a legal nullity, and a void judgment on its face.

California’s Uniform Fraudulent

Transfer Act (UFTA) does extinguish the right of the

United States to bring suit

A. The state of California adopted the Uniform

Fraudulent Transfer Act (“UFTA”) in 1986, effective for

transfers made or obligations incurred on or after January

1,1987. See Cal. Civ. Code § 3439.12 (West 1995). The

California Uniform Fraudulent Conveyance Act (“UFCA”) and

the UFTA are statutory causes of action having as their

historical background rights which existed at common law. See

In re Agricultural Research & Technology Group, Inc., 916

F.2d 528, 534 (9th Cir. 1990) (Hawaii UFTA is declaratory of

common law); Osawa v. Orishi, 206 P.2d 498, 503 (Wash.

1949) (UFTA is declaratory of the common law); In re Bay

Plastics, Inc. 187 B.R. 315, 322 (Bankr. S.D. Cal. 1995) (to the

14

same effect; discussing California UFCA and California UFTA).

Unlike its predecessor California UFCA, the California

UFTA contains an “extinguishment” provision. The framers of

the UFTA (California Legislative Committee) were specific in

providing a literal extinguishment of a cause of action.

State framers of the Uniform Transfer Act have been

specific in providing for a literal extinguishment of the cause of

action upon expiration of the prescribed time period.

No overriding national concern has been suggested to

prevent states from passing fraudulent conveyance laws which

have extinguishment provisions as part of the state statutory

scheme. Section 3439.09 of the California Uniform Fraudulent

Transfer Act extinguishes the government’s right to maintain a

cause of action for fraudulent conveyance under state law.

The intent of the UFTA is to completely extinguish the

statutory cause of action following the expiration of the

delineated time period. Section 3439.09 is not a Statute of

limitations but rather an extinguishment of a substantive cause

of action.

Here, the government seeks to set aside a transfer or

conveyances of real property pursuant to Cal. Civil Code

sections 3439.04 -3439.09.

When a cause of action with respect to a fraudulent

transfer is brought under subdivision (a) of section 3439.09, the

claim is extinguished “within four years after the transfer was

made or the obligation was incurred or, if later, within one year

after the transfer or obligation was or could reasonably have

15

been discovered by the claimant.” Cal. Civ. Code § 3439.09(a).

When a cause of action is brought under subdivision (b)

of section 3439.09 the claim is extinguished “within four years

after the transfer was made or the obligation was incurred.” Cal.

Civ. Code section 3439.09 (b).

Section 3439.09 of the UFTA abolishes the right as well

as the remedy. Unlike the Florida statute of limitations

considered in Summerlin and its progeny, the UFTA contains an

“extinguishment” provision which does not affect the underlying

debt sought to be enforced, rather it bars the ri ight to set aside

the wrongful transfer of property. A statute of limitations bars

a remedy after the expiration of a certain period of time.

contrary to the UFTA’s extinguishment provision which bars

the entire cause of action.

The UFTA’s extinguishment provision is an element of

the cause of action to set aside a fraudulent conveyance and

requires the action be commenced within four years, or the

action does not exist under state law.

The UFTA’s extinguishment provision, differs from a

traditional statute of limitations because it places a substantive

condition on the accrual of a fraudulent transfer action. United

States v. Bacon, 82 F.3d 822, 824-825 (9" Cir. 1996).

Because the UFTA seeks to effect the government’s

substantive right to bring a fraudulent transfer action it is

applicable to all parties who seek relief under the statute,

including the United States government. Bacon, 82 F.3d at 824:

see Vellalos, 780 F.Supp. at 708.

16

The California Legislative Committee explicitly stated

that this extinguishment provision of section 3439.09 was

created to bar actions asserted by the United States under the

Summerlin principle, this section is new. Its purpose is to make

clear that lapse of the statutory periods prescribed by the

section BARS THE RIGHT AND NOT MERELY THE

REMEDY. See Restatement of Conflict of Laws 2d Section

143 comment and 1971). Th tion rejects the rule

applied in United States v. Gleneagles Inv. Co., 565 F Supp.

initial

556, 583 (M_D. Pa. 1983) (state statute of limitations held not

to apply to actions by United States based on Uniform

Fraudulent Conveyance Act). Cal. Civ. Code section 3439.09

(Legislative Committee Comment 1) (emphasis added)

In providing that the right was “extinguished”, the

Legislature was attempting to rely upon decisions that avoided

the general rule that the United States, as sovereign, is not

bound by state-imposed limitation periods.

As per the holding in Summerlin, 310 U.S. at 416, that

the United States is not bound by state statutes of limitations

period, the State Legislature integrated into a statute a new

cause of action the UFTA’s extinguishment provision which in

this case defendants IRS chose to exercise. If defendants IRS

complaint sought relief under 26 U.S.C. § 7403 this section also

depends on state law to define the nature and extent of the

property rights involved.

