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It Happened To Us
Even though...no right can arise from an illegal act.

What would you do if it happened to you?


Please scroll through the documents below for an understanding of the illegalities being ignored by Judge FitzMaurice. These documents were filed in the Idaho Second Judicial District Court in Clearwater County in August 2019. They are not intended to be comprehensive, but should provide a good overview of our legal standing.


Illegalities Regarding The Actions Of PHH Mortgage Services
Filed with District Court August 2019

Comes now, we, Defendants Charles and Donna Nickerson, husband and wife, submit the following illegalities regarding the actions of PHH Mortgage Services. These illegalities demonstrate PHH Mortgage Services’ claims, documentation, and actions in their entirety are illegal, in error, void, and rooted in fraud. A preponderance of evidence establishes this determination is more probable than not and substantiates any reasonable person would agree PHH Mortgage Services committed fraud, defied regulatory requirements, violated statutory laws, deceived the Court, and has no standing or grounds to enforce foreclosure or ejectment to wrongfully foreclose and steal our ranch. Res judicata cannot and does not apply to a claim that had not yet accrued. Adjudication of the true merits has been prevented and obstructed by PHH Mortgage Services and those working with and on their behalf. No disposition based on the truth has occurred. All judgments have been rendered by summary judgment with truths, facts, and laws screaming issues of dispute that defeated summary judgment and our family pleading to let us stand before a jury. The law of the case has been forged, counterfeited, and serves to generate distrust and disdain for Idaho Courts and corruption and contamination to the county records. Therefore, due to PHH Mortgage Service’s illegal actions, the severity of injury, the loss of substantial rights, and the inherent risks associated with wrongful dispossession, we request the Court reconsider its summary judgment order, dismiss the current action with prejudice, reinstate our claims, and immediately vacate the Sheriff’s sale. We believe this request is substantially justified in law, in fact, and in truth. Our conscience, understanding of a clear distinction between right and wrong, commitment to moral integrity, and patriotic duty demand we stand against the ejectment action of PHH Mortgage Services. Truth and justice are on our side. Because it is the right thing to do, we request this Court stand with us.

 

AUTHORITIES


Key authorities relied upon in establishing our claims and defenses are categorized below and within the arguments throughout this document. Duplications for ease and convenience of reference may exist. The Standard of Review begins on page 24, Argument on page 29, and Conclusion on page 89. Referenced exhibits are attached to the Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order.

I. The Sheriff’s Sale. 2

II. Fraud, Illegalities, And Impossibilities. 6

III. Judgment Amount Is Plain Error. 11

IV. No Default 13

V. Independent Action. 15

VI. Res Judicata. 16

VII. Constitutional Rights. 18

VIII. Definitions. 19

 

 

I. THE SHERIFF’S SALE

 

Idaho Code § 1-1616. Instruments Requiring Seal of Court.
The seal of the court need not be affixed to any proceeding therein, or document except:

1. To a writ…
(Page 43)

 

Idaho Code § 11-102. Form Of Writ.
The writ of execution must be issued in the name of the people, sealed with the seal of the court, and subscribed by the clerk, and be directed to the sheriff, and it must intelligently refer to the judgment, stating the court, the county where the judgment roll is filed…
(Pages 36, 42, 43)

 

Idaho Code § 11-103. Time When Returnable.
(a) Except as provided in subsection (b) of this section, the execution may be made returnable at any time not less than ten (10) nor more than sixty (60) days after its receipt by the sheriff, to the clerk with whom the judgment roll is filed.
(Pages 38, 43)

Idaho Code § 11-304. Conduct of Sale.
All sales of property under execution must be made at auction, to the highest bidder. After sufficient property has been sold to satisfy the execution, no more can be sold… and when the sale is of real property, consisting of several known lots or parcels, they must be sold separately, or when a portion of such real property is claimed by a third person, and he requires it to be sold separately, such portion must be thus sold. The judgment debtor, if present at the sale, may also direct the order in which property, real or personal, shall be sold, when such property consists of several known lots or parcels, or of articles which can be sold to advantage separately, and the sheriff must follow such directions.
(Pages 33, 34, 43, 47)

 

Idaho Rules of Civil Procedure 54. Judgments; Costs.

(a)   Definition – Form – Amendments.

(1)   Definition and Form of Judgment. "Judgment" as used in these rules means a separate document entitled "Judgment" or "Decree". A judgment must state the relief to which a party is entitled on one or more claims for relief in the action, which may include dismissal with or without prejudice. A judgment must not contain a recital of pleadings, the report of a master, the record of prior proceedings, the court's legal reasoning, findings of fact, or conclusions of law. A judgment is final if either it is a partial judgment that has been certified as final pursuant to subsection (b)(1) of this rule or judgment has been entered on all claims for relief, except costs and fees, asserted by or against all parties in the action. A judgment or partial judgment must begin with the words “JUDGMENT IS ENTERED AS FOLLOWS: . . ,” and it must not contain any other wording between those words and the caption. A judgment may include any findings of fact or conclusions of law expressly required by statute, rule, or regulation.

(2)   Amended Judgments. If the court orders an amendment to a judgment, the amendment will be effective only after the court enters an amended judgment setting forth all of the terms of the new judgment, including those terms of the prior judgment that remain in effect. (Emphasis added.)
(Pages 35, 36, 43)

 

Idaho Sheriff's Civil Manual
3.1.10 Sheriff’s Return on Writ
a. The execution may be returnable at any time not less than ten (10) nor more than sixty (60) days after its receipt by the sheriff, to the clerk with whom judgment roll is filed (Idaho Code § 11-103). The levying officer to whom the writ of execution is delivered must return the original writ to the court that issued the writ together with a report of the levying officer’s actions and an accounting of amounts collected and costs incurred, at the earliest of the following times:

1. Promptly after all of the duties under the writ are performed.
2. When return is requested in writing by the judgment creditor.
3. If no levy takes place under the writ and the writ has expired, the return shall be made promptly.
4. Upon expiration of the time for enforcement of the judgment.
5. A copy of the return must be sent to the attorney or plaintiff that initiated the action.
(Page 38)

“This Court's decisions have set out a consistent and appropriate standard to apply in cases seeking to set aside a sheriff's sale conducted under Idaho's execution statutes. We stated that standard in Federal Land Bank of Spokane v. Curts: "As a general rule mere inadequacy of consideration is not sufficient ground for setting aside a sheriff's sale, but it is uniformly held that gross inadequacy of consideration, coupled with very slight additional circumstance, is sufficient." 45 Idaho 414, 425, 262 P. 877, 880 (1927). (Emphasis added.) We reiterated it in Gaskill, which involved a mortgage foreclosure. There, we said: "As a general rule, mere inadequacy of consideration is not sufficient ground for setting aside a sheriff's sale, but it is uniformly held that gross inadequacy of consideration, coupled with very slight additional circumstances, is sufficient." 77 Idaho at 433, 293 P.2d at 960. This rule was reiterated in Suchan where we said, "[i]n general, gross inadequacy of price coupled with irregularities in the sale warrants vacation." 113 Idaho at 109, 741 P.2d at 1296. In all of the reported cases where relief has been granted from a sheriff's sale involving a grossly inadequate purchase price, some additional circumstance was involved. In Suchan, this Court observed that, both in Gaskill and Curts, there had been not only an inadequate sale price, but the sheriff conducting the execution sale sold the property in parcels, rather than as a unit, at the direction of persons not authorized to direct the manner and order of the sale, and the sheriff also improperly ignored the highest bid offered at the sale and instead accepted a much lower bid. Suchan, 113 Idaho at 109, 741 P.2d at 1296. In Tudor Engineering Co. v. Mouw, 109 Idaho 573, 709 P.2d 146 (1985), the court granted an equitable right of redemption to a debtor where the real property executed upon and sold at the sheriff's sale produced a grossly inadequate purchase price and the judgment creditor failed to provide any of the interested parties with actual notice of the execution sale. Id. at 575, 709 P.2d at 148. The foregoing cases had one additional fact in common—they were all cases in which the party injured by the grossly inadequate sale price and additional circumstance was the judgment debtor.” Phillips v. Blazier-Henry, 154 Idaho 174 (2013)
(Page 29, 89)

 

“Courts, however, in guarding the constitutional rights to a jury trial, have repeatedly held that where the suit should have been, and in substance is, an action for the recovery of the possession of land, the right of a defendant to a jury cannot be defeated by the mere device of bringing the action in an equitable form.” Thomson v. Thomson, 7 Cal. 2d 671(1936)
(Page 40)

 

“Every court has power to watch over the execution of its judgments, and, where its process has been irregularly or fraudulently executed, to quash it. (Ala. 1880) Rhodes v. Smith, 66 Ala. 174; (Md. 1875) Schultze v. State, 43 Md. 295; (Vt. 1837) Mattocks v. Judson, 9 Vt. 343; (Va. 1795) Hendricks v. Dundass, 2 Wash. 50.”
American Digest 1658 – Present (Century Edition, Volume 21 1st Decennial – 11th Decennial) Part 447. Grounds and Part 467. Grounds.
(Page 29)

 

“If the statutory language is unambiguous, the legislatures clearly expressed intent must be given effect…Thus, the plain meaning of a statute will prevail…” Kootenai Hosp. Dist. v. Bonner Cnty. Bd. of Comm'rs, 149 Idaho 290, 233 P.3d 1212 (2010)
(Pages 38, 42)

 

“When construing the language contained in a statute, this Court will construe statutory terms according to their plain, obvious, and rational meanings.” Sweitzer v. Dean, 118 Idaho 568, 798 P.2d 27 (1990)
(Pages 38, 42, 47)

 

“The Court must enforce the statute that congress enacted” Obduskey v. McCarthy & Holthus LLP, 139 S. Ct. 1029 (Supreme Court, 2019)
(Pages 38, 42, 47)

“Throughout the course of human history, the perpetration of evil has inevitably resulted in the suffering of the innocent, and those who act in good faith. And the principle has been basic in the law that a thief conveys no title as against the true owner. … The law stands as a bulwark against the handiwork of evil, to guard to the rightful owners the fruits of their labors.” Menzel v. List, 49 Misc. 2d 300, 267 N.Y.S. 804 (NY: Supreme Court, New York 1966)
(Page 53)

 

“In the foregoing opinion in the Root cases, we cited the authorities for the principle that one who comes into a court of equity must come with clean hands, and the suitor who fails in this respect will be denied all relief, whatever may be the merits of his claim. That principle is equally applicable here.” Root Refining Co. v. Universal Oil Products Co., 169 F. 2d 514 (Circuit Court of Appeals, 3rd Circuit 1948)
(Pages 37, 80, 85)

 

Qui prior est tempore potiorest jure.
He who is prior in time is superior in right.

 

Fair Market Value

Price at which a willing seller and a willing buyer will trade. (citation omitted)

Assumes agreement between owner willing but not obliged to sell for cash and buyer desirous but not compelled to purchase. (citation omitted)

It means neither panic value, auction value, speculative value, nor a value fixed by depressed or inflated prices. (citation omitted)

It resides in estimate and determination of what is fair, economic, just and equitable value under normal conditions. (citation omitted)

Price such as a capable and diligent business man could presently obtain from the property after conferring with those accustomed to buy such property. (citation omitted)
Price which property would bring at a fair sale between parties dealing on equal terms. (citation omitted)

Black’s Law Dictionary 4th Edition

 

Grossly inadequate consideration
Consideration whose value is so much less than the fair value of the object acquired that it may not support finding that the transaction is a valid exchange. Depending on the surrounding circumstances, the transaction may actually be fraud, a gift, or something else other than a sale and purchase.
Black’s Law Dictionary 10th Edition

 

Paramount title refers to a title that prevails over any other claim of title. In real property law paramount title means the original title or ownership superior or stronger than the one with which it is compared to.
Paramount Title Law and Legal Definition, USLegal, Inc.

Prior
Proceeding in time or order
Black’s Law Dictionary 10th Edition

Priority
2. He who has the precedency in time has the advantage in right, is the maxim of the law; not that time, considered barely in itself, can make any such difference, but because the whole power over a thing being secured to one person, this bars all others from obtaining a title to it afterwards. 1 Fonb. Eq. 320.

A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.

 

II. FRAUD, ILLEGALITIES, AND IMPOSSIBILITIES

 

15 United States Code § 1641. (g) Notice of new creditor

(1) In general

In addition to other disclosures required by this subchapter, not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer, including—

(A) the identity, address, telephone number of the new creditor;

(B) the date of transfer;

(C) how to reach an agent or party having authority to act on behalf of the new creditor;

(D) the location of the place where transfer of ownership of the debt is recorded; and

(E) any other relevant information regarding the new creditor.
(Page 63)

 

15 United States Code § 1692f. Unfair practices

A debt collector may not use unfair or unconscionable

means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(6) Taking or threatening to take any non-judicial action to effect dispossession or disablement of property if—

(C) the property is exempt by law from such dispossession or disablement.
(Page 67)

12 Code of Federal Regulations § 1024.38 General servicing policies, procedures, and requirements.

(a) Reasonable policies and procedures. A servicer shall maintain policies and procedures that are reasonably designed to achieve the objectives set forth in paragraph (b) of this section.

(b) Objectives.

