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INVOKING A FEDERAL COURT OF EQUITY


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#1 darren34276

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Posted 29 January 2013 - 02:23 PM

I am trying to invoke "suit in equity" in the federal court?
I attempted this process before with a general filing and I
dont believe the court ever saw "equity" on my bill.
this invokes a "private" trust exclusive to only the
specific parties.

The way that I am seeing it (from many of the equity books
that I have read) it would invoke a different or customized
cover sheet and may have to be sent to the chief justice (Roberts)
of the federal courts under a private disclaimer and motion
for special protection order for a special chancellor for an
ex parte determination review of my private trust


trying to find the exact procedure to invoke into equity's
exclusive jurisdiction and having a "special chancellor"
appointed in a suit in equity??


comments are most appreciated !

******

Edited by FindLaw_AHK, 29 January 2013 - 02:30 PM.
This post has been edited to remove personal or identifying information. -Moderator


#2 pg1067

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Posted 29 January 2013 - 03:20 PM

I am trying to invoke "suit in equity" in the federal court?


Despite your use of a question mark, this sentence is not a question.


I attempted this process before with a general filing and I
dont believe the court ever saw "equity" on my bill.


What "bill" are you talking about?


this invokes a "private" trust exclusive to only the
specific parties.


Huh?


The way that I am seeing it (from many of the equity books
that I have read) it would invoke a different or customized
cover sheet and may have to be sent to the chief justice (Roberts)
of the federal courts under a private disclaimer and motion
for special protection order for a special chancellor for an
ex parte determination review of my private trust


Again, huh? And, as far as sending things to Chief Justice Roberts, the U.S. Supreme Court has original jurisdiction only in cases "affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party" (and, even in those cases, you don't send anything directly to the Chief Justice).


trying to find the exact procedure to invoke into equity's
exclusive jurisdiction and having a "special chancellor"
appointed in a suit in equity?


Again, this isn't a question despite your use of a question mark. And again, huh?

Your post uses some rather archaic language, so I'm not sure what you've been reading. There are no "federal courts of equity," and the distinction between "courts of equity" and "courts of law" has been largely eliminated in modern judicial systems (both on the federal level and in most states). Nor are there any "chancellors" in the federal judicial system (the only state I can think of that still uses the term "chancellors" to refer to certain judicial officers is Delaware, although there may be a few others). The primary federal courts are called district courts, which have jurisdiction over both legal and equitable matters. The judges in those courts are called district judges and magistrate judges. You can read about the federal court system at its web site: www.uscourts.gov.

If you want to clarify what on Earth you're talking about, we may be able to point you in the right direction.

#3 Tax_Counsel

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Posted 29 January 2013 - 04:07 PM

In order to sue in federal court with an equity claim, you need a federal cause of action (e.g. the claim must be based on the U.S. constitution, federal statute or federal regulations, etc., or must involve a federal agency). You will get much more help on these boards if you indicate whom you are trying to sue (no individual or corporate names, however), in what states you and other party or parties are locate, and what it is that you are trying to accomplish. Also, if you filed in federal court before, what did you file and what was the outcome?

#4 darren34276

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Posted 06 February 2013 - 08:52 PM

I apologize if I was not clear.....I wrote this when I was very tired ... excuse me for any misconstruments..

I am not looking to "sue" for damages, that would be an "at-law" action... I am looking for specific performance regarding a breach of a private trust by the trustees or should I say, a non-peromance by a trustee which the court of equity would compel the performance. but due to its private nature, I would have to invoke a special chancellor under a private protection order...

my trust is private and no detailed information can be released in the public or I would be causing a breach myself.

just as Henry Gibson stated sec. 925 - Trusts Generally Considered.
A trust, in the most enlarged sense in which that term is used in our jurisprudence, is a beneficial interest in property, real or personal, distinct from the legal possession and ownership thereof. In trusts, the legal title and possession of the property are in one person, called a trustee;




the equitable title and beneficial use of the property are in another person, called a cestui que trust, or beneficiary.


The trustee holds the direct and absolute dominion over the trust property, in the view of Courts at law; while, in the view of Courts of Equity, the trustee is a mere steward to hold, manage and account for the proceeds of, trust property for the exclusive benefit of the beneficiary.