Indeed, in the specific context of this case, it is

unquestioned that the State has adopted UFTA and the

17

“extinguishment” provision for the very purpose of attempting

to circumvent the rule that the United States is not subject to

State statutes of limitations but, defendants IRS cannot escape

pleading under State Law, on “Fraudulent Transfer” matters

because the U. S. Congress, has never adopted any “Fraudulent

Transfer” or Fraudulent Conveyance statutes. Here the people

of California have spoken by and through their State Legislature

to proscribe statutes such as the UFTA..

The real question is how and when does State Law

apply to issues of “Fraudulent Transfer”, and is the Judgment

of the District Court a legal nullity, and a void judgment on

its face, on the grounds that the statute of extinguishment Cal.

Civ. Code 3439.04 extinguished any cause of action by

defendants IRS of fraudulent conveyance, or fraudulent transfer,

asamatteroflaw. The District Courts decision of

fraudulent transfer on Nov. 23 1987 was clearly more than 10

¥2 years after the property was transferred to petitioner.

As In Vellalos, the United States brought an action

under Section 7403 to reduce a judgement for outstanding

federal tax assessments and to foreclose federal tax liens on a

parcel of real property. The taxpayers had made a conveyance

to their son, which the Government contended was fraudulent

under the UFTA.

Vellalos held, that fraudulent conveyance actions are

exclusively creatures of State statute. In doing so the district

court reasoned that Hawaii had the power to limit the

availability of the cause of action to any litigant--including the

18

United States--by virtue of its having created the cause of action

in the first place (780 F.Supp at 708).

This instant case parallels with Vellalos, in that the

government in both cases was seeking to take advantage of a

right that is entirely within the domain of the State law, set forth

by State Legislature. This right was created by a State statute

and specifically limited by the text of that statute. This is not a

straight forward question of debt collection under the common

law as was addressed by the Supreme Court in Summerlin.

The parallel of Vellalos, and this instant case, properly

depicts the discrimination suffered by petitioner due to his

geographic location. Because the district court ruled in

Vellalos, that Hawaii had the power to limit the availability of

the cause of action to any litigant--including the United States--

by virtue of its having created the cause of action in the first

place, (780 F. Supp at 708) the causes of action against

Vellalos, was extinguished under State Law. Herein lies the

discrimination due to petitioner’s geographic location.

Petitioner’s right to an effective remedy under California

State Law, was at the mercy of his geographic location. In

California, Federal Courts refuse to rule and apply that

California has the power to limit the availability of a cause of

action to any litigant--including the United States--by virtue of

its having created the cause of action in the first place.(i. e.

UFTA) |

Defendants IRS attempted to reach the California real

property of Zeke Layman under the benefit of California law

19

Cal. Civ. Code § 3439.04-3439.09. to satisfy the alleged debt

owed by petitioner’s parent just as in Vellalos.

It is undisputed that defendant’s IRS cause of action of

“Fraudulent Transfer” brought by the United States falls outside

the extinguishment time period established by the provisions of

California Civil Code § 3439.04-3439.09

At issue, is (1) whether this court should apply the

California Civil Code § 3439.04- 3439.09. (UFTA) fraudulent

transfer statute of extinguishment to extinguish defendant’s

IRS, claims, (2) if the IRS cause of action was extinguished

prior to its filing in the court, (3) and lastly is the District

Court’s order void on its face.

THE DISTINCTION BETWEEN THE

GOVERNMENT’S COMMON LAW

AND A STATE STATUTORY RIGHT CREATED BY

CALIFORNIA CIVIL CODE § 3439.09

B. There is an important distinction between cases

involving the government’s common law rights to collect on a

debt and cases involving a carefully delineated State Statutory

right created by California Civil Code. Section 343 9.09, which

is the codification of the Uniform Fraudulent Transfer Act

(“UFTA”). |

The UFTA California statute of extinguishment is clearly

in contradistinction the statute of limitations present in the

Florida statute, that was considered in Summerlin and its

progeny.

20

In this regard, the term “statute of limitation” must not

be confused with the “extinguishment” of a cause of action or

claim. A state statute of limitations does not bind the federal

government in enforcing its rights. United States v. Summerlin

310 US. 414, 60 S.Ct 1019, 84 L.Ed. 1283 (1940)

The UFTA contains an “extinguishment” provision

where a statute of limitations bars the remedy after the

expiration of a certain period of time. Here the UFTA’s

extinguishment provision bars the entire cause of action after

four years.