(1) Accessing and providing timely and accurate information. The policies and procedures required by paragraph (a) of this section shall be reasonably designed to ensure that the servicer can:

 (iii) Provide a borrower with accurate and timely information and documents in response to the borrower's requests for information with respect to the borrower's mortgage loan;

(v) Submit documents or filings required for a foreclosure process, including documents or filings required by a court of competent jurisdiction, that reflect accurate and current information and that comply with applicable law;
(Page 58)

 

Idaho Code § 6-101. Proceedings in foreclosure.
 …(2) The provisions of this section must be construed in order to permit a secured creditor to realize upon collateral for a debt or other obligation agreed upon by the debtor and creditor.
(Page 65)

Idaho Code § 7-601. Contempts Defined.
The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court:…4. Deceit or abuse of the process or proceedings of the court by a party to an action or special proceeding.
(Page 65)

 

Idaho Code § 18-3203. Offering false or forged instrument for record.
Every person who knowingly procures or offers any false or forged instrument to be filed, registered or recorded in any public office within this state, which instrument, if genuine, might be filed, or registered, or recorded under any law of this state, or of the United States, is guilty of a felony.
(Pages 64, 70)

Idaho Code § 18-3601. Forgery Defined.
Every person who, with intent to defraud another, falsely makes, alters, forges or counterfeits, any…contract, promissory note,…or any acceptance or endorsement of any…promissory note…or assignment of any…promissory note for money or other property…; or utters, publishes, passes or attempts to pass, as true and genuine any of the above named false, altered, forged or counterfeited matters, as above specified and described, knowing the same to be false, altered, forged, or counterfeited, with intent to prejudice, damage, or defraud any person; or who, with intent to defraud, alters, corrupts or falsifies any record of any will, codicil, conveyance, or other instrument, the record of which is by law evidence, or any record of any judgment of a court, or the return of any officer to any process of any court, is guilty of forgery.
(Page 70)

 

Idaho Code § 45-1505. Foreclosure Of Trust Deed, When.
The trustee may foreclose a trust deed by advertisement and sale under this act if:

(1)  The trust deed, any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in mortgage records in the counties in which the property described in the deed is situated; and
(Pages 68, 69)

 

Idaho Code § 48-603. Unfair methods and practices.
(17) – Engaging in any act or practice which is otherwise misleading, false, or deceptive to the consumer;
(Page 65)


“There is no question of the general doctrine that fraud vitiates the most solemn contracts, documents, and even judgments.” United States v. Throckmorton, 98 US 61 (Supreme Court 1878)
(Pages 84, 90)

 

“Fraud vitiates everything it touches. It is difficult to define; there is no absolute rule as to what facts constituted [sic] fraud; and the law does not provide one ‘lest knavish ingenuity may avoid it.” Massey-Ferguson, Inc. v. Bent Equipment Company, 283 F.2d 12, 15 (5th Cir. 1960). ‘[T]he law does not define fraud; it needs no definition; it is as old as falsehood and as versable as human ingenuity.’Id” Tusch Enterprises v. Coffin, 13 Idaho 37, 740 P.2d 1022 (1987)
(Pages 57, 91)

 

“Furthermore, tampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.” Hazel-Atlas Co. v. Hartford Co., 322 US 238 at 246 (1944)
(Pages 72, 84, 90, 92)

 

“While an attorney ‘should represent his client with singular loyalty that loyalty obviously does not demand that he act dishonestly or fraudulently; on the contrary his loyalty to the court, as an officer thereof, demands integrity and honest dealing with the court. And when he departs from that standard in the conduct of a case he perpetrates a fraud upon the court’." 7 Moore, supra, at 513 (footnote omitted). Kupferman v. Consolidated Research & Mfg. Corp., 459 F. 2d 1072 at 1078 (2nd Circuit, 1972)
(Pages 85, 90)

 

“A homeowner experiences prejudice or harm when an entity with no interest in the debt forecloses. When a non-debtholder forecloses, a homeowner is harmed because he or she has lost her home to an entity with no legal right to take it. If not for the void assignment, the incorrect entity would not have pursued a wrongful foreclosure. Therefore, the void assignment is the cause in fact of the homeowner's injury and all he or she is required to allege on the element of prejudice. The critical issue is not the plaintiff's ability to pay, but rather whether the defendant's conduct resulted in the plaintiff's harm; i.e., a foreclosure that was wrongful because it was initiated by a person or entity having no legal right to do so; i.e. holding void title. As the Supreme Court stated in Yvanova, ‘the bank or other entity that ordered the foreclosure would not have done so absent the allegedly void assignment. Thus `[t]he identified harm — the foreclosure — can be traced directly to [the foreclosing entity's] exercise of the authority purportedly delegated by the assignment’. (Yvanova, supra, 62 Cal.4th at p. 937.)

There are also strong policy reasons favoring this approach. A contrary rule would lead to a legally untenable situation — i.e., that anyone can foreclose on a homeowner because someone has the right to foreclose…(citation omitted) Moreover, giving homeowners - - who have the most at stake and the most to lose – the ability to challenge improper loan assignments as being absolutely void will provide a proper incentive to lending institutions to employ due diligence to properly document assignments and confirm who currently holds a loan. ‘The consequences of wrongfully evicting someone from their home are too severe to be left unchecked.’”

“(Yvanova, supra, 62 Cal.4th at p. 929, fn. 4 ["Tender has been excused when ... the plaintiff alleges the foreclosure deed is facially void, as arguably is the case when the entity that initiated the sale lacked authority to do so."].)” Sciarratta v. US Bank National Assn., 202 Cal.Rptr.3d 219, 247 Cal. App. 4th 552 at 566 (Cal: Court of Appeal, 4th Appellate Dist., 1st Div. 2016)
(Pages 39, 64, 69, 71, 72)

 

“The burden of proving an assignment falls upon the party asserting rights thereunder (Read v. Buffum, supra, 79 Cal. 77 [21 P. 555, 12 Am.St.Rep. 131]; Ford v. Bushard, 116 Cal. 273 [48 P. 119]; Bovard v. Dickenson, 131 Cal. 162 [63 P. 162]; Nakagawa v. Okamoto, 164 Cal. 718 [130 P. 707]). [8] In an action by an assignee to enforce an assigned right, the evidence must not only be sufficient to establish the fact of assignment when that fact is in issue (Quan Wye v. Chin Lin Hee, 123 Cal. 185 [55 P. 783]) but the measure of sufficiency requires that the evidence of assignment be clear and positive to protect an obligor from any further claim by the primary obligee (Gustafson v. Stockton etc. R. R. Co., 132 Cal. 619 [64 P. 995]).

In Bengel v. Kenney, 126 Cal.App. 735 [14 P.2d 1031], where the plaintiff claimed title under an assignment of a purported assignee of a corporation but the evidence failed to show that the assignment by the corporation was executed by a person having authority to do so, it was held that the evidence failed to show title in the plaintiff by reason of such an assignment. In Brown v. Ball, 123 Cal.App. 758 [12 P.2d 28], it was held that the evidence was insufficient to establish the execution of an assignment where there was no evidence to show that it was executed by the person whose name purported to be signed thereto or that the signer had authority as agent to execute the instrument.” Cockerell v. Title Ins. & Trust Co., 42 Cal. 2d 284 (Cal: Supreme Court 1954)
(Page 69)

 

“It has long been judicial policy in Idaho that controversies be determined and disposed of each on its own particular facts and as substantial justice may require. The exercise of judicial discretion should tend to bring about a judgment on the merits. Perry v. Perkins, 73 Idaho 4, 245 P.2d 405 (1952); Dellwo v. Peterson, 34 Idaho 697, 203 P. 472 (1921). See 5 Am.Jur.2d Appeal and Error § 906.

A ‘determination’ of an action within the meaning of Rule 1 is meant to be a determination of the controversy on the merits – not a termination on a procedural technicality which serves litigants not at all.” Bunn v. Bunn, 99 Idaho 710, 587 P.2d 1245 (1978)
(Page 59)


“the law in Idaho is that an action for relief on the grounds of fraud will not be “deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud” I.C. § 5-218. Hall v. Forsloff, 124 Idaho 771, 864 P. 2d 609 (1993)
(Pages 28, 58, 86)


“It is said that, where it appears that a judgment was taken against appellant through the negligence of an attorney who had been employed by such party, nothing is left to the discretion of the court, and the judgment must be set aside.” Pierce v. Vialpando, 78 Idaho 274, 301 P.2d 1099 (1956)
(Pages 59, 85)

 

"[W]hen a judgment is shown to have been procured by fraud upon the court, no worthwhile interest is served in protecting the judgment." Id. at 653, 218 P.3d at 858 (internal quotation marks omitted). Estate of Adams ex rel. Adams v. Fallini, 132 Nev.Adv.Op. 81, 386 P. 3d 621 at 625 (2016)
(Pages 26, 85, 90)

 

“Because Movants failed to establish possession and an ownership interest in the notes, they are not shown to be the real party in interest, and they lack standing to bring the motions.” In re Wilhelm, 407 B.R. 392, 398 (Bankr. D. Idaho 2009)
(Pages 66)

 

“plaintiff presented no evidence of having possessed the underlying note prior to filing the complaint. If plaintiff did not have the note when it filed the original complaint, it lacked standing to do so, and it could not obtain standing by filing an amended complaint.” Deutsche Bank Nat. v. Mitchell, 422 N.J. Super. 214, 27 A.3d 1229 (2011)
(Pages 65, 66)

 

“In the present case, the court ruled upon the motion for summary judgment without first resolving the factual issue of when the plaintiff took ownership and control of the note and, thus, whether it had subject matter jurisdiction. This court has recently concluded that when the jurisdiction of the court hinges on a factual determination regarding the plaintiff’s status as holder of the note at the time of the commencement of the action, the court must determine the pertinent facts necessary to ascertain whether jurisdiction existed and rule on the issue of standing before addressing the merits of the controversy. Equity One, Inc. v. Shivers, 125 Conn.App. 201, 206, 9 A.3d 379 (2010); see also Deutsche Bank National Trust Co. v. Bialobrzeski, 123 Conn.App. 791, 799-800, 3 A.3d 183 (2010); LaSalle Bank, National Assn. v. Bialobrzeski, 123 Conn.App. 781, 789-90, 3 A.3d 176 (2010). In light of the documents before the court, showing discrepancies as to the date of the transfer of the note, as well as the defendant’s argument that the plaintiff had not demonstrated that it was the holder of the note when this complaint was filed, the court improperly formed a legal conclusion without establishing the factual predicate for the court’s subject matter jurisdiction. Accordingly, we reverse and remand the case to the trial court for a hearing to ascertain the plaintiff’s status as the owner or holder of the subject note at the time the action was commenced, so that the court may properly determine whether it has subject matter jurisdiction.” Park National Bank v. 3333 Main, LLC, 127 Conn.App. 774, 15 A.3d 1150 (App. Ct. 2011)
(Pages 65, 66)

 

“Thus, because it failed to establish an interest in the note or mortgage at the time it filed suit, it had no standing to invoke the jurisdiction of the common pleas court.” Fed. Home Loan Mtge. Corp v. Schwartzwald, 2012-Ohio-5017, 134 Ohio St.3d 13 (2012)
(Pages

 

 “U.S. Bank was required to establish, through admissible evidence, that it held the note and mortgage and so had standing to foreclose the mortgage before it would be entitled to summary judgment in its favor.” BAC Funding Consortium Inc. v. Jean-Jacques, 28 So. 3d 936 (Fla.App. 2010)
(Pages

 

“the plaintiff must prove that it had standing to foreclose when the complaint was filed” McLean v. JP Morgan Chase Bank Natl. Assn., 79 So.3d 170, 173 (Fla.App. 2012).
(Pages

 

“Evidence establishing when Appellee became a person entitled to enforce the note must show Appellee was a person entitled to enforce the note prior to filing its cause of action for foreclosure.” Deutsche Bank Nat. Trust v. Brumbaugh, 2012 OK 3, 270 P.3d 151 (2012)
(Pages 65, 66)

 

“The real party in interest in foreclosure actions is the current holder of the note and mortgage.” Bank of Am., NA v. Miller, 194 Ohio App. 3d 307 (2011)
(Pages

 

Plaintiff must produce original note not copy otherwise maker may face double liability. McKay v. Capital Res. Co., Ltd. 940 S.W.2d 869 (Ark. 1997)
(Pages

 

 “From the maker’s standpoint, therefore, it becomes essential to establish that the person who demands payment of a negotiable note, or to whom payment is made, is the duly qualified holder. Otherwise, the obligor is exposed to the risk of double payment, or at least to the expense of litigation incurred to prevent duplicative satisfaction of the instrument. These risks provide makers with a recognizable interest in demanding proof of chain of title. Consequently, plaintiffs here, as makers of the notes, may properly press defendant to establish its holder status.” In re Kemp, 440 B.R. 624 (Bankr. D. N. J. 2010)
(Pages

 

“foreclosure by the wrong entity does not discharge the homeowner's debt, and leaves them vulnerable to another action on the same note by the true creditor…” Miller v. Homecomings Financial, LLC, 881 F. Supp. 2d 825 (S.D. Tex. 2012)
(Pages

 

Fair

1. Characterized by honesty, impartiality, and candor; just; equitable; disinterested 2. Free of bias or prejudice 4. Unblemished and unaltered 5. Reasonably good in kind, quality, or degree; free from any pronounced defect.
Black’s Law Dictionary 10th Edition

 

 

III. JUDGMENT AMOUNT IS PLAIN ERROR.

 

New Jersey Statute § 52:7-19. Affixation of Name. Each notary public, in addition to subscribing his autograph signature to any jurat upon the administration of any oath or the taking of any acknowledgment or proof, shall affix thereto his name in such a manner and by such means, including, but not limited to, printing, typing, or impressing by seal or mechanical stamp, as will enable the State Treasurer easily to read said name.
(Pages

 

SERVICING STANDARDS

I. FORECLOSURE AND BANKRUPTCY INFORMATION AND DOCUMENTATION.

A. Standards for Documents Used in Foreclosure and Bankruptcy Proceedings.

1. Servicer shall ensure that factual assertions made in pleadings (complaint, counterclaim, cross-claim, answer, or similar pleadings), bankruptcy proofs of claim (including any facts provided by Servicer or based on information provided by Servicer that are included in any attachment and submitted to establish the truth of such facts) (“POC”), Declarations, affidavits, and sworn statements filed by or on behalf of Servicer in judicial foreclosures or bankruptcy proceedings and notices of default, notices of sale, and similar notices submitted by or on behalf of Servicer in non-judicial foreclosures are accurate and complete and are supported by competent and reliable evidence. Before a loan is referred to non-judicial foreclosure, Servicer shall ensure that such evidence (including all documents and records pertaining to the borrower’s loan status and loan information) has been reviewed to substantiate the borrower’s default and the right to foreclose. Servicer shall retain a copy of any and all documents and records which substantiate the initiation of a foreclosure action, including copies of all documents related to non-judicial foreclosure actions. (emphasis added)

3…Affiants shall confirm that they have reviewed competent and reliable evidence to substantiate the borrower’s default and the right to foreclose, including borrower’s loan status and required loan ownership information.