In the sight of a Court of law, the beneficiary has no interest in the trust property;


while in the sight of a Court of Equity, the beneficiary has all the enjoyable interest.


the trustee holds the legal title and the possession of the trust property, but all the benefits arising from the property, its income or profits, belong wholly, or in part, to the beneficiary.

I wish to file a "suit in equity" but there has to be a special process to invoke equity jurisdiction in the federal courts.
Some states refer to it as a "special term" or "special hearing or process".. I am uncertain of the federal courts and their special procedures to invoke equity's exclusive and inherent jurisdiction.


The rule which limits courts of equity to cases where there is no adequate remedy at law, does not, speaking generally, apply to trusts, as there equity has a natural and primary office, superadded to any legal rights. McCampbell v. Brown, 48 Fed., 795;


The court rules of law and equity, were not merged but rather segregated within one civil action, which only the distinction was abolished.

The Judicature Act pertains to the Enlarged Jurisdiction of at-law and equity but inherent equity jurisdiction is above and beyond this Act since there are two sets of rules:
1) the rules of court;
2) the principles and doctrines of equity as the rules pertain to the equity maxims;

"In the English Judicature Act, passed in 1873, it is provided that '' generally, in all matters in which there is any conflict or variance, between the rules of Equity and the rules of the common law with reference to the same matter, the rules of Equity shall prevail."


DOUGLAS ET AL.
v.
CITY OF JEANNETTE ET AL.
No. 450.
Supreme Court of United States.

Argued March 10, 11, 1943.
Decided May 3, 1943.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.
Notwithstanding the authority of the district court, as a federal court, to hear and dispose of the case, petitioners are entitled to the relief prayed only if they establish a cause of action in equity.


199 F.2d 694: Kerrigan's Estate v. Joseph E. Seagram & Sons, Inc. et al (1952)

We are accustomed to the application of the rule that pleadings may be treated as amended to conform to proof. F.R.C.P. Rule 15. 3 Moore's Federal Practice 846. Analogous situations include treating an action erroneously brought at law as transferred to equity (3 Moore's Federal Practice 822),

I mentioned Roberts since the equity books that I have read stated that you most go to the chief justice.... whether federal or state. In turn, he appoints a special chancellor to make a determination review of a party's trust... if all the elements are presents then there is a trust, from what I understand...

I am simply looking for the proper process to invoke equity's jurisdiction in a federal court.

your comments would be deeply appreciated....

#5 Tax_Counsel

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Posted 07 February 2013 - 03:07 AM

I think it is likely that you cannot bring this claim in federal court. Your problem is that federal courts are courts of limited jurisidiction. They may only hear those cases and controversies that the U.S. Constitution and federal statute provide. The Constitution sets the outer limits of the cases that federal courts may hear. Federal statutes then determine which federal courts may hear what types of claims within the bounds set by the Constitution. The Constitution provides that federal courts may hear the following cases:


The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.


In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.


U.S. Const. Art. III, § 2.

Trusts are governed by state law — federal law doesn’t deal with trust matters. You are seeking to sue a trustee for specific performance. I assume that, as is most common, that the trust is a private trust and the trustee is a private person or entity, i.e. not a government agency. Thus, you evidently are not suing any agency of the federal govenrment, nor any ambassdor, minister, or public consul. The only provision of the Constitution that permits suits based on state law between private persons is the provision that allows suits between citizens of different states. This is known as diversity jurisdiction.

There is a further limitation on diversity jurisdiction set by federal statute, 28 U.S.C. § 1332. Under that statute, in order for a federal court to have jurisdiction to hear a claim based on diversity jurisdiction, the defendant and the plaintiff must be be citizens of different states and there must be an amount in controversy in excess of $75,000. Claims in equity can be very hard to value, and unless you can show that the relief sought has a value of $75,000, you cannot proceed with the claim in federal court even if you are a citizen of a different state from both the trust and the trustee (if you are suing them both). In short, you’d have establish that the value of the performance you are seeking exceeds $75,000 to proceed in federal court. A federal appeals court rejected a claim of federal jurisdiction by beneficiaries of a trust seeking to compel an accounting of the trust from the trustee as required by state law for that very reason: the plaintiffs had not clearly established that the information they sought would have a value in excess of $75,000. That the trust corpus easily exceeded $75,000 was not important because there was no dispute about the trust corpus and the beneficiaries weren't seeking to get any of the trust corpus. They were simply seeking the accounting, and the value of that information had not been established. Macken v. Jensen, 333 F.3d 797 (7th Cir. 2003).