It is clear that the intent of the UFTA is to completely

extinguish a State statutory cause of action of fraudulent

conveyance and fraudulent transfer following the expiration of

the delineated time period in California Civil Code § 3439.04-

3439.09. The next question, is whether the State of

California Legislature, has the authority to limit the availability

of a cause of action to any litigant--including the United States

by create a new statutory cause of action California Civil Code

§ 3439.04-3439.09.

The Tenth Amendment to the United States

Constitution provides:

“The powers not delegated to the United

States by the Constitution, nor prohibited

by it to the States, are reserved to the

States respectively, or to the people”.

Under the U.S. Const. Amend. X. the law of real property

has traditionally been within the province of the States.

21

In the lower courts the government has failed to cite any

federal statutes that restrict the States right to legislate in the

area of fraudulent transfers. No invalidity of the California

Fraudulent Transfer Act, can be found.

The United States (IRS) is seeking to take advantage of

a State statutory right to set aside the fraudulent transfer of

petitioner Zeke Layman’s real property, which is entirely within

the domain of the California State Law California Civil Code §

3439. This right was created by a State statute and specifically

limits the availability of a cause of action to any litigant--

including the United States under the text of that statute.

The government (IRS) seeks to take advantage of rights

created by the people of the State of California by and through

their Legislature, while at the same time seeking to avoid the

extinguishment clause, imposed by the very same statutes

defendant’s seek relief under.

Federal Courts should not have the right to make a

ruling, or give a remedy to the Government (IRS) by applying

a portion of California State Law, and rejecting or disregarding

the remainder of the State created cause of action.(UFTA)

To endorse the government’s position would be in effect

a stipping away of State Legislative authority, and thereby

nullify the voter’s direction. Such a violation, of the people’s

common law right, to proscribe and prescribe the laws, by and

through their Legislature, would be a taking of property

without due-process of law.

State law determines what constitutes a property interest

22

or right to property to which a federal tax lien may attach. Big

Heart Pipeline Corporation v. United States of America,

835 F.2d 766, 767 (10th Cir. 1979)

The subject real property in this action is a residence

located at 550 Sunset Ln. Lone Pine, California, which was

conveyed to petitioner Zeke Layman, Under California State

law on Nov. 23™ 1987. Any attack by defendant’s IRS, falls

under California State Law California Civil Code § 3439.04-

3439.09 statute of extinguishment on fraudulent conveyance.

Because the defendant IRS brought their cause of action

against petitioner and his real property, more than 10 years after

the transfer, any cause of action regarding this transfer was

extinguished as matter of California law as set forth by the

Legislature.

Where California State Legislature intended to

extinguish a cause of action entirely--not merely bar it with a

statute of limitations--the State’s Law applies to the Federal

government and will “extinguish” their claims.

This begs the guestion, was the District Court’s

Judgment of “Fraudulent Transfer” void on its face, because

defendants IRS, cause of action was extinguished under

California Civil Code § 3439.09 long before their complaint

was filed in the Federal Court?

To the extent the government (IRS) desires a universally

applicable statute of limitations period with which to combat

fraudulent transfers, Congress may enact a federal fraudulent

transfer law to govern transactions that may have a federal

23

interest.

Although there is no such federal fraudulent transfer

law, 26 U.S.C. section 6901(c) sets forth a summary procedure

by which the IRS can collect taxes from transferees who are

found to be fraudulent transferees under State Law.

This section, however, has even a shorter limitations

period than the California law. See 26 USC. section

6901(c)(initial transferee remains liable for a period of one year

after the expiration of the period of limitation for assessment

against the transferor). It is only because the government is

barred by this federal statute of limitations that it attempts to

bring an action directly under the state fraudulent conveyance

Statute, instead of under the summary procedures set forth in 26

U.S.C. section 6901(c).

Defendant’s IRS, failure to bring an action within the

time required by the Uniform Fraudulent Transfer Act

extinguishes defendant’s claim or cause of action to set aside

the 1987 transfer of the subject real property to petitioner.

Clause (4) of Rule 60(b) allows a party or his legal

representative relief from a void judgment. Such a judgment is

legally ineffective, or as sometimes stated, a nullity. Williams v.

North Carolina 325 U.S. 226 (1945): Kalb v. Feurestein 308

U.S. 433 (1940): Jordon v. Gilligan 500 F.2d 701 (6th Cir

1974), cert denied 421 U.S. 991 (1975).

The District Court’s judgment is brought into the scope

of a void judgment on its face, under the UFTA § 3439.04-

3439.09 The UFTA extinguishes any suit brought more than

24

4 years after the alleged fraudulent transfer. Defendants IRS,

cross-motion for summary judgment was filed on OCT. 5"

1999, more than 11+ years after the property was transferred

to petitioner.

Defendants IRS cause of action was extinguished under

California Civil Code § 3439.09.

This begs the question, was the District Court’s

Judgment of “Fraudulent Transfer” void on its face for lack of

jurisdiction and subject to attack on a Fed. Rule of Civ. Pro.