12. Servicer shall not rely on an affidavit of indebtedness or similar affidavit, sworn statement, or Declaration filed in a pending pre-judgment judicial foreclosure or bankruptcy proceeding which (a) was required to be based on the affiant’s review and personal knowledge of its accuracy but was not, (b) was not, when so required, properly notarized, or (c) contained materially inaccurate information in order to obtain a judgment of foreclosure, order of sale, relief from the automatic stay, or other relief in bankruptcy. In pending cases in which such affidavits, sworn statements, or Declarations may have been filed, Servicer shall, at Servicer’s expense, take appropriate action, consistent with state and federal law and court procedure, to substitute such affidavits with new affidavits and provide appropriate written notice to the borrower or borrower’s counsel. In pending post-judgment, pre-sale cases in judicial foreclosure proceedings in which an affidavit or sworn statement was filed which was required to be based on the affiant’s review and personal knowledge of its accuracy but may not have been, or that may not have, when so required, been properly notarized, and such affidavit or sworn statement has not been refiled, Servicer, unless prohibited by state or local law or court rule, will provide written notice to borrower at borrower’s address of record or borrower’s counsel prior to proceeding with a foreclosure sale or eviction proceeding. Servicing Standards, Exhibit A, Settlement Agreement and Consent Order, PHH Mortgage Corporation
(Pages

 

“This settlement demonstrates a core responsibility of state regulators to protect consumers from unlawful business practices,” said Gavin Gee, director of the Idaho Department of Finance. “With this settlement, we are saying that states will not tolerate mortgage servicers that harm consumers by failing to process mortgage payments according to the law. As part of this settlement, states are requiring corrective actions so that PHH’s future mortgage servicing activities ensure timely and accurate processing of loan payments.”
Idaho Department of Finance – January 3, 2018, News Release
(Pages

 

In performing notarial acts, Notaries must always give precedence to the requirements of law over any other consideration – even the dictates or expectations of an employer, client, friend or family member. Law in all jurisdictions requires the document signer to appear in person before the Notary at the time of notarization…Notaries must perform their official duties with an appropriate degree of respect and seriousness for the indispensable role they play in our legal system as a trusted, impartial and official third party. www.nationalnotary.org
(Pages

 

“On the other hand, if not properly authenticated, loan payment history printouts and other evidence of the amount due on a loan are inadmissible hearsay. For example, in Glarum, the court reversed summary judgment for the bank because the bank's sole witness testified from a bank printout without first establishing the hearsay exception for business records. There, the witness/affiant was a "specialist" for the loan servicer and his affidavit stated that he obtained the amount of indebtedness from "his company's computer system." Id. at 782. However, the specialist "did not know who, how, or when the data entries were made into [the servicer's] computer system" and "could not state if the records were made in the regular course of business." Id. The specialist had even less knowledge about the business practices of the prior loan servicer, the apparent source of the data upon which his own company relied to open the file. Accordingly, both the witness' testimony and the affidavit containing the data for the amount owing were inadmissible hearsay, unqualified for the business records exception under section 90.803(6)(a). Because there was no other competent evidence to prove the amount due and owing, summary judgment was reversed.” Burdeshaw v. Bank of New York Mellon, 148 So.3d 819 (Fla. Dist. Court of Appeals, 1st Dist. 2014)
(Pages

 

“A signed notarization is the ultimate assurance upon which the whole world is entitled to rely that the proper person signed a document on the stated day and place…a false notarization is a crime and undermines the integrity of our institutions upon which all must rely upon the faithful fulfillment of the notary’s oath.” Klem v. Washington Mut. Bank, 295 P.3d 1179, 176 Wash. 2d 771 (2013)
(Pages

 

Business-Records Exception
A hearsay exception allowing business records (such as reports or memoranda) to be admitted into evidence if they were prepared in the ordinary course of business. If there is good reason to doubt a record’s reliability (e.g., the record was prepared in anticipation of litigation), the exception will not apply.

Black’s Law Dictionary 10th Edition

 

Personal Knowledge
Knowledge gained through firsthand observation or experience, as distinguished from a belief based on what someone else has said.
Black’s Law Dictionary 10th Edition

 

 

IV. NO DEFAULT

 

New Jersey Statute § 52:7-19. Affixation of Name. Each notary public, in addition to subscribing his autograph signature to any jurat upon the administration of any oath or the taking of any acknowledgment or proof, shall affix thereto his name in such a manner and by such means, including, but not limited to, printing, typing, or impressing by seal or mechanical stamp, as will enable the State Treasurer easily to read said name.
(Pages

15 United States Code § 1692g. Validation of debts     

(a) Notice of debt; contents

Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
(Pages

12 United States Code § 2605(e)(2)(B)

after conducting an investigation, provide the borrower with a written explanation or clarification…
(Pages

12 Code of Federal Regulations § 1024.35.

(e) Response to notice of error -
(1) Investigation and response requirements -
(i) In general.

Except as provided in paragraphs (f) and (g) of this section, a servicer must respond to a notice of error by either:
(A) Correcting the error or errors identified by the borrower and providing the borrower with a written notification of the correction, the effective date of the correction, and contact information, including a telephone number, for further assistance; or
(B) Conducting a reasonable investigation and providing the borrower with a written notification that includes a statement that the servicer has determined that no error occurred, a statement of the reason or reasons for this determination, a statement of the borrower's right to request documents relied upon by the servicer in reaching its determination, information regarding how the borrower can request such documents, and contact information, including a telephone number, for further assistance.
(Pages

 

“Neither Borrower nor Lender may commence, join, or be joined to any judicial action (as either an individual litigant or the member of a class) that arises from the other party’s actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action.”

Section 20, Alleged Mortgage

 

 “Lender shall give notice to Borrower prior to acceleration…”

Section 22, Alleged Mortgage

Reprobata pecunia leberat solventem.
Money refused releases the debtor.

 

Prevention of Performance
Prevention doctrine is a common-law principle of contract law which says that a contracting party has an implied duty not to do anything that prevents the other party from performing its obligation. A party who prevents performance of a contract may not complain of such nonperformance.
www.definitions.uslegal.com

 

V. INDEPENDENT ACTION

 

Idaho Rules of Civil Procedure 60. Relief From a Judgment or Order.
(d) Other Powers to Grant Relief
This rule does not limit a court’s power to:
    (1)   entertain an independent action to relieve a party from a judgment, order or proceeding;
    (3) set aside a judgment for fraud on the court.

(Pages


“There is no question of the general doctrine that fraud vitiates the most solemn contracts, documents, and even judgments.” United States v. Throckmorton, 98 US 61 (Supreme Court 1878)
(Pages 84, 90)

 

“Equitable relief against fraudulent judgments is not of statutory creation. It is a judicially devised remedy fashioned to relieve hardships which, from time to time, arise from a hard and fast adherence to another court-made rule, the general rule that judgments should not be disturbed after the term of their entry has expired. Created to avert the evils of archaic rigidity, this equitable procedure has always been characterized by flexibility which enables it to meet new situations which demand equitable intervention, and to accord all the relief necessary to correct the particular injustices involved in these situations.” Hazel-Atlas Co. v. Hartford Co., 322 US 238 (1944)
(Pages 72, 84, 90, 92)

 

“Professor Moore submits that the concept should "embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." Id. at 515 (footnote omitted)…While an attorney ‘should represent his client with singular loyalty that loyalty obviously does not demand that he act dishonestly or fraudulently; on the contrary his loyalty to the court, as an officer thereof, demands integrity and honest dealing with the court. And when he departs from that standard in the conduct of a case he perpetrates a fraud upon the court’." 7 Moore, supra, at 513 (footnote omitted). Kupferman v. Consolidated Research & Mfg. Corp., 459 F. 2d 1072 at 1078 (2nd Circuit, 1972)
(Pages 85, 90)

 

“the law in Idaho is that an action for relief on the grounds of fraud will not be "deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud." I.C. § 5218.” Hall v. Forsloff, 124 Idaho 771, 864 P. 2d 609 (1993)
(Pages 28, 58, 86)

 

“It is said that, were it appears that a judgment was taken against appellant through the negligence of an attorney who had been employed by such party, nothing is left to the discretion of the court, and the judgment must be set aside.” Pierce v. Vialpando, 78 Idaho 274, 301, P .2d 1099 (1956)
(Pages 59, 85)

 

"[W]hen a judgment is shown to have been procured by fraud upon the court, no worthwhile interest is served in protecting the judgment." Id. at 653, 218 P.3d at 858 (internal quotation marks omitted). Estate of Adams ex rel. Adams v. Fallini, 132 Nev.Adv.Op. 81, 386 P. 3d 621 at 625 (2016)
(Pages 26, 85, 90)

 

“[T]he law favors discovery and correction of corruption of the judicial process even more than it requires an end to lawsuits.”

Lockwood v. Bowles, 46 F.R.D. 625, 634 (D.D.C. 1969)
(Pages 25, 85)

 

“The requisite fraud on the court occurs where ‘it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense’." Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989). from Cox v. Burke, 706 So. 2d 43 at 46 (Fla: Dist. Court of Appeals, 5th Dist. 1998)
(Page 85)

 

This argument completely ignores the inherent power of a court to inquire into the integrity of its own judgments. Such a judgment implies the prior existence of a justiciable case or controversy between opposing litigants; but when the controversy has been terminated by a judgment, its freedom from fraud may always be the subject of further judicial inquiry; and the general rule that courts do not set aside their judgments after the term at which they were rendered has no application. The matter is not one of merely private concern subject to the action or inaction of the litigants, but is one of vast public importance, so that it becomes immaterial that the injured party may have been derelict in bringing the fault to the court's attention.

In regards to fraud on the court, “Indeed these facts not only justify the inquiry but impose upon us the duty to make it, even if no party to the original cause should be willing to cooperate, to the end that the records of the court might be purged of fraud, if any should be found to exist.” Root Refining Co. v. Universal Oil Products Co., 169 F. 2d 514 (Circuit Court of Appeals, 3rd Circuit 1948)
(Pages 37, 80, 85)

 

 

VI. RES JUDICATA

 

“The plea of res judicata is an affirmative defense and the burden rests on the party asserting it to establish all of the essential elements thereof by a preponderance of the evidence.” Foster v. City of St. Anthony, 122 Idaho 883, 841 P. 2d 413 at 420 (1992)
(Page 91)

 

“no person is privileged to deceive another to the other's detriment.” Kawai Farms, Inc. v. Longstreet, 121 Idaho 610, 826 P. 2d 1322 (1992)
(Pages 27, 57)

 

“[T]he law favors discovery and correction of corruption of the judicial process even more than it requires an end to lawsuits.” Lockwood v. Bowles, 46 F.R.D. 625, 634 (D.D.C. 1969)
(Pages 25, 85)

 

“Equitable relief against fraudulent judgments is not of statutory creation. It is a judicially devised remedy fashioned to relieve hardships which, from time to time, arise from a hard and fast adherence to another court-made rule, the general rule that judgments should not be disturbed after the term of their entry has expired. Created to avert the evils of archaic rigidity, this equitable procedure has always been characterized by flexibility which enables it to meet new situations which demand equitable intervention, and to accord all the relief necessary to correct the particular injustices involved in these situations.” Hazel-Atlas Co. v. Hartford Co., 322 US 238 at 248 (1944)
(Pages 72, 84, 90, 92)

 

 “Five factors are required in order for issue preclusion to bar the relitigation of an issue determined in a prior proceeding: (1) the party against whom the earlier decision was asserted had a full and fair opportunity to litigate the issue decided in the earlier case; (2) the issue decided in the prior litigation was identical to the issue presented in the present action; (3) the issue sought to be precluded was actually decided in the prior litigation; (4) there was a final judgment on the merits in the prior litigation; and (5) the party against whom the issue is asserted was a party or in privity with a party to the litigation……. For claim preclusion to bar a subsequent action there are three requirements: (1) same parties; (2) same claim; and (3) final judgment.” Ticor Title Co. v. Stanion, 144 Idaho 119, 157 P. 3d 613 at 618 (2007)
(Pages 59, 60, 91)

 

In reference to this next authority, which is from a Federal District Court in Maine, it must be observed that Maine law takes a very similarly broad approach in regards to res judicata (claim preclusion) as Idaho law.

 

Pursuant to Maine law, claim preclusion bars a subsequent lawsuit if: (1) the same parties or their privies are involved in both actions; (2) a valid final judgment was entered in the prior action; and (3) the matters presented for decision in the second action were, or might have been, litigated in the first action. (citation omitted)

Maine courts apply a transactional test to determine the identity of multiple causes of action (citation omitted) Specifically courts examine “the aggregate of connected operative facts that can be handled together conveniently for purposes of trial to determine if [the causes of action] were founded upon the same transaction, arose out of the same nucleus of operative facts, and sought redress for essentially the same basic wrong” (citation omitted). They also consider whether the operative facts “are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties expectations or business understanding or usage.” (citation omitted)

Of course, courts have long abided the “unremarkable principle” that “[c]laims arising subsequent to a prior action…are not barred by res judicata regardless of whether they are premised on facts representing a continuance of the same ‘course of conduct.’” Storey v. Celio Holdings, L.L.C., 347 F.3d 370, 383 (2d Cir 2003); see also Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322, 328. 75 S.Ct. 865, 99 L.Ed. 1122, (1955) (earlier judgment “cannot be given the effect of extinguishing claims which did not even then exist and which could not possibly have been sued upon in the previous case.”) Darney v. Dragon Products Co., LLC, 592 F.Supp.2d 180 (D. Me 2009)
(Pages 57, 86, 92)

 

 

VII. CONSTITUTIONAL RIGHTS

           

United States Constitution
No person shall…be deprived of life, liberty or property without due process of law.
Fifth Amendment of the United States Constitution

 

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved…
Seventh Amendment of the United States Constitution

 

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Fourteenth Amendment of the United States Constitution

 

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding… all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution…
Article 6


Idaho Constitution
All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.

Idaho Constitution Article 1 Section 1

 

The exercise and enjoyment of religious faith and worship shall be forever guaranteed; and no person shall be denied any civil or political right, privilege, or capacity on account of his religious opinions;…

Idaho Constitution Article 1 Section 4

 

The right of trial by jury shall remain inviolate;
Idaho Constitution Article 1 Section 7

 

No person shall…be deprived of life, liberty or property without due process of law.

Idaho Constitution Article 1 Section 13

 

The distinctions between actions at law and suits in equity, and the forms of all such actions and suits, are hereby prohibited; and there shall be in this state but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a civil action;
Idaho Constitution Article 5 Section 1

 

The state of Idaho is an inseparable part of the American Union, and the Constitution of the United States is the supreme law of the land.
Idaho Constitution Article 1 Section 3

 

 

VIII. DEFINITIONS

 

The following definitions should be applied when these words, terms, or concepts appear in this document. Words have been underlined in certain uses to remind the reader to incorporate this definition into the context and concept being presented.

 

Evidence
“Best Evidence Rule” is that highest available degree of proof must be produced. Cheadle v. Bardwell, 95 Mont. 299, 26 P.2d 336.