Finally, even if you get over the isssues of citizenship and the value of the claim, there is another potential problem. The U.S. Supreme Court has long held that cases involving probate matters cannot be heard in federal court. The probate of a will and related proceedings are the exclusive area of state courts. Testamentary trust matters that would also be heard by a state probate court may also fall within this exclusion. If it does, state court may be the only forum open to you. For example, see Dragan v. Miller, 679 F.2d 712 (7th Cir. 1982).

#6 Tax_Counsel

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Posted 07 February 2013 - 03:28 AM

I mentioned Roberts since the equity books that I have read stated that you most go to the chief justice.... whether federal or state. In turn, he appoints a special chancellor to make a determination review of a party's trust... if all the elements are presents then there is a trust, from what I understand...


Let me address this part of your latest post separately. Assuming that you did have a case that meets the requirements for diversity jurisdiction and that you aren't barred from federal court by the probate exclusion rule, you would bring your claim in federal district court in the district where the defendant is located. The U.S. Supreme Court does not have original jurisdiction to hear these claims, as the second paragraph of Article III, § 2 of the U.S. Constitution that I quoted before states that the Supreme Court has orginial jursidiction in “cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party.” The Supreme Court has appellate jurisdiction only in all other matters. Instead, 28 U.S.C. § 1332 directs that the district courts are where diversity cases are heard. These cases are litigated like any other in federal court following the Federal Rules of Civil Procedure. That means you'd start by filing a complaint in the district court, paying the $350 filing fee, and having the complaint and summons served on the defendant. There will be no appointment of a “special chancellor.” The case will instead be heard by a district judge or magistrate judge, like any other civil proceeding in federal court.

#7 pg1067

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Posted 07 February 2013 - 09:31 AM

I am looking for specific performance regarding a breach of a private trust by the trustees or should I say, a non-peromance by a trustee which the court of equity would compel the performance. but due to its private nature, I would have to invoke a special chancellor under a private protection order.


What do you mean by "private trust" and "private protection order"?


my trust is private and no detailed information can be released in the public or I would be causing a breach myself.


If you're talking about posting detailed information on these boards, I certainly agree you should not do that. However, court filings are public record. As far as I know, every state has some provision for sealing records if certain conditions are met, but my guess is that you could not meet those conditions.


just as Henry Gibson stated sec. 925 - Trusts Generally Considered. . . .


I'm guessing this is a reference to the (primarily) 19th Century Tennessee Representative and legal scholar, Henry R. Gibson (and, from that, I'm inferring that you're in Tennessee, although your citation of a case from the Third Circuit may suggest otherwise). Why you're citing from a 121 year old text and a 140 year old English law is a bit beyond me, though, and perhaps that explains on your insistence on making distinctions between courts of equity and courts of law. Everything you cited in your follow up post is at least 60 years old, and you should consider that some of the concepts (particularly procedural rules) mentioned in the things you cited may be very outdated. Although, if you are in Tennessee, it does appear that Tennessee maintains Chancery and Probate Courts that presumably would deal with disputes relating to trusts, and this document appears to explain the jurisdiction of those courts (not clear how current it is): http://www.hamiltont...urisdiction.pdf.


I mentioned Roberts since the equity books that I have read stated that you most go to the chief justice.... whether federal or state. In turn, he appoints a special chancellor to make a determination review of a party's trust... if all the elements are presents then there is a trust, from what I understand.


Pray tell whether these books you're reading are as old as everything else you've cited. I can't imagine that any state permits filings directly with the supreme court (much less the chief justice of the supreme court) just because the matter involves a trust and the filing party is seeking an equitable remedy.


I am simply looking for the proper process to invoke equity's jurisdiction in a federal court.


Why exactly do you think your case belongs in federal court? If federal court jurisdiction exists, the way to "invoke equity's jurisdiction" is to file a complaint in the appropriate federal district court and state a proper cause of action that entitles you to some form of equitable remedy.