§ 60 (b) motion?

CONCLUSION

For generations the Supreme Court of this United States

has been silent concerning the Uniform Fraudulent Transfer Act

(UFTA), more particular the California Civil Code of Procedure

§ 3439.09, and the applicability of the California law, (UFTA)

in Federal Courts.

A lack of such direction by our Supreme Court, promotes

discriminative application of the California State law. This

Supreme Court needs to set forth some direction for the Circuit ©

Courts to follow on these matters.

Honorable Justices of the Mighty United States Supreme

Court, we can not let this ruling stand or condone a ruling in

direct violation of the United States Constitution, 10"

Amendment.

If this Honorable Supreme Court refuses to Grant

review by Certiorari, it will in effect endorse the government’s

|

25

position of stripping away of State Legislative authority, and

thereby nullify the voter’s direction, and the people’s common

law right, to proscribe and prescribe the laws, by and through

their Legislature, a threat which presently exists against the

peace and dignity of the people of this nation.

The issue herein requiring settlement by this Honorable

Court is not only for this petitioner but also for the general

interest of the public within the State of California. The United

States Supreme Court, the final authority in this nation on

matters of law, and the guardian of the liberties of the American

People, needs to exercise its power to set forth a standard of

how California Law effects the people’s real property rights

within the State of California.

The petitioner respectfully urges this Honorable Court

to exercise its independent judgment, and answer the questions

presented herein of first impression to protect uniformity of law

and petitioner’s common law right to proscribe and prescribe

the laws, by and through his State Legislature.

For the reasons setforth herein, and upon all papers,

files and other pleadings in this action, and upon such further

oral and documentary evidence and argument as may be

presented at or before any hearing on this matter, petitioner

Zeke Layman, request this Honorable Supreme Court to

review, the Questions presented by this Petition For Certiorari.

19

,? 74> we et of

Date filey Al, Fi tom a

26

Kappan Submitted

Pm VA (g/Wii

Petitioner ZekAL ayman in Pro Per

App. |

OPINION BELOW

NOT FOR PUBLICATION

FILED Dec. 28 2001

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ZEKE LAYMAN,

Plaintiff- Appellant DEC. 28 2001

CATHY A. CATTERSON, CLERK

U.S. COURT OF APPEALS

V.

No. 01-1539

UNITED STATES OF DC# CV-

AMERICA

Defendants-Appellees. | 99-95239-SMS

DEPARTMENT OF

TREASURY; INTERNAL

REVENUE SERVICE, MEMORANDUM?

Defendants

Appeal from the United States District Court

for the Eastern District of California

Sandra M. Snyder, Magistrate Judge, Presiding**

Submitted December 17, 2001***

* This disposition is not appropriate for publication

App. 2

and may not be cited to or by the courts of this

circuit except as may be provided by 9" Cir. R. 36-3

** The parties consented in writing to the

jurisdiction of a magistrate judge pursuant to 28

U.S.C. § 636(c) and Fed. R. Civ. P. 73.

*** The panel unanimously finds this case suitable

for decision without oral argument, and denies

Layman’s request for oral argument. See Fed. R.

App. P. 34(a)(2).

Before: SCHROEDER, Chief Judge, TROTT and

PAE, Circuit Judges.

Zeke Layman appeals pro se the district

court’s order denying his Fed. R. Civ. P. 60(b)

motion for relief from the district court’s summary

judgement in favor of defendants. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We

review for-abuse of discretion an order denying a

Fed. R. Civ. P. 60(b) motion, Al/merica Fin. Life

Ins. & Annuity Co. v. Llewellyn, 139 F.3d 664, 665

(9" Cir. 1998), and we affirm.

We lack jurisdiction to address Layman’s

contentions regarding the merits of the district

court’s original entry of judgment because Layman

App. 3

both failed to file a notice of appeal within 30 days

of the entry of final judgement and failed to file a

timely post-judgement tolling motion. See Fed. R.

App. P. 4.

Contrary to Layman’s contention, the

magistrate judge did not act without jurisdiction. See

Dixon v. Ylst, 990 F.2d 478, 480 (9" Cir. 1993). In

addition, Layman received a reasonable and

meaningful opportunity to challenge defendant’ s

motion for summary judgement. See Fed. R. Civ. P.

56(c); cf. Baria v. Reno,

232394 F.3d 1335, 1341 (9" Cir. 1996).

Because Layman failed to demonstrate any

basis for relief from judgement, the district court did

not abuse its discretion by denying his Rule 60(b)

motion. See Sch. Dist. No. lJ, Multnomah County

v. AcandsS, Inc., 5 F.3d 1255, 1262-63 (9" Cir.

1993).

Layman’s remaining contentions lack merit.

AFFIRMED.