Oral arguments set in Knoxville in counterattack on N.Y. loan shark

Flexibility Capital is at 1501 Broadway, Suite 1511 in New York, a loan shark demanding repayment of a 208.05 percent cash advance loan from my radio business in Chattanooga. (Photo Google Earth)

CHATTANOOGA, Tenn., Oct. 23, 2023 — Abusive treatment in the circuit court of Judge Kyle Hedrick is giving me occasion to attack predatory lending in Tennessee and petition for a ruling on whether a criminal contract is enforceable for interest rates passing 200 percent.

By David Tulis / NoogaRadio Network.

The case is Flexibility Capital Inc. v. Sabatino Cupelli et al. I am the “et al” and am handling the defense targeting fraudulent business practices routine in Tennessee, and the question of whether a court can accept a case seeking to impose a fraudulent contract. 
The cases indicate that no party seeking to use the courts to impose a fraud can create subject matter jurisdiction.
Subject matter jurisdiction is a gateway issue, and here I argue by affidavit has not occurred in the case.

I am scheduled to target Flexibility Capital in my appeal against its court victory against me and my business partner in radio, Sabatino Cupelli. (Photo David Tulis)

Affidavit challenging court’s handling of case

Comes now, David Jonathan Tulis, of sound mind and body, declaring the following facts true and points of law correct to the best of his firsthand knowledge and study, as follows:

Four judges, including John McClarty of Chattanooga, will hear the arguments of Mary Cheadle, attorney for Flexibility Capital, and David Tulis, appellant in a case demanding F$30,000 in an illegal loan that defendants were unable to repay because of Gov. Bill Lee’s state of emergency. (Photo David Tulis)

1. Accused object to the court’s signing a proposed final order giving judgment in favor of Flexibility Capital, the nominal plaintiff, and Cheadle Law, prosecuting the matter as debt collector, as the court has no subject matter jurisdiction to sign a judgment. It may under law do a single thing: Dismiss the case ministerially, with prejudice, as follows.

2. The court lacks subject matter jurisdiction because plaintiffs are pursuing a case rife with intrinsic fraud, a loan agreement illegal in Tennessee and in New York, where it is headquartered, given that the unsigned contract at issue is not an advance purchase of future receivables, but a loan. And that loan has an annual percentage rate passing 208 percent.

3. The court is insensible to the law’s claims upon it regarding subject matter jurisdiction. Accuseds’ objection incorporates their (1) Motion to set aside order for intrinsic fraud, & demand or judicial notice, and (2) Answer to plaintiff response to motion to reconsider, challenge to subject matter jurisdiction, and (3) Motion to reconsider and its supporting brief, all of record. In these filings, and in oral presentation, accused have presented defects lethal to plaintiff.

4. The order says “the Court will not disturb its earlier ruling. Defendants failed to respond to plaintiff’s specification of material facts as required by Rule 56.03.” Accused “are now attempting to belatedly assert new defenses, including subject matter jurisdiction. The time has run out to assert such defenses. The judgment is final.” Their motions to reconsider — denied. Motion to set aside — denied.

Plaintiff must establish subject matter jurisdiction

5. Plaintiff has given no answer to accused’s challenge to jurisdiction, as required by law. The reply from Flexibility, which drafted the court’s order, is that the time has elapsed to challenge it. The doctrine applies in administrative disputes. “We hold that a trial court does not have subject matter jurisdiction of a workers’ compensation case until the plaintiff employee has exhausted the benefit review conference process. *** Where subject matter jurisdiction is challenged under Rule 12.02(1), the party asserting that subject matter jurisdiction exists *** has the burden of proof.” Chapman v. DaVita, Inc., 380 S.W.3d 710, 712 (Tenn. 2012)

6. The court pits a procedural signpost against a piece of legal infrastructure and finds the infrastructure wanting. Accused object. A procedural error is of little matter when plaintiff and court, as if on a team, fail to establish subject matter jurisdiction, unmistakable as law in Tennessee, foundational across American jurisprudence. 