#8 Fallen

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Posted 07 February 2013 - 12:13 PM

Ya'll are being exceedingly generous with your analysis and feedback on this. I didn't even read all of the follow-up (as to the initial post, have no idea what poster means by "general filing"). :)

Ultimately, while the poster may file whatever he likes wherever he pleases (even globally, and regardless of whether the court has jurisdiction), of course he wants to at least consider what would otherwise see it straight into a circular file (or laughed at in a coffee klatch).

Even when one is fed up w/ hoops and decides they simply want attention called to X without any expectation of a hearing, succeed or (more likely) fail, and chooses to leapfrog from X low-level/trial court within a state system straight to its supreme court and bypass protocol in between, at the very least one had best (a) have reason to believe it involves an unusual issue the court would normally take on/be interested in, and (B) damn good reason to leapfrog that aligns with the court's world view and "exceptional circumstances list," and © file along with it a petition/motion for leave to file and memorandum of law as to why the court ought to grant the request. Such courts really take a dim view of folks not even doing a polite "Excuse me, but may I ...?" and instead just barging through the door expecting to be heard.

I'll echo PG's advisory "warning" with a twist: (Many) legal issues are complicated. Explanations and comments here might not fully identify or explain the ramifications of your particular problem. I do not give legal advice as such (and such is impermissible here at any rate). Comments are based on personal knowledge and experience and legal info gleaned over a quarter century, and every state has differing laws on and avenues to address most topics.  If you need legal advice, you need to consult (and pay) a professional so that you may have someone to hold accountable.  Acting on personal and informational advice from a stranger on the internet is a bad idea -- at least not without your own thorough due dilience/research and confirmation as it applies to your situation.  :)


#9 Tax_Counsel

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Posted 07 February 2013 - 02:07 PM

Ultimately, while the poster may file whatever he likes wherever he pleases...


No, Fallen, he may NOT simply file whatever he likes wherever he pleases. He potentially could do it, i.e. have the physical ability to go to a clerk's office and present it for filing, but the filing may end up violating the applicable statute or court rules. You of all people should have been more careful with this, given your oft mentioned distinction between the words CAN and MAY. Violating some statutes or court rules may lead to sanctions of some sort. So suggesting he MAY (i.e is permitted) to file whatever he likes wherever he pleases is simply wrong. He perhaps CAN do it, but as you often say, discussing what CAN be done isn't terribly useful.

#10 BOR_BOR

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Posted 08 February 2013 - 10:13 AM




DOUGLAS ET AL.
v.
CITY OF JEANNETTE ET AL.
No. 450.
Supreme Court of United States.

Argued March 10, 11, 1943.
Decided May 3, 1943.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.
Notwithstanding the authority of the district court, as a federal court, to hear and dispose of the case, petitioners are entitled to the relief prayed only if they establish a cause of action in equity.



I am simply looking for the proper process to invoke equity's jurisdiction in a federal court.


Heres is the case, it mentions a violation of the Civil Rights Act of 1871, which in more common terms is a 1983 action, 42 USC 1983, deprivation of rights under color of law, the federal COA. You are focusing on the word EQUITY, and you are confusing yourself. I am not a lawyer, but the word is simply phraseology, as the others have pointed out.


http://supreme.justi...9/157/case.html

It would appear, since it is from 1943, it was intended, but not filed that way, to ask for a Declaratory Judgment a law was unconstitutional, yet it mentions an Injunction was not appiled for to halt its enforcement?

New Jersey still, I think, has what are known as Chancery Courts, chancery=equity, more or less, but as stated, the word EQUITY has not particularized meaning in today's jurisprudence.

I know of a case, but can not rememeber it off hand, that a federal court has only RARE circumstances when it can intervene in a state criminal prosecution, of course, post 1943. The case at hand attempted to halt a prosecution even before it started. The case has the word EQUITY, so you are hung up on it.

#11 Tax_Counsel

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Posted 08 February 2013 - 12:43 PM

.....the word EQUITY has not particularized meaning in today's jurisprudence.