The best evidence of a fact is the testimony of a person who knows. State v. Normandale, 154 La. 523, 97 So. 798, 799 (mother could testify to the date of her daughter's birth, as against an objection that the baptismal certificate or the registry was the best evidence).
Black’s Law Dictionary 4th Edition

 

Evidence of the highest quality available
Black’s Law Dictionary 10th Edition

Chain of Title
Successive conveyances, or other forms of alienation, affecting a particular parcel of land, arranged consecutively, from the government or original source of title down to the present holder.
Black’s Law Dictionary 4th Edition

Chain of Title
1. The ownership history of a piece of land, from its first owner to the present one. 2. The ownership history of commercial paper, traceable through the indorsements. For the holder to have good title, every prior negotiation must have been proper. If a necessary indorsement is missing or forged, the chain of title is broken and no later transferee can become a holder.
Black’s Law Dictionary 10th Edition

 

Cheat
 n. Swindling; defrauding. "Deceitful practices in defrauding or endeavoring to defraud another of his known right, by some willful device, contrary to the plain rules of common honesty." Hawk.P.C. b. 2, c. 23, § 1. "The fraudulent obtaining the property of another by any deceitful and illegal practice or token (short of felony) which affects or may affect the public."
Steph.Crim. Law, 93.
Black’s Law Dictionary 4th Edition

 

Conditions Precedent

In a contract, an event which must take place before a party to a contract must perform or do their part.
www.legal-dictionary.thefreedictionary.com/condition-precedent


Condition Precedent

An act or event, other than a lapse of time, that must exist or occur before a duty to perform something promised arises. If the condition does not occur and is not excused, the promised performances need not be rendered.

Black’s Law Dictionary 10th Edition

…it is one which is to be performed before some right dependent thereon accrues, or some act dependent thereon is performed.

Black’s Law Dictionary 4th Edition

 

Crime Against Humanity
A brutal crime that is not an isolated incident but that involves large and systematic actions, often cloaked with official authority, and that shocks the conscience of humankind; an inhumane act such as persecution on political, racial, or religious grounds, regardless of whether it is permitted by the domestic law of the country where perpetrated.
Black’s Law Dictionary 10th Edition


Defective Title
With respect to negotiable paper within Negotiable Instruments Law, the title of a person who obtains instrument or any signature thereto by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith or under such circumstances as amount to fraud. Stevens v. Pierce, 79 Oki. 290, 193 P. 417, 18 A.L.R. 7; (fraud) German-American Nat. Bank v. Kelley, 183 Iowa, 269, 166 N.W. 1053; Commercial Security Co. v. Jack, 29 N.D. 67, 150 N.W. 460, 461.
Black’s Law Dictionary 4th Edition

A title that cannot legally convey the property to which it applies, usu. because of some conflicting claim to that property. – Also termed bad title.
Black’s Law Dictionary 10th Edition

 

Deprivation
In American law. A taking away; confiscation; as the deprivation of a constitutional right. Thus a taking of property without due process of law; Sundlun v. Zoning Board of Review of City of Pawtucket, 50 R.I. 108, 145 A. 451, 454; or of liberty. Lynch v. City of Muskogee, D.C.Okl., 47 F.Supp. 589, 592.
Black’s Law Dictionary 4th Edition

 

Due Process Of Law
 "Due process of law in each particular case means such an exercise of the powers of the government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs." Cooley, Const. Lim. 441.
They then mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the enforcement and protection of private rights.
Due process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law.
"Law of the land," "due course of law," and "due process of law" are synonymous.
But "judicial process" and "judicial proceedings" are not necessarily synonymous with "due process."
The essential elements of "due process of law" are notice and opportunity to be heard and to defend in orderly proceeding adapted to nature of case, and the guarantee or due process requires that every man have protection of day in court and benefit of general law.
Daniel Webster defined this phrase to mean a law which hears before it condemns, which proceeds on inquiry and renders judgment only after trial.
Black’s Law Dictionary 4th Edition

 

Ejectment

The essential allegations in an action for ejectment are that (1) the plaintiff has title to the land, (2) the plaintiff has been wrongfully dispossessed or ousted, and (3) the plaintiff has suffered damages.

Black’s Law Dictionary 10th Edition

 

Ejectment, remedies.
The name of an action which lies for the recovery of the possession of real

property, and of damages for the unlawful detention. In its nature it is entirely different from a real action.

2 Term Rep; 696, 700. See 17 S. &R. 187, and, authorities cited.

     5.-3. The title of the party having a right of entry maybe in fee- simple, fee-tail, or for life or years; and if it be the best title to the property the plaintiff will succeed. The plaintiff must recover on the strength. of his title, and not on the weakness or deficiency of that of the defendant.

Addis. Rep. 390; 2 Serg. & Rawle, 65; 3 Serg. & Rawle, 288; 4 Burr. 2487; 1 East, R. 246;Run. Eject. 15; 5 T. R. 110.

     6.-4. The injury sustained must in fact or in point of law have amounted to an ouster or dispossession of the lessor of the plaintiff, or of the plaintiff himself, where the fictions have been abolished; for if there be no ouster, or the defendant be not in possession at the time of bringing the action, the plaintiff must fail. 7 T. R. 327; 1 B. & P. 573; 2 Caines' R. 335.

A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.


Encumbrance
A claim or liability that is attached to property or some other right and that may lessen its value, such as a lien or mortgage; any property right that is not an ownership interest. – Also spelled incumbrance.
‘Encumbrance’ means a right, other than an ownership interest, in real property. The term includes mortgages and other liens on real property. UCC § 9-102(a)(32)
Black’s Law Dictionary 10th Edition


Fair

1. Characterized by honesty, impartiality, and candor; just; equitable; disinterested 2. Free of bias or prejudice 4. Unblemished and unaltered 5. Reasonably good in kind, quality, or degree; free from any pronounced defect.
Black’s Law Dictionary 10th Edition

 

First Lien
One which takes priority or precedence over all other charges or incumbrances upon the same piece of property, and which must be satisfied before such other charges are entitled to participate in the proceeds of its sale.
Black’s Law Dictionary 4th Edition

 

Full

Abundantly provided, sufficient in quantity or degree, complete, entire, and detailed. Having no open space. Ample; perfect; mature; not wanting in any essential quality.
Black’s Law Dictionary 4th Edition

 

Hate Crime
A felony or misdemeanor motivated by the perpetrator’s prejudice, usu. An intense bigotry, on the basis of a victim’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability, or sexual orientation.
Black’s Law Dictionary 10th Edition


Holder
Someone who has legal possession of a negotiable instrument and is entitled to receive payments on it.
Black’s Law Dictionary 10th Edition

Injury

1. The violation of another’s legal right, for which the law provides a remedy; a wrong or injustice.  2. Scots law. Anything said or done in breach of duty not to do it, if harm results to another in person, character, or property.

Some authorities distinguish harm from injury, holding that while harm denotes any personal loss or detriment, injury involves an actionable invasion of a legally protected interest.

Black’s Law Dictionary 10th Edition

 

Injury to Reputation

A diminution in any manner or degree of the esteem, goodwill, or confidence that people place in a person, firm, company, etc.

Black’s Law Dictionary 10th Edition

 

Irreparable Injury

An injury that cannot be adequately measured or compensated by money and is therefore often considered remediable by injunction.

Black’s Law Dictionary 10th Edition

 

Justice
1. The fair treatment of people. 2. The quality of being fair or reasonable. 3. The legal system by which people and their causes are judged; esp., the system used to punish people who have committed crimes. 4. The fair and proper administration of laws.
Black’s Law Dictionary 10th Edition

 

Law of the Case
The decision, judgment, opinion or rulings on former appeal or writ of error become "law of the case." The doctrine has reference to decisions on legal questions and principles of law announced. (citations omitted) and does not embrace questions of fact or decisions on questions of fact.
Black’s Law Dictionary 4th Edition


Legal Injury

Violation of a legal right.

Black’s Law Dictionary 10th Edition

 

Legal Maxim
A maxim is ‘a sure foundation or ground of art, and a conclusion of reason, because a maxim is of the same worthiness and most certain authority as something which is completely proved to everyone, so sure and uncontrollable as that they ought not to be questioned.”
Selected Writing of Sir Edward Coke from I Do Solemnly Swear: The Moral Obligations of Legal Officials by Steve Sheppard. Cambridge University Press

 

Malicious Injury

An injury resulting from a willful act committed with knowledge that it is likely to injure another or with reckless disregard of the consequences.

Black’s Law Dictionary 10th Edition


Maxim of Equity

Equity will not suffer a wrong to be without a remedy.
Equity requires clean hands.
Black’s Law Dictionary 10th Edition

 

Mitigation-of-Damages Doctrine

The principle inducing a plaintiff, after an injury or breach of contract, to make reasonable efforts to alleviate the effects of the injury or breach.

Black’s Law Dictionary 10th Edition

 

Negligence
The omission to do something which a reasonable man, guided by those ordinary

considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.

Black’s Law Dictionary 4th Edition

 

Permanent Injury

A completed wrong whose consequences cannot be remedied for an indefinite period.

Black’s Law Dictionary 10th Edition

 

Plain Error
An error that is so obvious and prejudicial that an appellate court should address it despite the parties’ failure to raise a proper objection at trial. A plain error is often said to be so obvious and substantial that failure to correct it would infringe a party’s due-process rights and damage the integrity of the judicial process.
Black’s Law Dictionary 10th Edition


Prejudice
A forejudgment; bias; preconceived opinion. A leaning towards one side of a cause for some reason other than a conviction of its justice. Tegeler v. State, 130 P. 1164, 1167, 9 Okl.Cr. 138; Taylor v. F. W. Woolworth Co., 146 Kan. 841, 73 P.2d 1102, 1103.
Black’s Law Dictionary 4th Edition


Prejudice - Damage or detriment to one’s legal rights or claims.
Black’s Law Dictionary 10th Edition

Prejudicial Error/Reversible Error
An error that affects a party’s substantive rights or the case’s outcome, and thus is grounds for reversal if the party properly objected at trial.
Black’s Law Dictionary 10th Edition

 

Rule of Law
A legal principle, of general application, sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition. Called a "rule," because in doubtful or unforeseen cases it is a guide or norm for their decision. Toullier, tit. prel. no. 17.
Black’s Law Dictionary 4th Edition

 

Substantial Performance
Exists where there has been no willful departure from the terms of the contract, and no omission in essential points, and the contract has been honestly and faithfully performed in its material and substantial particulars, and the only variance from the strict and literal performance consists of technical or unimportant omissions or defects. Cotherman v. Oriental Oil Co., Tex.Civ.App., 272 S.W. 616, 619; Brown v. Aguilar, 202 Cal. 143, 259 P. 735, 737; Cramer v. Esswein, 220 App.Div. 10, 220 N.Y.S. 634; Connell v. Higgins, 170 Cal. 541, 150 P. 769, 774. Performance except as to unsubstantial omissions with compensation therefor. Cassino v. Yacevich, 261 App.Div. 685, 27 N.Y.S. 2d 95, 97; 99. Equitable doctrine of "substantial performance", protects against forfeiture, for technical inadvertence or trivial variations or omissions in performance. Sgarlat v. Griffith, 349 Pa. 42, 36 A.2d 330, 332.
Black’s Law Dictionary 4th Edition

 

Void Ab Initio
Null from the beginning, as from the first moment when a contract is entered into. A contract is void ab initio if it seriously offends law or public policy, in contrast to a contract that is merely voidable at the election of one party to the contract.
Black’s Law Dictionary 10th Edition

 

Void Judgment
One which has no legal force or effect, invalidity of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally. Reynolds v. Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087, 1092. One which, from its inception is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind parties or support a right, of no legal force and effect whatever, and incapable of confirmation, ratification, or enforcement in any manner or to any degree. Ex parte Myers, 121 Neb. 56, 236 N.W. 143, 144. One that has merely semblance without some essential elements, as want of jurisdiction or failure to serve process or have party in court. Wellons v. Lassiter, 200 N.C. 474, 157 S.E. 434,

436.
Black’s Law Dictionary 4th Edition

STANDARD OF REVIEW

 

Truth, facts and evidence must be considered when a dispute exists as to whether a complainer has any lawful rights. This action is before this Court because irreconcilable conflicts and disputes exist regarding who the rightful owner of our property is, and whether we have committed any act or inaction that permits the law to take our property rights from us and transfer them to PHH Mortgage Services. The Idaho judicial system gains all authority from the rule of law, which is clearly set forth by the United States and Idaho Constitutions; statutory federal and state laws; common laws; and, for the purpose of reference and guidance, precedents and renderings established in prior cases. Rule of man is not lawful in the United States of America. History has taught us it is the doctrine of tyranny and weapon of dictators. Thus, when facts exist that render the rule of law unable to differentiate between contradictions, whether truths or falsehoods, the trier of fact (i.e. a group of our peers) is to be summoned to hear the disputes and make a just and fair determination. The free society’s standard of review calls for due process, equal access to justice, and a full and fair contest on the true merits of the case. This Standard of Review incorporates all authorities included in this document and our pleadings in their entirety. The Court should construe all arguments, current and past, with consideration to the fraud perpetrated and the abuse of discretion exhibited, whether through lack of knowledge or prejudicial bias, so as to render to every man according to his deeds.

 

The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and his capacity through reason for enlightened self-government. Law so grounded makes justice possible, for only through such law does the dignity of the individual attain respect and protection. Without it, individual rights become subject to unrestrained power, respect for law is destroyed, and rational self-government is impossible.
Preamble to ‘Code of Professional Responsibility With amendments to February 24, 1970’
Black’s Law Dictionary 4th Edition

 

Rule of Law
A legal principle, of general application, sanctioned by the recognition of authorities, and usually expressed in the form of a maxim or logical proposition. Called a "rule," because in doubtful or unforeseen cases it is a guide or norm for their decision. Toullier, tit. prel. no. 17.
Black’s Law Dictionary 4th Edition

 

Idaho Code. § 73-116. Common Law in Force. “The common law of England, so far as it is not repugnant to, or inconsistent with, the constitution or laws of the United States, in all cases not provided for in these compiled laws, is the rule of decision in all courts of this state.”

The state of Idaho is an inseparable part of the American Union, and the Constitution of the United States is the supreme law of the land.
Idaho Constitution Article 1 Section 3

“[T]he law favors discovery and correction of corruption of the judicial process even more than it requires an end to lawsuits.” Lockwood v. Bowles, 46 F.R.D. 625, 634 (D.D.C. 1969)

"[W]hen a judgment is shown to have been procured by fraud upon the court, no worthwhile interest is served in protecting the judgment." Id. at 653, 218 P.3d at 858 (internal quotation marks omitted). Estate of Adams ex rel. Adams v. Fallini, 132 Nev.Adv.Op. 81, 386 P. 3d 621 at 625 (2016)

 

When considering a motion for reconsideration under Rule 11(a)(2), the district court should take into account any new facts, law, or information presented by the moving party that bear on the correctness of the district court's interlocutory order. Coeur d'Alene Mining Co. v. First Nat'l Bank of N. Idaho, 118 Idaho 812, 823, 800 P.2d 1026, 1037 (1990). However, new evidence is not required and the moving party can re-argue the same issues in addition to new arguments. Arregui v. Gallegos-Main, 291 P.3d 1000 (2012)

 

When considering whether the evidence shows a genuine issue of material fact, the trial court must liberally construe the facts, and draw all reasonable inferences in favor of the nonmoving party. Mitchell v. Bingham Mem'l Hosp., 130 Idaho 420, 422, 942 P.2d 544, 546 (1997).