7. ➤ “Whenever subject matter jurisdiction is challenged, the burden is on the plaintiff to demonstrate that the court has jurisdiction to adjudicate the claim.” Redwing v. Cath. Bishop for Diocese of Memphis, 363 S.W.3d 436, 445 (Tenn. 2012)

8. ➤ “A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974) 

9. ➤ “If it were a case of intrinsic fraud, the court would clearly have no jurisdiction of the case.” New York Life Ins. Co. v. Nashville Tr. Co., 200 Tenn. 513, 532, 292 S.W.2d 749, 758 (1956)

10. ➤ “Judgment of court without jurisdiction is void.” Harvey v. City of Oneonta, 715 So. 2d 779 (Ala. 1998)

11. ➤ “Where there is no jurisdiction over the subject matter, there is, as well, no discretion to ignore that lack of jurisdiction.” See F.R.Civ.P. 12(h)(3), supra note 1. Joyce v. United States, 474 F.2d 215, 219 (3d Cir. 1973)

12. ➤ “The lack of subject matter jurisdiction may properly be raised for the first time at the appellate stage.” Hill Top Devs. v. Holiday Pines Serv. Corp., 478 So. 2d 368, 370 (Fla. Dist. Ct. App. 1985)

13. ➤ “However, when the parties have not provided sufficient legal or factual justification for this Court’s jurisdiction, this Court is not obligated to embark on its own expedition beyond the parties’ arguments in pursuit of a reason to exercise jurisdiction. The burden of establishing the existence of subject-matter jurisdiction falls on the party invoking that jurisdiction.” Crutcher v. Williams, 12 So. 3d 631, 635 (Ala. 2008)

14. ➤ “Once jurisdiction has been challenged, the plaintiff bears the burden of proving the existence of jurisdiction. Once the plaintiff makes out a prima facie showing, the burden shifts to the moving party to show a lack of jurisdiction.” Mountaire Feeds, Inc. v. Agro Impex, S.A., 677 F.2d 651, 653 (8th Cir.1982) (citations omitted) Wines v. Lake Havasu Boat Mfg., Inc., 846 F.2d 40, 42 (8th Cir. 1988)
    
    

    Judge Kyle Hedrick rejects demands he take judicial notice of fraud. (Photo Kyle Hedrick)

15. ➤ “A judgment is void if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process.” Klugh v. United States, 620 F. Supp. 892, 901 (D.S.C. 1985), aff’d in part, vacated in part, 818 F.2d 294 (4th Cir. 1987)
    

    “The court pits a procedural signpost against a piece of legal infrastructure and finds the infrastructure wanting. Accused object.”

16. ➤ “A court’s authority to exercise its subject matter jurisdiction over a case may be restricted by a failure to comply with statutory requirements that are mandatory in nature and, thus, are prerequisite to a court’s lawful exercise of that jurisdiction.” Moore v. Commonwealth, 259 Va. 405, 409, 527 S.E.2d 415, 417 (2000)

17. ➤ “As orders and judgments entered by courts lacking subject matter jurisdiction are void, ‘issues regarding subject matter jurisdiction should be considered as a threshold inquiry” and “resolved at the earliest possible opportunity.’” Nandigam Neurology, PLC v. Beavers, 639 S.W.3d 651, 660 (Tenn. Ct. App. 2021)

18. Flexibility, a corporation, is a creature of government. “It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis.” Ex parte Rhodes, 202 Ala. 68, 71, 79 So. 462, 465 (1918)

Fraud, fraud on the court

19. This case is void. It is without form. As a matter of law it is a nullity for reasons adverted to in the record, namely lack of subject matter jurisdiction. The movant operates a criminal lending enterprise. Its attorney, Cheadle Law, is debt collector in intentional and knowing activity that is a felony in New York and a misdemeanor in Tennessee, even when looking most leniently at Tennessee statutory limits on loan interest rates. 

20. Flexibility and Cheadle Law, under notice in writing by accused in this case, impose a fraud on the court — getting the court to uphold an unconscionable and unenforceable contract, the defects of which deny sufficiency to any pretense of subject matter jurisdiction. Plaintiffs make no defense of the court’s subject matter jurisdiction, nor has the court turned to plaintiffs to demand their defense of its authority.

21. The court, under notice of undenied intrinsic fraud and fraud on the court by accused, is urged to consult Rule 10 for a basis for its refusal to hear appeals alleging plain error and acting to extend litigation into the court of appeals when the law is clear that the case must be dismissed ministerially, and with prejudice.