I disagree that the word equity has no particular meaning in the law. It does. It has several distinct meanings depending on the context in which it is used, however, so it's important to read things carefully. One of those meanings refers to what the law calls actions (or remedies) at equity, which are distinct from actions (or remedies) at law. Over a century ago, it was common for there to be different courts that heard these claims — equity courts and law courts (though they went by a variety of names). It also used to be the case that legal pleading for various types of claims was highly distinct, placing a high importance on the form of pleading. These distinctions made lawsuits more complicated than they needed to be. For that reason, the federal government and most state governments decades ago reformed their court systems to do two important things: first, they combined the courts of equity and courts of law into single unified courts and second, they simplified legal pleading into a single form called a complaint or petition. But that does not mean the distinction between actions in equity and actions at law were erased. Though the same courts now hear both kinds of cases and the pleading is not long distinct, the substantive requirements for equitable relief still differ from claims at law (i.e. claims for monetary judgments). One of those requirements that still endures in many jurisdictions, for example, is the longstanding requirement that a remedy in equity is not available if a remedy at law would be sufficient to to provide relief.

#12 darren34276

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Posted 10 February 2013 - 04:09 PM

What do you mean by "private trust" and "private protection order"?

Lets say I have formed a private trust with a private party, per my expressed intent. All elements are presents (parties, purpose, intent, trust res and method of formation). the other party is currently hold my truste res, regardless if they have disclaimed or not, equity will deem them as the trustee by their conduct, not words..

Now, as the grantor that created this private trust, I now want a specific, timely performance and/or final accounting from the trustee. so I send the trustee a confidential, private trust arrangement and indenture with instructions and orders.

Lets say trustee goes silent and fails to perform their trustee duties timely. now they're in breach. I dont want damages but I do want their specific performance. so I need to file a bill in equity for the courts to compel the trustee for their specific performance.


I have to file a suit in equity since I have no adequate remedy at law for breach of trust.

BUT... if I file my bill PUBLICLY, (public side of the court) with a general civil cover sheet, then I have just released my private trust indenture and its confidential information into the public and breached my own trust.

(Thinking out loud) so should I devised a substitute "special" cover cover and file it, like a miscellaneous filing without any pleadings or exhibits attached just to have it docketed. Once docketed then file for a special protection order? if received a protection order then I can file all private trust information and exhibits. There still has to be a determination review of my trust (he who claims trust, must prove trust).


Now assuming this goes according, the defendant (trustee) is entitled to see all pleadings and exhibits BUT wouldnt his/her attorney be prohibited from viewing any documents since the attorney is not a specifically named party to the trust (Grantor/trustee/beneficiary)?

wouldnt that require an ex parte determination review hearing to first prove the validatity of my private trust?

The beneficiary would have to be the party to file the action (considering his/she is at the age of majority and is not under any guardian/ward relationship). am I correct in the correct plaintiff party?


In Gibson, sec. 925 - Trusts Generally Considered. states the following:
A trust, in the most enlarged sense in which that term is used in our jurisprudence, is a beneficial interest in property, real or personal, distinct from the legal possession and ownership thereof. In trusts, the legal title and possession of the property are in one person, called a trustee;

the equitable title and beneficial use of the property are in another person, called a cestui que trust, or beneficiary.

The trustee holds the direct and absolute dominion over the trust property, in the view of Courts at law; while, in the view of Courts of Equity, the trustee is a mere steward to hold, manage and account for the proceeds of, trust property for the exclusive benefit of the beneficiary.

In the sight of a Court of law, the beneficiary has no interest in the trust property;

while in the sight of a Court of Equity, the beneficiary has all the enjoyable interest.

the trustee holds the legal title and the possession of the trust property, but all the benefits arising from the property, its income or profits, belong wholly, or in part, to the beneficiary.

Once the beneficiary files his suit and get the approval the judge/chancellor/master that a valid trust exists then
I am assuming that everything goes well based on the bill and exactly whats been prayed for whether generally or specially.

Hypothetically speaking, if the grantor/beneficiary is in one state and the trustee is in another state - is the federal court the proper jurisdiction or should it remain with the state courts?

I appreciate your imput.



If you're talking about posting detailed information on these boards, I certainly agree you should not do that. However, court filings are public record. As far as I know, every state has some provision for sealing records if certain conditions are met, but my guess is that you could not meet those conditions.