The district court has no discretion on whether to entertain a motion for reconsideration pursuant to Idaho Rule of Civil Procedure 11(a)(2)(B). On a motion for reconsideration, the court must consider any new admissible evidence or authority bearing on the correctness of an interlocutory order. . See PHH Mortg. Servs. Corp. v. Perreira, 146 Idaho 631, 635, 200 P.3d 1180, 1184 (2009) (citing Coeur d'Alene Mining Co. v. First Nat'l Bank of N. Idaho, 118 Idaho 812, 823, 800 P.2d 1026, 1037 (1990)). However, a motion for reconsideration need not be supported by any new evidence or authority. When deciding the motion for reconsideration, the district court must apply the same standard of review that the court applied when deciding the original order that is being reconsidered. In other words, if the original order was a matter within the trial court's discretion, then so is the decision to grant or deny the motion for reconsideration. If the original order was governed by a different standard, then that standard applies to the motion for reconsideration. Likewise, when reviewing a trial court's decision to grant or deny a motion for reconsideration, this Court utilizes the same standard of review used by the lower court in deciding the motion for reconsideration. If the decision was within the trial court's discretion, we apply an abuse of discretion standard. On the other hand, when reviewing the grant or denial of a motion for reconsideration following the grant of summary judgment, this Court must determine whether the evidence presented a genuine issue of material fact to defeat summary judgment. In this case, the trial court was asked to reconsider the granting of a motion for summary judgment, so the summary judgment standard applied both to the trial court deciding the motion for reconsideration and to our review of that decision on appeal. Fragnella v. Petrovich, 153 Idaho 266, 281 P. 3d 103 (2012)

"In the exercise of this power, a court, while it still retains jurisdiction over the cause in which the order was made, may, for sufficient cause shown, amend, correct, resettle, modify, or vacate, as the case may be, an order previously made and entered on motion in the progress of the cause or proceeding; and a statute empowering a court to modify its orders should be liberally construed."

60 C.J.S., Motions and Orders, § 62

 

A rehearing or reconsideration in the trial court usually involves new or additional facts, and a more comprehensive presentation of both law and fact. Indeed, the chief virtue of a reconsideration is to obtain a full and complete presentation of all available facts, so that the truth may be ascertained, and justice done, as nearly as may be.

…every court has power "To amend and control its process and orders, so as to make them conformable to law and justice."

"A renewal motion may be filed with the permission of the court. It involves a question of practice, and the decision of the first motion is not necessarily res adjudicata. As was held in Belmont v. Erie Ry. Co., 52 Barb. (N.Y.) 637: `It is well settled that whatever can be done upon motion to the court may, by the court, upon further motion by either party, be altered, modified or wholly undone.'

In 1 Freeman on Judgments (5th Ed.) p. 432, it is said that where the court is deceived or is laboring under a mistake or misapprehension as to the state of the record or as to the existence of extrinsic facts upon which its action is predicated, it has inherent power to vacate a judgment which would not otherwise have been rendered." JI Case Company v. McDonald, 280 P. 2d 1070 (1955)

 

“this Court has held that before a claim of fraud can be dismissed on a motion for summary judgment based on res judicata, a court must first answer the question of whether there is more than one conclusion as to whether the party alleging the fraud has exercised due diligence in discovering the fraud. Kawai Farms v. Longstreet, 121 Idaho 610, 826 P.2d 1322 (1992). If the court finds that there exists more than one conclusion that such party exercised due diligence, then a material question of fact exists precluding a granting of summary judgment. Id.”… “In Kawai Farms, relying on our prior decision in Gerlach v. Schultz, 72 Idaho 507, 244 P.2d 1095 (1952), we held that an individual's reliance on another's fraudulent representations can affect the question as to whether a proper investigation was conducted, and therefore can raise more than one conclusion as to whether the fraud could have been discovered through reasonable diligence.”  Hall v. Forsloff, 124 Idaho 771, 864 P. 2d 609 (1993).


“In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the Supreme Court explained… that “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. 2505.


In T.W. Elec. Serv. Inc., v Pacific Elec. Contractor Ass’n, 809 F.2d 626 (9th Cir. 1987), we explained that, “at summary judgment, the judge must view the evidence in the light most favorable to the nonmoving party: if direct evidence produced by the moving party conflicts with direct evidence produced by the nonmoving party, the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact.” Id. at 63031 (citations omitted).” Leslie v. Grupo ICA, 198 F .3d 1152 (9th Cir. 1999).

 

“The law of the case doctrine is not a constitutional mandate nor a limitation on the power of a court.

There are limited circumstances which may justify reconsideration of an issue which was [an] issue decided in a prior appeal: … (2) the prior ruling was clearly erroneous and would result in a manifest injustice if allowed to stand;” State v. Jefferson, 31 SW 3d 558 - Tenn: Supreme Court (2000)

 

“Depending on the nature of the case or issue and on the level or levels of the courts or courts involved, a court may have discretion to reopen a previously resolved question under one or more of the following circumstances:

(1) the first decision was clearly erroneous;

(2) an intervening change in the law has occurred;

(3) the evidence on remand is substantially different;

(4) other changed circumstances exist;

(5) a manifest injustice would otherwise result.”

Thomas v. Bible, 983 F. 2d 152 (1993)

 

“The Supreme Court said in England v. Hospital of Good Samaritan, 14 Cal.2d 791, 795 [97 P.2d 813]:

"The doctrine of the law of the case is recognized as a harsh one (2 Cal.Jur. 947) and the modern view is that it should not be adhered to when the application of it results in a manifestly unjust decision. (United Dredging Co. v. Industrial Acc. Com., 208Cal. 705 [284 P. 922].) However, it is generally followed in this state. But a court is not absolutely precluded by the law of the case from reconsidering questions decided upon a former appeal. Procedure and not jurisdiction is involved. Where there are exceptional circumstances, a court which is looking to a just determination of the rights of the parties to the litigation and not merely to rules of practice, may and should decide the case without regard to what has gone before. (Messenger v. Anderson, 225 U.S. 436 [32 S.Ct. 739, 56 L.Ed 1152]; Seagraves v. Wallace, 69 F.2d 163; McGovern v. Eckhart, 200 Wis. 64 [227 N.W. 300, 67 A.L.R. 1381].)"

Also in Gore v. Bingaman, 20 Cal.2d 118, 122, 123 [124 P.2d 17], it is said:

"It is true that the law of the case doctrine is a procedural rule which is generally followed, not because the court is without power to reconsider a former determination, but because the orderly processes of judicial procedure require an end to litigation. In the absence of exceptional circumstances of hardship and injustice the need for attributing finality to considered judicial determinations compels adherence to the previous decision. But the rule should never be made the instrument of injustice. Thus, where the controlling rules of law have been altered or clarified in the interval between the first and second appeal and adherence to the previous decision would result in defeating a just cause, it has been held that the court will not hesitate to reconsider its prior determination.

Particularly is the rule inapplicable where the decision lays down a principle of law for future guidance which is unsound.

Respondent cites cases to the contrary, and urges that there has been no change in the facts and no intervening decision justifying reconsideration. Also it urges that not justice but the determination of controversies is the primary consideration of policy behind the organization of courts, and that this litigation should be brought to an end by a refusal to reconsider the legal question determined in our former opinion. We are not impressed with this argument and believe that we should reexamine the question of law involved in our former opinion in light of the facts now before us and the subsequent decisions referred to hereinafter.” Standard Oil Co. v. Johnson, 56 Cal. App. 2d 411 (1942) (emphasis added)

Quie communi lege derogant stricteinterpretantur.
[Statutes] which derogate from the common law are strictly interpreted.

Quie contra rationem juris introducta sunt, non debent trahi in consequentiam. 12 Coke, 75.
Things introduced contrary to the reason of law ought not to be drawn into a precedent.

Quie legi communi derogant non sunt trahenda in exemplum.
Things derogatory to the common law are not to be drawn into precedent.

 

 

ARGUMENT

 

According to Black’s Law Dictionary, an argument attempts to persuade by setting forth reasons why something is true or untrue, right or wrong, better or worse. The following argument documents lies, false claims, misrepresentations, contradictions, broken laws, and violated regulations that create genuine issues of material fact, meritorious disputes, dangerous precedents, and substantial injuries. The truths of this matter can, want, and have pled for the opportunity to speak. Justice calls for the fair and proper administration of laws; sensible conclusions and proper judgments determined through close examination, inference and thought; and renderings that resist being or becoming collusive products of bias or prejudice. The length of our argument is representative of years of abusive litigation and the culmination of extensive research and review into the relevant issues before this Court. We request the Court grant our argument the breadth and depth of respect, consideration, and attention expected from one entrusted with finding fair and just resolutions for disputes and bringing appropriate relief to injuries.

 

ARGUMENT OVERVIEW

 

I. The Sheriff’s Sale Was Unlawfully Conducted And Produced Unlawful Results That Cannot Be Lawfully Enforced. 29

II. New Evidence Of Assignment And Ownership Fraud, Illegalities And Impossibilities Affirm Our Current Claim Of Fraud. 53

III. New Evidence Establishes The Judgment Amount Is Inaccurate, And Based On Unlawful, Contradictory, And Fraudulent Evidence. 72

IV. New Evidence Of No Default Renders Judgments For Foreclosure And Enforcement Efforts Moot And Without Authority. 79

V. This Court Has The Power To Entertain An Independent Action To Relieve A Party From A Judgment, Order, Or Proceeding, And To Set Aside Judgment For Fraud On The Court 83

VI. Manifest Injustice And Clearly Erroneous Findings Require Relief From Orders, Judgments And Malicious Persecution. 87

 

I. THE SHERIFF’S SALE WAS UNLAWFULLY CONDUCTED AND PRODUCED UNLAWFUL RESULTS THAT CANNOT BE LAWFULLY ENFORCED.

The Sheriff’s sale itself and the actions leading up to the Sheriff’s sale were unlawful and show cause for the sale to be vacated for meritorious reasons that cannot be justly ignored or judicially silenced. (Phillips, Id, American Digest 1658). The sale documents rely upon and reference a judgment that was no longer in effect and was in fact void. The Notice of Levy was untimely and issued too late to be enforced. Genworth Financial Mortgage Insurance’s credit bid was accepted in violation of the Order of Sale and despite our objections at the sale. The Sheriff’s Sale as conducted was not an event a law-abiding citizen could or should participate in. The Writ of Execution is not valid or regular on its face. The Sheriff’s Deed and Certificate of Sale were issued to the wrong entity in violation of the void Order of Sale. The sale is void because only the creditor could credit bid, a credit bid from a non-lender was accepted, and JPMorgan Chase’s new claims to be the rightful lender at the time of the sale corroborate our disputes of PHH Mortgage Services’ claims of ownership. The Sheriff’s Deed cannot grant PHH Mortgage Services any valid title. Our property consists of two separate parcels and not selling them separately at the sale is not in accordance with Idaho code and prejudices our ability to protect and preserve our equity. Additionally, no evidence was presented to the Court for the Court to find the sale price to be adequate and the sales price was in fact grossly inadequate. In fact, PHH Mortgage Services provided no appraisal or market analysis or testimony of any kind to the Court; whereas, we disputed the fraudulent nature of the account record calculations used to determine the sale amount with evidence that disputes the sale price being even remotely adequate or accurate. Because the Court’s opinion that the sale brought an adequate price is not based on any facts or evidence, and this price is in dispute, it is, in and of itself, an error and an abuse of discretion. (See point I below. The sale price was grossly inadequate.) Our dedicated efforts to stay the sale were procedurally denied as we were judicially punished for following previous instructions of the Courts. After the sale, we did not delay in seeking to vacate the foreclosure sale.
Our objections to the sale were timely and are well documented. For the sake of argument, even if we had been untimely, PHH Mortgage Services has shown no prejudice, nor can they, because they have been aware of these issues since the time of the sale or even before. In addition, we are maintaining our property and preventing the rightful owner from experiencing injury due to decreased value that would surely occur had the property been vacated and not maintained. Whereas, grave miscarriages of justice are creating severe prejudice, damages, and injuries for us with this Court’s newest order that our family home and ranch be unlawfully seized without cause or right based on these unlawful proceedings; that we be wrongfully dispossessed when we are the only true and rightful owners of the property; and that our persons, property, reputation, and freedoms be harmed and forever scarred based on false claims and disputed facts by PHH Mortgage Services.
In its recent order, the Court erred in its finding we have not challenged the Sheriff’s sale, the sale’s price, or all other issues surrounding the Sheriff’s Sale and alleged rights arising from it in a timely manner. For the sake of brevity, we will not detail all time, efforts, and resources expended in saving our ranch through the years. However, our actions are well documented and irrefutably demonstrate we have not slept on any rights in saving this property since this assault first began. “Success is not measured by what you accomplish, but by the opposition you have encountered, and the courage with which you have maintained the struggle against overwhelming odds.” Orison Swett Marden, Entrepreneur, Founder of Success Magazine
The Court stated, Grossly inadequate sale price. Defendants did not argue grossly inadequate sale price before this motion to reconsider. As noted in the Summary Judgment Opinion, they are asking the Court to set aside the Sheriff’s sale, an action which must occur promptly after the sale. Equitable Life Assur. Soc. of the U.S. v. Clapier, 824 P.2d 131, 134, 121 Idaho 200, 203 (Idaho App., 1991), Gaskill v. Neal, 293 P.2d 957, 960, 77 Idaho 428, 433 (Idaho 1956). The Sheriff’s Sale was held nearly two years ago, August 28th, 2017. The redemption period has expired. Defendants still have not offered any explanation of why they did not challenge the sale price earlier…The property should have been sold as two parcels. For the reasons outlined directly above, the Court declines to consider this issue…The writ expired before the levy. Again, this is a challenge of the sale which is not timely.
It is extremely prejudicial and clearly erroneous for this District Court to refuse to address issues we began raising months before the sale ever occurred, and have continually raised until the present, to now say we are untimely in presenting these issues. This is untrue and grossly misrepresentative of the facts. Further, this Court has failed to identify or provide authority to establish a definition or standard for untimely.
This Court cited two cases in support of his position that our challenges to the sale were untimely – Equitable Life and Gaskill. In Equitable Life, the Clapiers’ provided no reason for their delay and had not raised the issue previously. In Gaskill the district and supreme courts granted the motion to vacate because the delay was justified, and stated, “there is no universal rule fixing the period of time within which the application may and must be made.”