I'm guessing this is a reference to the (primarily) 19th Century Tennessee Representative and legal scholar, Henry R. Gibson (and, from that, I'm inferring that you're in Tennessee, although your citation of a case from the Third Circuit may suggest otherwise). Why you're citing from a 121 year old text and a 140 year old English law is a bit beyond me, though, and perhaps that explains on your insistence on making distinctions between courts of equity and courts of law. Everything you cited in your follow up post is at least 60 years old, and you should consider that some of the concepts (particularly procedural rules) mentioned in the things you cited may be very outdated. Although, if you are in Tennessee, it does appear that Tennessee maintains Chancery and Probate Courts that presumably would deal with disputes relating to trusts, and this document appears to explain the jurisdiction of those courts (not clear how current it is): http://www.hamiltont...urisdiction.pdf.




Pray tell whether these books you're reading are as old as everything else you've cited. I can't imagine that any state permits filings directly with the supreme court (much less the chief justice of the supreme court) just because the matter involves a trust and the filing party is seeking an equitable remedy.




Why exactly do you think your case belongs in federal court? If federal court jurisdiction exists, the way to "invoke equity's jurisdiction" is to file a complaint in the appropriate federal district court and state a proper cause of action that entitles you to some form of equitable remedy.



#13 pg1067

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Posted 11 February 2013 - 12:04 PM

Whether the trustor/settlor (as opposed to a beneficiary, which the trustor/settlor may be as well) has a right to an accounting depends on the terms of the trust instrument. I still don't understand your use of the phraseology "private trust" because you apparently believe that assigning this label makes public disclosure of trust instrument or any terms a breach of the trust.

You still haven't identified the relevant state, so I can't say anything with certainty, but simply assigning a label to a trust doesn't mean the trust is entitled to any sort of confidentiality. The extent to which you can file under seal with a court depends on the applicable state law.

I suggest you consult with a local attorney for advice.

#14 Tax_Counsel

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Posted 12 February 2013 - 11:23 PM

I think the problem here is that you reading some very outdated information on trusts and litigation. I think you are also assuming some meanings for terms that are not accurate.

BUT... if I file my bill PUBLICLY, (public side of the court) with a general civil cover sheet, then I have just released my private trust indenture and its confidential information into the public and breached my own trust.


Let’s start with this. You seem to be assuming that the term private trust means that information about the trust is confidential and may not be disclosed by you to others. That's not correct. Black’s Law Dictionary, 8th ed. explains the meaning of private trust pretty well: “A trust created for the financial benefit of one or more designated beneficiaries rather than for the public benefit; an ordinary trust as opposed to a charitable trust.” Another term for private trust is personal trust. Thus, the term private trust has nothing to do with confidentiality. It instead simply indicates a trust set up to benefit specific persons or organizations rather than a trust set up as a public charity.

Unless there is a an enforceable contract that requires that you keep information about this trust confidential, you can tell anyone you like about it. Even with a contract that requires confidentiality, a court might not enforce that to the extent that it prohibits you from seeking the help of the courts in the event a conflict arises.

So, is there are a contract that prohibits you from disclosing information about this trust? If so, exactly what does it say?


(Thinking out loud) so should I devised a substitute "special" cover cover and file it, like a miscellaneous filing without any pleadings or exhibits attached just to have it docketed. Once docketed then file for a special protection order?


A court is unlikely to accept such a filing. The process for sealing matters is very court specific, and you’d need to ask a lawyer familiar with that court what ought to be done. But filing some sort of blank paper to get a docket number assigned isn’t going to do the trick for you.

Also, your chances of getting a court to seal anything in a matter like this are remote. Courts are extremely reluctant to hide litigation from public view. Ours is an open court system so that the public may see how justice is done and ensures that courts act responsibly by exposing their work to the light of public scrutiny. A court will not conduct a case in secret or seal filings from public view unless there is a statute that requires it or there is an extremely compelling reason for keeping the information from public view (e.g. matters where the disclosure would compromise national security, put someone at great risk of physical harm, or other circumstance where significant harm may result from making the information public). Many courts will today redact routinely redact from the public record very limited information that might lead to identity theft, like a social security number, etc. But it’s exceedingly rare that the entire matter would be kept from public view when national security is not implicated. Simply preventing embarrassment or keeping secret a family’s financial affairs isn’t compelling enough to warrant sealing court matters from public view. What is the compelling circumstance you’d cite here to support the court taking the extraordinary step of keeping things from public view here? Cases concerning private (i.e. personal) trusts are litigated all the time and conducted in public court proceedings. Sure, someone might prefer that the information stay private, but personal preference is not the benchmark used.


Now assuming this goes according, the defendant (trustee) is entitled to see all pleadings and exhibits BUT wouldnt his/her attorney be prohibited from viewing any documents since the attorney is not a specifically named party to the trust (Grantor/trustee/beneficiary)?


Even assuming that there is a contract here that requires confidentiality, courts aren’t going to enforce it to the extent that the agreement would prevent a party from sharing the information with his/her attorney because that would compromise the party’s right to get legal advice and representation.


wouldnt that require an ex parte determination review hearing to first prove the validatity of my private trust?


No. You are suing the trustee of the trust for an accounting. The trustee is, of course, entitled to see the information about the trust even if there were confidentiality agreement because the trustee cannot carry out his functions as trustee if he cannot know the details of the trust. So, what is the need for any ex parte proceeding here?


The beneficiary would have to be the party to file the action (considering his/she is at the age of majority and is not under any guardian/ward relationship). am I correct in the correct plaintiff party?


The plaintiff must be someone who is entitled to the accounting either under the applicable state law or under the terms of the trust agreement.


Once the beneficiary files his suit and get the approval the judge/chancellor/master that a valid trust exists then I am assuming that everything goes well based on the bill and exactly whats been prayed for whether generally or specially.


What is the need to determine that a trust exists? Does anyone involved here dispute that a valid trust exists? If not, then there is no need for the court to determine something that is not in dispute. In an action for an accounting there is generally no dispute that a valid trust exists. The issue is typically just whether the plaintiff is entitled to the accounting he seeks.


Hypothetically speaking, if the grantor/beneficiary is in one state and the trustee is in another state - is the federal court the proper jurisdiction or should it remain with the state courts?


In order to litigate it in federal court, no plaintiff in the case may be a citizen of the same state as any defendant in the case AND the amount in controversy must exceed $75,000. So even if the person seeking the accounting is in a different state than the state in which the trust is settled and the state where the trustee is located, the party seeking to have the case heard in federal court must show that the value of getting the accounting exceeds $75,000. As I indicated before, that’s very hard to do in the vast majority of trusts. The trust itself might have a lot more than $75,000 of property in it, but that’s not what matters. What matters is what the accounting itself is worth.

Assuming the requirements to file in federal court could be met, the issue then is what forum is most advantageous to the plaintiff. That decision cannot be made without knowing in what state’s courts the matter would be litigated as well as knowing the relevant details of the trust.

I strongly urge you to seek advice from an attorney who litigates trust/probate matters in the state where the trust is settled. The stuff you are reading about trusts and litigation is leading you astray. You are making this much more complicated than it needs to be simply to seek an accounting of the trust.

#15 pg1067

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Posted 13 February 2013 - 10:10 AM

Further to one of the points just made by "Tax_Counsel," when parties want to keep things out of public court files, they sometimes agree that disputes will be resolved through private arbitration. Unlike court proceedings, records relating to private arbitration are not generally available to the public. Does your trust or any separate contract provide for such alternative dispute resolution?

#16 darren34276

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Posted 15 February 2013 - 10:26 PM

Further to one of the points just made by "Tax_Counsel," when parties want to keep things out of public court files, they sometimes agree that disputes will be resolved through private arbitration. Unlike court proceedings, records relating to private arbitration are not generally available to the public. Does your trust or any separate contract provide for such alternative dispute resolution?


the elements of formation have been established then the trustee receives a confidential trust indenture arrangement which contain a Acknowledgement Clause; Silence by Acquiescence Clause; Habendum Clause; Repudiation clause; Declaration of law forum established
- and contains the Grantor's instructions and orders to the trustee to be specifically performed timely...failure to perform in typically a breach and enforceable in equity exclusive jurisdiction since there is no adequate remedy at-law for a breach of trust.

If a private trust indenture arrangement (as you say, a "contract") is specifically stated to be "confidential and private", the trustee cant breach the grantor's intent and disclose any information. similarly to a non-disclosure contract....

I am not sure if you're just thinking that there is one set of rules because I see two sets.

The Judicature Act pertains to the Enlarged Jurisdiction of at-law and equity but inherent equity jurisdiction is above and beyond this Act since there are two sets of rules:
1) the rules of court;
2) the principles and doctrines of equity as the rules pertain to the equity maxims;

"In the English Judicature Act, passed in 1873, it is provided that '' generally, in all matters in which there is any conflict or variance,
between the rules of Equity and the rules of the common law with reference to the same matter, the rules of Equity shall prevail."