 

“The motion to set aside the sale is addressed to the sound discretion of the court but, this discretion is not unlimited. In exercising its discretion, the court must base its decision on the pertinent principles of law or equity applicable to the facts and circumstances of the case.” Wiesel v. Ashcraft, 26 Ariz. App. 490, 549 P.2d 585, 588-89 (1976).
Equitable Life Assur. Soc. v. Clapier, 121 Idaho 200, 824 P. 2d 131 (1991)

“Generally, a motion or other similar application to set aside an execution sale must be made promptly and without unreasonable delay, but there is no universal rule fixing the period of time within which the application may and must be made.” 33 C.J.S., Executions, § 238 b, p. 497.
Gaskill v. Neal, 293 P. 2d 957 (1956)

“Moreover, the question of reasonableness is ordinarily a question of fact to be resolved by the trier of the fact after both parties have had an opportunity to address this issue.” Thiel v. Stradley, 118 Idaho 86, 88, 794 P.2d 1142, 1144 (1990) (dealing with the timeliness of a motion under I.R.C.P. 60(b)(4) to set aside a "void" judgment).”
Equitable Life Assur. Soc. v. Clapier, 121 Idaho 200, 824 P. 2d 131 (1991)


At the time the sale occurred, our case was in appeal before the Idaho Supreme Court. The Idaho Supreme Court had instructed us in our first appeal that it was inappropriate to reach back down to the District Court when an appeal was in progress, so we were forced to attempt to address the issues with the Idaho Supreme Court and wait until the appeal was ruled upon.

 

We have held that “[a]n I.R.C.P. 60(b) motion may be used to obtain relief from a final judgment, however, it should not be used as a substitute for a timely appeal.” (citation omitted) Nickerson 1

However, we were denied justice or access to justice because the Idaho Supreme Court would not address any issues regarding the sale since it had not first gone before the District Court.

“This Court will not consider issues raised for the first time on appeal.” Watkins Co. v. Estate of Storms, 161 Idaho 683, 685, 390 P.3d 409, 411 (2017) (quoting Clear Springs Foods, Inc. v. Spackman, 150 Idaho 790, 812, 252 P.3d 71, 93 (2011)). Because these issues are being raised for the first time on appeal, this Court will not consider them.” Nickerson 2

This was in contradiction of the Supreme Court’s previous admonition and created extreme prejudice in our ability to stop the issuance of the Sheriff’s Deed. The Idaho Supreme Court issued their opinion on August 1, 2018, the Sheriff’s Deed was issued on August 29, 2018, and PHH filed this action for ejectment on November 7, 2018. We have not waited to address this issue. Rather, we challenged the sale before, during and after it occurred. Regardless, once the appeal was over, PHH filed this case for ejectment. At that time, it was compulsory for us to raise the issue of setting aside the sale as a defense to PHH’s enforcement of it.

Prior to the sale, we raised the issue regarding our right to have the parcels sold separately and established that the value of just one parcel would cover the entire debt before the sale occurred.

 

“Further this property is a two parcel property of 50+ acres that is listed as two separate parcels in the County Tax Records. We purchased and were given a wet note Warranty Deed for the two parcels which remains in our possession on the entire 50+ acreage ranch. We only agreed to provide one parcel to Coldwell Banker as a security interest when the original loan was negotiated. However, as the record shows, Coldwell Banker agreed verbally and in writing to be bound by all over 40 acre restrictions associated with a mortgage as part of their agreement with us. Therefore, if this Court fails to vacate judgment, its order must be amended to specify only the one parcel is to be or can be sold to satisfy the judgment. As a matter of record, I.C. § 11-304 states when the sale is of real property consisting of several known lots or parcels they must be sold separately and in the order the judgment debtor determines and the sheriff must follow their directions. Thus, even if both parcels were lawfully able to be sold, additional directions must be provided to allow us to direct the order of sale. The equity in our one parcel more than covers the entire judgment amounts awarded to PHH and Chase…Additionally, moneys beyond the satisfaction of judgment represent equity in the property that lawfully belongs to us, and must be returned to us upon sale of the property as its rightful owner per I.C. §§ 6-102 and 11-301…It is unconscionable that after paying years of payments toward the satisfaction of a fraudulently crafted loan; making significant investments and improvements to the property which substantially increased its property value well beyond the original purchase price and loan amount, as has been demonstrated with certified assessments and appraisals; that PHH and Chase could be allowed through prevention of performance, abusive debt collection, false claims, and forged assignments to now secure a judgment that is greater than the original loan amount.
Motion to Vacate or Amend Order of Sale and Decree of Foreclosure, pg. 2-3, filed April 27, 2017

 

“The preliminary issues on appeal are as follows:
b. Whether it is lawful or just for the District Court to ignore the Nickerson’ request and rights (contractual and I.C. § 11-304), to sell a two parcel property one parcel at a time and to be allowed to direct the order of the sale.”
Notice of Appeal, pg. 2, filed May 25, 2017

“Among other issues, the determination of the appeal directly affects the sale itself, how it can be sold, the order of sale, who maintains possession upon sale, who can participate in the sale, and how the moneys from the sale are to be dispersed.”
Memorandum in Support of Emergency Motion to Cancel Foreclosure Sale and Stay Execution Pending Appeal, pg. 16, filed August 21, 2017

 

At the sale, we raised additional issues such as we were not served the Writ of Execution, it was prejudicial and illegal for Genworth Financial Mortgage Insurance to be allowed to credit bid, the Writ of Execution was expired, the sale price was not adequate, the sale was untimely, not affording us time to get a stay was prejudicial, and other such issues. These issues had not occurred before this time.

 

“I attended the Sheriff Sale of our property. Our family verbally communicated our objections to the proceedings to the Sheriff. I personally heard and watched the Sheriff read the order to sell our property and then he continued to auction it off to Genworth via a credit bid of $333,000. Our family during the auction interrupted, challenging the validity of the amount and bidder and Sheriff Goetz continued and finalized the auction in favor of Genworth.”
The Testimony of Amanda Nickerson in Regards to PHH Stealing Our Ranch, June 11, 2019

 

“I personally heard members of my family argue that the Judgment against our property only allowed PHH to credit bid. I personally heard the Sheriff go ahead and accept a bid from Genworth Mortgage, and announce Genworth as the winning bidder. I also personally heard my father inform the Sheriff the writ he was executing under was expired.”
Affidavit of Chad Nickerson, June 11, 2019

 

After the sale, we raised these issues with the Supreme Court as we were in the middle of the appeal when the sale took place and we had been previously instructed it was not proper to reach back to the district court during an appeal.

 

Issues raised by us after the sale,

 

“Additionally, the alleged sale was executed with an expired Writ of Execution; violated our rights to direct the order of sale (I.C. § 11-304); unlawfully sold the two-parcel property as one parcel; allowed an entity without personal rights or interest in the property to credit bid in violation of the expired order of sale; prejudiced our ability to realize a fair market value for the property by allowing an outsider to credit bid below the judgment amount while restricting other potential buyers from submitting a credit bid; is not lawfully enforceable since we are the rightful owners and holders of the actual deed on this property, and have never, at any time, by action or inaction, given our consent for the property to be sold; our deeded rights have never been lawfully encumbered by lien to PHH Mortgage and PHH has no lawful right to take possession of or enforce foreclosure upon our property; the judgment amount stated by the Sheriff was determined by Summary Judgment with a District Court Judge unlawfully acting as a trier of fact to determine ownership and judgment amounts; the judgment amount is in dispute and was under appeal at the time of the alleged sale due to conflicting amounts presented by PHH and JP Morgan Chase; the judgment amount was rendered with conflicting default amounts and contradictory claims of chain of title; delays created by fighting prejudices and injustices caused solely by the lies and misrepresentations of opposing counsel and the admitted deception and negligence of our former attorney have severely inflated the judgment amount and cohesively penalized us for exercising our contractual rights; a falsified appraisal was submitted to significantly lower the minimum credit bid and strip us of substantial equity above the judgment amount; and other such issues that cannot be lawfully ignored.”
Appellant’s Reply Brief, pg. 7-8, 2018

 

After the Supreme Court appeal, PHH Mortgage Services initiated the current action, and we immediately exercised our right and duty to challenge the sale in good faith, with due diligence, and through every lawful avenue we knew or know to pursue.

In contradiction to this Court’s statement, Defendants did not argue grossly inadequate sale price before this motion to reconsider, during oral argument we argued the insufficiency of the sale price and asked the Court for leave to amend the pleadings “to evidence up” this issue as another reason to set aside the sale.

 

“I, I would like to um, bring up one issue as far as, um prejudice in regarding what the Idaho Supreme Court has said as far as insufficiency or deficiency or prejudice against the uh on the purchase price. Your honor, we, we presented evidence to the Supreme Court in uh, in the underlying cases of an appraisal where the appraised property value was over $900,000 according to the appraiser. So if that issue is one that uh, we would like to amend our pleadings in order to, to evidence up that issues of the, of another reason to set aside a sale.”
Charles Nickerson, Oral Argument, June 25, 2019 Hearing

“Further, the sale was conducted with an expired writ, and based on the false affidavits from PHH regarding ownership, sale amount, forged assignment, false claim of default and other specific elements of fraud to be discussed at trial.”
Donna Nickerson, Oral Argument, June 25, 2019 Hearing


The points below provide detailed arguments surrounding the issues regarding the sale. Any defects or incomplete arguments are the direct result of our abusers being allowed to avert and quash discovery and regulatory record production requirements since the onset of this assault against our persons, property and financial portfolio. We are innocent of all charges against us and it is more probable than not that further discovery will demonstrate beyond a shadow of a doubt all claims we have made are true and accurate and all claims made by PHH Mortgage Services are false and fraudulent. This includes, but is not limited to, their claims, documentation, and representations of debt, ownership, default, or right to act.

 

A. The sale documents rely upon and reference a judgment that was no longer in effect and was in fact void:

· Order of Sale

· Writ of Execution

· Affidavit and Application In Support of Issuance of: (1) Writ of Execution on Judgment for Foreclosure; and (2) Order of Sale on Foreclosure

· Sheriff’s Deed

· Certificate of Sale

 

The Order of Sale and all associated documents reference and fatally rely upon the first amended judgment issued and filed in June 2014 for authority and foundation to act. Per I.R.C.P. 54(a)(2), the June 2014, judgment was void, no longer valid, and unenforceable on April 13, 2017, when the Order of Sale and all associated documents were issued. A second amended judgment issued by Clearwater County District Judge Carl B. Kerrick in January 2015, and recorded in the county records in February 2015, as Instrument # 225890, did not specifically retain or incorporate any parts of the first amended judgment and therefore replaced it in its entirety. Any similarity of wording or action is irrelevant, moot, and only serves to corroborate the intent of the second amended judgment to replace, not augment, the previous amended judgment issued by Judge Michael Griffin. Therefore, per I.R.C.P. 54(a)(2), it replaces it in its entirety.

Further, both the amended judgment and second amended judgment fail to comply with I.R.C.P 54(a)(1), in that they contain other wording between the words “JUDGMENT IS ENTERED AS FOLLOWS…” and the caption. Thus, they are not binding or enforceable. (See Exhibits 1-3, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order) Therefore, because the Order of Sale and Writ of Execution reference and rely upon a judgment that was no longer valid, the Order of Sale is void ab initio, and thus, the Sheriff’s sale is also void.

 

Void Ab Initio
Null from the beginning, as from the first moment when a contract is entered into. A contract is void ab initio if it seriously offends law or public policy, in contrast to a contract that is merely voidable at the election of one party to the contract.
Black’s Law Dictionary 10th Edition

 

In addition, the Idaho Sheriff’s Manual specifically grants authority for the Sheriff to execute all processes and orders that are regular on their face. The Writ of Execution is not regular on its face per I.C. § 11-102. The judgment referenced is not regular on its face and was voided by a later judgment per I.R.C.P. § 54(a)(1). Because these orders were not regular on their face, Judge Gregory FitzMaurice and Clearwater County Attorney Clayne Tyler, allegedly acting on behalf of Clearwater County, ordered Sheriff Chris Goetz to violate his authority to act. Therefore, any execution is void, not binding, and not enforceable.

 

Idaho Rules of Civil Procedure 54. Judgments; Costs.

(a)   Definition – Form – Amendments.

 

(1)   Definition and Form of Judgment. "Judgment" as used in these rules means a separate document entitled "Judgment" or "Decree". A judgment must state the relief to which a party is entitled on one or more claims for relief in the action, which may include dismissal with or without prejudice. A judgment must not contain a recital of pleadings, the report of a master, the record of prior proceedings, the court's legal reasoning, findings of fact, or conclusions of law. A judgment is final if either it is a partial judgment that has been certified as final pursuant to subsection (b)(1) of this rule or judgment has been entered on all claims for relief, except costs and fees, asserted by or against all parties in the action. A judgment or partial judgment must begin with the words “JUDGMENT IS ENTERED AS FOLLOWS: . . ,” and it must not contain any other wording between those words and the caption. A judgment may include any findings of fact or conclusions of law expressly required by statute, rule, or regulation.

 

(2)   Amended Judgments. If the court orders an amendment to a judgment, the amendment will be effective only after the court enters an amended judgment setting forth all of the terms of the new judgment, including those terms of the prior judgment that remain in effect.