I see it like this ... if my trust is private then I cant file it into the public side of the court, but must be
filed "specially" (privately) and not generally (publically).

It the state court they have certain meanings such as "special term" and "special proceeding" which is
of course opposite of general/public....

i havent found anything that refers to "special term" or "special proceeding" in the federal courts.
do you?

#17 Tax_Counsel

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Posted 16 February 2013 - 11:53 PM

I am not sure if you're just thinking that there is one set of rules because I see two sets.

The Judicature Act pertains to the Enlarged Jurisdiction of at-law and equity but inherent equity jurisdiction is above and beyond this Act since there are two sets of rules:
1) the rules of court;
2) the principles and doctrines of equity as the rules pertain to the equity maxims;

"In the English Judicature Act, passed in 1873, it is provided that '' generally, in all matters in which there is any conflict or variance,
between the rules of Equity and the rules of the common law with reference to the same matter, the rules of Equity shall prevail."


Except that the English Judicature Act is not the law in any state of the U.S. today. Please stop reading whatever ancient texts on trusts you are reading. The law is very different today than it was in 1873. You need to understand the law as it is today, not over a century ago. You are putting way too much emphasis on “equity” when that is not a big issue today in an action to compel an accounting. You are making this out to be a lot more complex than it really is under modern rules of litigation.

I see it like this ... if my trust is private then I cant file it into the public side of the court, but must be filed "specially" (privately) and not generally (publically).

It the state court they have certain meanings such as "special term" and "special proceeding" which is
of course opposite of general/public....

i havent found anything that refers to "special term" or "special proceeding" in the federal courts.
do you?


You misunderstand things here, too. There is no “public side” and “private side” of the courts. Court proceedings in the U.S. are public except for very limited circumstances in which a court may close a proceeding or parts of it to the public. As I mentioned before, sealing a record or closing a proceeding is an extraordinary act that will not be done unless there is a statute that specifically provides for it (as in the case of certain juvenile proceedings, for example) or there is some other extremely compelling reason to do it (some significant harm might occur if the proceeding was public i.e. damage to national security; death or serious physical harm to some person, etc.). A contract requiring confidentiality isn't one of the compelling reasons for conducting a court matter in secret. Moreover, a court is likely to declare a confidentiality provision in a contract or trust unenforceable to the extent that it would prevent a party from litigating a controversy in court, thus solving your problem of being liable to someone for breach of some confidentiality agreement for revealing information about the trust by pursuing the litigation. You'd want to consult a trust attorney in the state that has jurisdiction over the trust about that.

You also misunderstand the meaning of special proceeding and special term. Neither means a court proceeding done in secret. Again, Black’s Law Dictionary, 8th Deluxe Ed., explains the meanings of these terms well. Special proceeding means:

1. A proceeding that can be commenced independently of a pending action and from which a final order may be appealed immediately. 2. A proceeding involving statutory or civil remedies or rules rather than the rule or remedies ordinarily available under the rules of civil procedure; a proceeding providing extraordinary relief.


And special term means:

A term of court scheduled outside the general term, usu. for conducting extraordinary business.


Understand that the general term of a court is the time period “during which the court ordinarily sits.” So, you can think of the general term as similar to a business’ typical hours of operation, and the special term would be when the business is conducting operations outside its normal business hours. It used to be more common in the past than it is today that courts would conduct business only during certain weeks or months of the year. That was the court’s general term. If some matter arose that could not wait for the next general term, the court may convene in a special term to handle it.

If the problem here is that you personally don't want the information to be made public, rather than a worry that you’ll be liable to someone else for disclosure by litigating it, then I suggest you take up the idea that pg1067 mentioned and seek to get the opposing party to arbitrate the matter. Arbitration can be done in private, and is one of the reasons people choose arbitration over going to court to resolve disputes.

You really need to get some legal advice from an attorney, I think. You are not finding the right information you need to handle this matter correctly. All that old stuff you are reading is just going to confuse you. The law keeps changing, and is different in each state. Trying to apply a English law that is over 100 years old to a trust problem in the U.S. today isn’t going to work. You need to work with law in the particular state involved as it is today, not the law in England in 1873.




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