 

PHH has fatally failed to adhere to state, federal and regulatory lending, servicing, and foreclosure laws in foreclosing on our property located at 3165 Neff Road, Orofino, Idaho. Root Refining, Id. Clearwater County has willfully and intentionally ignored and allowed PHH Mortgage Services and JPMorgan Chase to blatantly disregard and violate regulations and laws in place to protect innocent homeowners like us and preserve stable property values like ours from being exploited, victimized and abused. This negligent oversight has revoked substantial rights for us, reduced property values county wide, and desensitized all realization of watchdog advantage or effectiveness in Clearwater County. To reiterate, the Order of Sale and Writ of Execution used to conduct the Sheriff’s Sale relied on a void and invalid judgment for authority. This prejudiced us by reinforcing to an entity with known servicing deficiency habits and predatorial lending addictions that accuracy and details are unimportant, and that oversight and regulation is non-existent in Clearwater County, Idaho. This places Idaho property ownership and homeland security at great peril and risk of grave miscarriages of justice. Repeatedly ignoring and refusing to consider critical evidence and documents that dismiss all of PHH Mortgage Services and JPMorgan Chase’s claims due to procedural technicalities alone, communicates mortgage terrorists can anticipate complete immunity in Clearwater County. Such selective rigidity and adherence to the rules transmits the message that legal chicanery, procedural manipulation, and unlawful practices are not only acceptable for banksters in Clearwater County, Idaho, but any efforts or resistance by homeowners will be quashed by the local elected or appointed officials. Clearly, holding us, or any homeowner, to a stricter standard than the bank is prejudicial and demonstrates extreme bias. If the bank is granted leniency to steal and cheat us out of our ranch and equity, equal access to justice demands leniency be granted to save our ranch. As such, previous decisions denying our motions and evidence on procedural technicalities should be reversed. In addition, the Order of Sale and Writ of Execution are void and invalid due to the obsolete judgment they are based upon, and the law requires the entire sale process to be re-done so we may avoid all the prejudice and damages detailed below.

The ramification of the defects of this matter and its impact on our family and financial portfolio is not a small petty $10 fine. Losing a one-of-a-kind ranch, customized home, substantial equity (million-dollar asset), significant improvements and investments, seventeen years of vested memories, chosen place of ministry, faith in America, our freedom, good name, financial reputation, and possibly our lives, creates far reaching and permanent damage and loss for us and generations to come. Foreclosing on a million-dollar property and ordering the Nickerson Family to defy a court order and become judicial prisoners, if they are to honor and obey the rule of law that grants their American citizenship, is not a proceeding that can be taken lightly or litigated sloppily. “The consequences of wrongfully evicting someone from their home are too severe to be left unchecked.”  Sciarratta, Id.

B. The Notice of Levy was untimely and issued too late to be enforced.

The Notice of Levy was issued on July 11, 2017, after the writ issued on April 25, 2017, had expired and was required by law to be returned. I.C. § 11-103. Idaho Sheriff’s Civil Manual, 3.1.10. See Exhibit 11, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order. Since the sale was held with an expired writ, the sale was conducted without authority, the sale did not and could not lawfully occur, no redemption period has occurred, and this post foreclosure action is moot. Therefore, since the writ was not returned in the time required by law, the sale was void and not lawful and it must be vacated. The law must be upheld. It plainly states the writ’s return cannot exceed 60 days.

 

Idaho Code § 11-103. Time When Returnable.
(a) Except as provided in subsection (b) of this section, the execution may be made returnable at any time not less than ten (10) nor more than sixty (60) days after its receipt by the sheriff, to the clerk with whom the judgment roll is filed.

 

“If the statutory language is unambiguous, the legislatures clearly expressed intent must be given effect…Thus, the plain meaning of a statute will prevail…” Kootenai Hosp. Dist. v. Bonner Cnty. Bd. of Comm'rs, 149 Idaho 290, 233 P.3d 1212 (2010).

 

 “When construing the language contained in a statute, this Court will construe statutory terms according to their plain, obvious, and rational meanings.” Sweitzer v. Dean, 118 Idaho 568, 798 P.2d 27 (1990)

 

“The Court must enforce the statute that congress enacted”, Obduskey v. McCarthy & Holthus LLP, 139 S. Ct. 1029 (Supreme Court, 2019)

 

We were substantially and notoriously prejudiced and damaged by the sale being conducted based on an expired writ and late levy. All authority granted Idaho Courts is restricted by the superior rights granted in the United States Constitution and regionally limited to using the power vested in Idaho courts to ensure equal access to justice for those appearing before them. The mission of timely, fair and impartial case resolution rejects the ability of an Idaho court to selectively ignore legislative guidelines and intentions, revoke our Constitutional rights to due process, and deny us equal access to justice. It was unjust, unfair, unlawful, and a manifest and grave miscarriage of justice to allow an expired writ to order a sale. The expiration of the writ rendered it void and created a procedural delay that could be considered divine intervention. Ignoring this defect in the documents that grant authority for the Sheriff to act, was beyond the jurisdiction or authority of Clearwater County District Court Judge Gregory FitzMaurice and County Attorney Clayne Tyler. These officials overreached their authority and acted as trier of facts in violation of Idaho law and rule of civil procedure. This prejudiced our ability to 1) stop a foreclosure initiated by someone who did not own our property or any debt against us, 2) properly avert and prevent the execution of an order of sale based on a voided judgment, 3) prohibit a non-lender from credit bidding; 4) restrain our property from being unlawfully sold at a grotesquely inadequate sales price; 5) allow us opportunity to receive a timely answer from the Idaho Supreme Court on our Emergency Motion to Stay and request additional justice or executive relief accordingly; 6) provide adequate time to properly advertise the sale so as to increase the bidding pool and drive up the purchase price to recoup some of our equity; 7) make arrangements to possibly purchase the property to further preserve our rights while continuing this battle to its ethical, moral and logical natural conclusion; and 8) other such fair and just opportunities to remedy the atrocities suffered by this malicious foreclosure attempt, and our meritorious stand against it.

C. Genworth Financial Mortgage Insurance’s credit bid was accepted in violation of the Order of Sale and despite our objections at the sale.

Even though as demonstrated above the Order of Sale is void and unenforceable, the execution of the Order of Sale and Decree of Foreclosure was not proper or lawfully processed as it states, Plaintiff shall be permitted to credit bid at such sale any amount up to and including the total amount of the Judgment as set forth herein. As the record and evidence in this case irrefutably demonstrates, Clearwater County Sheriff Chris Goetz entered and accepted a credit bid by Genworth Financial Mortgage Insurance, not PHH Mortgage Services. We challenged Genworth Financial Mortgage Insurance’s credit bid during the sale, but the Sheriff told us Genworth Financial Mortgage Insurance was allowed to credit bid and awarded Genworth Financial Mortgage Insurance the winning bid. Whether PHH Mortgage Services gained ownership through Genworth Financial Mortgage Insurance’s unlawful credit bid at the Sheriff’s sale is a disputed issue of material fact. If presented to a jury, PHH Mortgage Services will most certainly lose their ejectment action because PHH Mortgage Services obtained the Certificate of Sale by a Sheriff breaking the law and wrongfully conducting a sale. PHH Mortgage Services’ claim for ejectment rests upon the critical issue of material fact whether PHH Mortgage Services legally obtained a Certificate of Sale, and whether the sale conducted can be lawfully enforced. For this Court to appoint itself the trier of fact to determine disputes of evidentiary facts surrounding this action, and whether and how these factual issues damage and injure us and our property ownership, is prejudicial to our case, our access to justice, and constitutes a stretch of discretion and abusive overreach.

Further, the value in controversy exceeds twenty dollars and our right of trial by jury must be preserved per the Bill of Rights and the Idaho Constitution. This ejectment action has been brought before the Court based on common law and must be tried by a jury. All judgments in the underlying foreclosure action were determined by Judge Michael Griffin by summary judgment. Evidence of prejudice and bias plagued the underlying foreclosure action and new evidence demonstrates both summary judgments were rendered in fraud. This ejectment action requires a jury trial, and we request summary judgment in favor of PHH Mortgage Services be reversed.

 

“Courts, however, in guarding the constitutional rights to a jury trial, have repeatedly held that where the suit should have been, and in substance is, an action for the recovery of the possession of land, the right of a defendant to a jury cannot be defeated by the mere device of bringing the action in an equitable form.” Thomson v. Thomson, 7 Cal. 2d 671(1936)

 

A credit bid by Genworth is unlawful, not binding, and unenforceable by lawful means.

Allowing Genworth Financial Mortgage Insurance to credit bid when they could only cash bid created extreme prejudice toward other potential bidders and to our ability to purchase the property at the sale. Whether or not we or another bidder made or attempted to make a bid is irrelevant in determining fairness of sale and equal opportunity to bid. If this Court disagrees, then this disputed issue must be determined by a jury. We and other potential bidders were deterred by the Court’s order and notification that stated only PHH Mortgage Services could credit bid. We should have been allowed to credit bid if someone besides the creditor was allowed to credit bid. Further, we were required to bid the full judgment amount – it is prejudicial to allow someone else besides the creditor to credit bid less than that amount and not us. Genworth Financial Mortgage Insurance was permitted to credit bid $333,000; whereas, we were required to open the bid at over $443,000. This represents $110,000 of unjust advantage for PHH Mortgage Services, and in this case Genworth Financial Mortgage Insurance, in the bidding alone. This also negates all moneys tendered toward a loan initiated in 2002, the significant improvements made to the property, and the certified increase in property value owned by us, not the bank. PHH Mortgage Services was never an owner of our property and has invested no moneys, resources, time, life, or other investments toward increasing its value. All truth, facts, and evidence irrefutably prove PHH Mortgage Services has never acquired lawful beneficial interest in our property and was not the secured creditor when they began the foreclosure action or when they secured judgment. In addition, Genworth Financial Mortgage Insurance placed the only bid at the sale. If Genworth Financial Mortgage Insurance had not bid, and no other bids were proffered, the sale would have been vacated. This would have preserved our property ownership with a stay of execution and allowed us to escape the damages caused by the substantial contractual and regulatory rights lost in this wrongful foreclosure sale. The Court overlooking this issue severely prejudices our claims as seven eyewitness affidavits and videotape testimony confirm Genworth Financial Mortgage Insurance was awarded the credit bid at the foreclosure sale. The continuance of the sale would have allowed us to preserve and secure our property rights instead of being significantly and substantially damaged. Therefore, it was unlawful to accept a credit bid from Genworth Financial Mortgage Insurance, and thus, the sale must be vacated.

PHH Mortgage Services is barred from complaining or being a complainer.

Further, regarding the bidding at the sale, PHH did not exercise their alleged right to credit bid, and therefore waived any rights to complain. PHH did not bid at all, nor did they have a representative present at the sale. If PHH had been present at the sale, they could have produced a bid, preserved their exclusive right to bid, or bid higher than Genworth Financial Mortgage Insurance. Their absence and failure to establish representation waives their right to complain against us or any loss at the sale. However, since they were not present, they are estopped from curing their failure to purchase the property at the sale by using the court to order a sheriff to commit an illegal act. The Certificate of Sale and Sheriff’s Deed lie and tell not the truth. They constitute an illegal act and are not lawfully enforceable.

Therefore, PHH waived their alleged right to bid or to complain about the conduct of the sale. We requested a stay from the Idaho Supreme Court that was not answered until the Friday before the Monday sale, which prejudiced our ability to prevent or participate in the sale. Further, our personal involvement and direct risks associated with fighting Montana wildfires created insurmountable obstacles in our intervention of the sale.

D. The Sheriff’s sale as conducted was not an event a law-abiding citizen could or should participate in.

The rule of law prohibited our property from being sold at the August 28, 2017 sale and forbade any law-abiding citizen from purchasing it at the unlawfully held sale. The sale was an illegal gathering (assembled to conduct an unlawful act), conducted unlawfully (non-lender credit bid, property sold as one parcel, violated laws and regulations, etc.), based on unlawful orders (expired writ, void judgment, Writ of Execution and Order of Sale not regular on their face), and unlawful proceedings (disputes were procedurally quashed so summary judgments could be awarded) by Sheriff Chris Goetz acting unlawfully and against his conscience (only has authority to execute and enforce lawful orders that are regular on their face). The illegalities and inconsistencies in fact and law prohibited Sheriff Chris Goetz from proceeding with the sale, but threats of personal liability caused him to execute the sale anyway. It is beyond the jurisdiction and authority of Idaho Courts to compel or enjoin us or the Sheriff to commit an unlawful act. Ordering us to bid at an unlawfully conducted sale based on illegalities, inconsistencies, and false claims, or suffer damages, injuries, and liability by the outcome of such a sale, is unlawful, unjust, in violation of our Constitutional rights, and outside the authority of any Idaho Court to morally or judicially order or enforce. Extreme prejudice and demonstrated bias created the defective documents relied upon to hold the sale. It is firmly established PHH Mortgage Services cannot gain right from an illegal act.

E. The Writ of Execution is not valid or regular on its face.

Idaho Code § 11-102 Form of Writ. The writ of execution must be issued in the name of the people, sealed with the seal of the court, and subscribed by the clerk, and be directed to the sheriff, and it must intelligently refer to the judgment, stating the court, the county where the judgment roll is filed…

The Writ of Execution On Judgment Foreclosure is not issued in the name of the people, is not sealed with the seal of the court or subscribed by the clerk. Therefore, the writ is in violation of this statute and is void. (See Writ of Execution attached to Exhibit 11) Kootenai Hosp. Dist. v. Bonner Cnty. Bd. Of Comm’rs, Sweitzer v. Dean, Obduskey v. McCarthy and Holthus LLP. As detailed above, it is extremely prejudicial for the court to pick and choose which laws must be followed.

In addition, the writ specifically commands the sheriff to take all required actions, provide all required notices and comply with all procedures required under applicable law. As demonstrated in this document the execution/sale process violated, at a minimum, I.C. § 1-1616, I.C. § 11-102, I.C. § 11-103, I.C. § 11-304, and I.R.C.P. 54(a). It is therefore prejudicial for the court to command the execution and sale process comply with all applicable law and then ignore or choose to overlook multiple violations of those laws that severely prejudice our substantive rights.

Furthermore, as detailed above, this writ commands the sheriff to execute a void, unenforceable judgment. It was also executed after it had expired and lost all authority to be acted upon. Quie ab initio non valent, ex post facto convalescere non possum - Things invalid from the beginning cannot be made valid by subsequent act.

F. The Sheriff’s Deed and Certificate of Sale were issued to the wrong entity and in violation of the void Order of Sale.

At the foreclosure sale, Sheriff Goetz publicly accepted a credit bid from Genworth Financial Mortgage Insurance. However, he then privately issued a Certificate of Sale and Sheriff’s Deed which stated the property was struck off and sold to PHH Mortgage (not PHH Mortgage Services). That did not happen. Rather, the property was struck off and sold to Genworth Financial Mortgage Insurance. Therefore, these documents were deceptive to the World At Large and ruinous to the integrity of the county land records. As a matter of fact, and of law, and as shown by admitted evidence, these documents are false, inaccurate, and not valid on their face. In addition, by issuing the Certificate of Sale and Sheriff’s Deed to PHH Mortgage instead of Genworth Financial Mortgage Insurance, the Court’s Order of Sale was violated, and the Sheriff acted without and outside the authority of an order. The order states, the Sheriff of Clearwater County, Idaho be directed to execute a certificate of sale and, subsequently, a deed to the purchaser of the Subject Property. The Certificate of Sale and Sheriff’s deed were not issued to Genworth Financial Mortgage Insurance the purchaser of the property, and PHH Mortgage Services has admitted no agreements existed between PHH Mortgage Services and Genworth Financial Mortgage Insurance regarding the purchase of the property. As such, these documents are not valid and are invalid because they were issued in violation of the Court’s order. Therefore, for the reasons stated above, both the Certificate of Sale and Sheriff’s Deed are void. Thus, the sale is void, must be vacated, and is not enforceable by rule of law.

Issuing the Certificate of Sale and Sheriff’s Deed to PHH attempts to hide the facts and truth of what actually and factually happened at the sale. If the Sheriff had issued the Certificate of Sale and Sheriff’s Deed to Genworth Financial Mortgage Insurance, the fraud and illegality would have been clearly and undeniably evident. Whether the Sheriff acted under order by Judge Gregory FitzMaurice or by instruction from PHH to issue the subsequent documents does not provide excuse or remedy for the defect in the Certificate of Sale or Sheriff’s Deed issued, reduce the fatal error committed, circumvent the prejudices and damages suffered by us, remove the illegality of the fraudulent concealment of the true occurrences, or eliminate the unenforceability of these documents. A video of the sale irrefutably demonstrates Genworth Financial Mortgage Insurance was the entity awarded the credit bid on August 28, 2017, that Sheriff Goetz clearly intended to sell our property to Genworth Financial Mortgage Insurance, and that he intentionally made the determination, which he verbally defended at the sale, that Genworth Financial Mortgage Insurance could credit bid. Sheriff Goetz has admitted and stated this decision was based on information provided to him by Genworth Financial Mortgage Insurance, PHH, and County Attorney Clayne Tyler. Facts gain merit or lose credibility based on the truthfulness of their existence. Truth is based in reality, factuality, and actuality. (Nickerson Family Quotes, July 2019). The truth is Genworth Financial Mortgage Insurance credit bid in violation of law and any purchase of our property on August 28, 2017, was unlawful and does not revoke our ownership of our property. Justice and the limitations of authority and discretion prevent and preclude PHH lawfully gaining or acquiring any rights based on the illegal act of Genworth Financial Mortgage Insurance credit bidding. Doing otherwise forces the Court and other entities to gloss over an illegality that justice demands, and enforceability requires, to be addressed. It is long held an ejectment action must accompany a firm proof of change of ownership as the ejectment action itself admits ownership by the foreclosed party is real, established, enforceable, superior, and prior in time. Per Black’s Law Dictionary, PHH Mortgage Services has not met the essential allegations required for ejectment. There is no statute on ejectment in Idaho, at which point it falls to common law.

 

Ejectment

The essential allegations in an action for ejectment are that (1) the plaintiff has title to the land, (2) the plaintiff has been wrongfully dispossessed or ousted, and (3) the plaintiff has suffered damages.

Black’s Law Dictionary 10th Edition

 

PHH Mortgage Services did not prove legitimate title, has never had possession so they could experience wrongful dispossession, and can have no foundation to claim any damages or injuries.

Further, PHH Mortgage Services and this Court rely upon Pro Indiviso, Inc. v. Mid-Mile Holding, 131 Idaho 741, 963 P.2d 1178 (1998) to prove PHH’s right to seek ejectment. Pro Indiviso is distinguishable from this case because the defendants did not submit admissible evidence to contradict the validity of the deed nor did they demonstrate they held paramount title. In this case, we hold paramount title as evidenced by our warranty deed and we have submitted a plethora of admissible evidence contradicting the validity of the Sheriff’s Deed.

PHH Mortgage Services does not have lawful ownership of our property and we cannot be lawfully ordered to surrender possession of our property based on the illegal and fraudulent sale conducted on August 28, 2017, or the false, slanderous, and defamatory Certificate of Sale and Sheriff’s Deed issued based upon it.

G. The sale is void because only the creditor could credit bid, a credit bid from a non-lender was accepted, and JPMorgan Chase’s new claims to be the rightful lender at the time of the sale corroborate our disputes of PHH Mortgage Services’ claims of ownership.

According to the Court in its Summary Judgment Order, only the creditor could credit bid. “Nickersons argue that if they knew that a bid could be accepted by the Sheriff from Genworth, they would have submitted their own credit bid. Nickersons are debtors not creditors.” Genworth Financial Mortgage Insurance was not a creditor either, so it was not lawful for Genworth Financial Mortgage Insurance to be allowed to credit bid unless all non-lenders were notified they could attend and participate in the sale by credit bid. PHH Mortgage Services has admitted there was no agreement in place between them and Genworth,

 

“REQUEST FOR ADMISSION NO. 6: Admit no agreements exist between Genworth Financial Mortgage Insurance and PHH Mortgage Services regarding the purchase, sale, or other transfer of our property.

RESPONSE TO REQUEST FOR ADMISSON NO. 6: Admit.”

 

Per PHH Mortgage Services, no presale agreements existed between Genworth Financial Mortgage Insurance and PHH Mortgage Services. Therefore, Genworth Financial Mortgage Services was not and did not act on behalf of PHH Mortgage Services at the sale, their credit bid is unlawful, and the Sheriff’s Deed and all subsequent actions taken post the foreclosure sale are void and unenforceable.

Additionally, it is prejudicial, in breach of contract, and in violation of statutory code to allow Genworth Financial Mortgage Insurance, a non-creditor with no personal vested interest in our property, to have an unfair advantage over us at the sale, the rightful owners and investors in the property.

Further, JPMorgan Chase claimed they were the rightful lender and creditor at the time of the sale, which meant the only entity that a credit bid could have lawfully been accepted from is JPMorgan Chase. (Exhibits 17-19, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order). PHH Mortgage Services has relied on a 2010 assignment from JPMorgan Chase to establish ownership. However, JPMorgan Chase’s current claims, coupled with the fact the 2017 assignment from JPMorgan Chase demonstrates JPMorgan Chase considered the 2010 assignment a mistake or void assignment, precludes PHH Mortgage Services claiming to be the lender based on interest acquired from JPMorgan Chase. Therefore, if JPMorgan Chase was the lawful creditor, then PHH Mortgage Services’ foreclosure is fraud, and the sale is void.

Furthermore, allowing PHH Mortgage Services to foreclose with disputes of ownership not fully resolved creates double indemnity (i.e. Triple indemnity in this case since Genworth Financial Mortgage Insurance’s credit bid was in fact accepted.), severe risk of debt liability from the true owner, theft of our substantial equity, irrecoverable loss of other substantial rights, irreplaceable loss of the enjoyment of our property, and other such invasions and violations of our privacy and security. In re Kemp, 440 B.R. 624 (Bankr. D.N.J. 2010), McKay v. Capital Res. Co., Ltd. 940 S.W.2d 869 (Ark. 1997), Miller v. Homecomings Financial, LLC, 881 F. Supp. 2d 825 (S.D. Tex. 2012). Jus non patitur ut idem bis solvatur - The law does not permit that the same thing be twice paid.

For the record, we informed the Sheriff it was not lawful for Genworth Financial Mortgage Services to credit bid and challenged Genworth Financial Mortgage Insurance’s right to credit bid at the sale. The Sheriff defended Genworth’s right to bid and accepted their bid. The Sheriff had previously met with the Clearwater County Attorney regarding stopping the sale due to fraud and irregularities with the sale, but had been ordered to proceed with the sale. If there is an error, it belongs to the bank and Clearwater County, not us. Our rights as the lawful owners were violated with the illegal and unlawful sale of our property. No right to action can arise from an illegal act so the sale is void and cannot be lawfully enforced.

H. Our property consists of two separate parcels and not selling them separately at the sale is not in accordance with Idaho code and prejudices our ability to protect and preserve our equity.

According to I. C. § 11-304 Conduct of Sale, our property, which consists of two separate parcels, should have been sold separately at our direction to satisfy the judgment (Sweitzer Id, Obduskey, Id). We were not permitted to direct the order in which the parcels were to be sold per I.C. § 11-304. The Sheriff sold the property as one unit when the certified value of just one of the parcels would have satisfied the judgment amount. We were prejudiced by this action because we lost all the value of the second parcel. Our built-up equity and substantial improvements earned us the right to satisfy the alleged debt with the sale of just one parcel while still maintaining the other piece free from encumbrance. (See Exhibits 4 and 5 of the Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order)

Additionally, the inclusion of the second parcel in this foreclosure action in and of itself, constitutes fraud as the second parcel was not encumbered in the original agreements. A true and accurate presentation of the facts reveal Coldwell Banker Mortgage made written and verbal exceptions to the mortgage filed and then Clearwater County Land Title filed felonious documents that have been ignored by the Clearwater County District Court, County Attorney Clayne Tyler, and County Clerk Carrie Bird (Clerk of the District Court, Auditor, Recorder, Clerk of the County Board of County Commissioners, Chief Elections Officer). Had any of these officials been willing to do the job they were elected to do, instead of being unwilling to stand for what is right and afraid to go against the big banks, PHH Mortgage Services’ claims would have already been dismissed in their entirety and they would have been prosecuted for criminal acts in Clearwater County long ago. Therefore, PHH Mortgage Services clearly breached any alleged agreement by fraudulently changing the property boundaries in this foreclosure action.

I. The sale price was grossly inadequate.

It is irrefutable from 2002 to present, the sale price is grossly inadequate. Underwriters for the bank determined in 2002 the home value per square foot was $187/square foot, which values the house price alone, without any property value considered, higher than the Sheriff’s sale price. As demonstrated in Exhibit 5 of the Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order, the “As is” market value for our property was $925,000 in 2006. According to the certified appraiser, additional property sales and improvements increase the value of our property beyond the afore mentioned price. Additionally, the 30-acre parcel of our over 50-acre property was listed for sale on real estate sites after the foreclosure sale for a property value of $633,200, demonstrating the banks knew and believed the value to be much greater than the $333,000 bid amount at the sale. Further, Wells Fargo Bank extended $396,000 line of credit based on a 90% debt to market ratio on the 30-acre parcel alone (30 acres value of $730,000). To corroborate these values, an independent market analysis performed by an Idaho listing agent set market value above the certified appraisal with an anticipated market tenure of a few months. Further still, a public auction broker familiar with the property amenities and its location, confidently estimated a minimum purchase price of $750,000 at public auction, with expectations much higher in a properly advertised auction. Certainly, it is irrefutable a signed real estate purchase contract concretely establishes existing market value. We were presented with a signed real estate purchase offer and agreement for our property in 2010. This formerly proffered purchase price offered with earnest included special possession provisions as part of the sales agreement that would permit our perpetual use of the property for our ministry needs without exception, along with additional cash and use considerations that made it a full purchase price contract. However, PHH Mortgage Services and JPMorgan Chase blocked, prevented, and forbid the sale of the property to satisfy the debt.

Denying us opportunity to retrieve our equity, then foreclosing to steal all built up equity while we were begging them to let us save our home severely, significantly, and substantially damaged and injured us. This is our home. We want to keep it. We have and have always had the wherewithal to keep it. We are and will continue to fight to keep it. The fact the only reason we were ever given as to why they would not work with us is because we are Christians escalates their malicious harassment to a hate crime and renders their actions another criminal assault in their ever-growing rap sheet of crimes against humanity.

All these calculations and analysis, among other evidence and testimony to be presented at trial, affirm and confirm the property value claimed by us and the certified appraisal.

Therefore, if Genworth Financial Mortgage Insurance required a minimum bid of 90% of the market value, then at the very least 90% of $925,000.00 which is $832,500.00 should have been the minimum bid. The credit bid value given in consideration at the foreclosure sale was grossly less than the fair value of our property. As demonstrated in Exhibit 5, even the agricultural tax assessed value is greater than the grotesque sales price. According to Black’s Law Dictionary, the sale price qualifies as grossly inadequate, and could constitute another form of fraud and injury perpetrated against us. Given the certified appraisal amount, as firmly established by a multiplicity of market evaluations, assessments, and an actual purchase offer, the purchase price should have far exceeded the judgment amount yielding some recoup of our built-up equity for us.

 

Grossly inadequate consideration
Consideration whose value is so much less than the fair value of the object acquired that it may not support finding that the transaction is a valid exchange. Depending on the surrounding circumstances, the transaction may actually be fraud, a gift, or something else other than a sale and purchase.
Black’s Law Dictionary 10th Edition

 

J. The Sheriff’s Deed cannot grant PHH Mortgage Services any valid title.

Because of the illegalities and fraud surrounding the underlying foreclosure action, sale, and this subsequent ejectment action, the only title PHH Mortgage Services could have been granted by the Sheriff’s Deed is a defective title.

 

Defective Title
With respect to negotiable paper within Negotiable Instruments Law, the title of a person who obtains instrument or any signature thereto by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith or under such circumstances as amount to fraud. Stevens v. Pierce, 79 Oki. 290, 193 P. 417, 18 A.L.R. 7; (fraud) German-American Nat. Bank v. Kelley, 183 Iowa, 269, 166 N.W. 1053; Commercial Security Co. v. Jack, 29 N.D. 67, 150 N.W. 460, 461.
Black’s Law Dictionary 4th Edition

 

A title that cannot legally convey the property to which it applies, usu. because of some conflicting claim to that property. – Also termed bad title.
Black’s Law Dictionary 10th Edition

 

This foreclosure has been litigated through prejudice and bias.

In a “global” way every aspect of the foreclosure sale caused prejudice because all of it leans “towards one side of a cause for some reason other than a conviction of its justice.”  Prejudice - Black’s Law Dictionary 4th Edition. It is damaging because it is one step closer to us losing our property and suffering additional severe, significant, and substantial damages and injuries. It is also enabling PHH Mortgage Services to be able to continue their fraud, theft, and abuse with the help and authority of the court through acute regulatory failure, unconstitutional judicial oversight, and no consideration of justice or what is right. Qui non prohibet quod prohibere potest assentire videtur - He who does not prohibit when he is able to prohibit, is in fault. Therefore, for the reasons detailed above in sections A-J, and due to the damage and prejudice we have suffered as a result of the unlawfully conducted sale, we request the court set aside the Sheriff’s sale and judicially recognize our lawful deeded rights to our property. Our title, granted by our Warranty Deed, is prior in time, superior in right and paramount title to any other claims allegedly held by PHH Mortgage Services or any other entity.

PHH Mortgage Services does not and has not ever held lawful title to our property.

Domus sua cuique est tutissimum refugium - To everyone his house is his safest refuge. We have legal standing to deny PHH Mortgage Services’ claim to ownership, and a respect for our citizenship compels us to defend ourselves, our home, and our American rights of religious freedom, property ownership, and due process from this unlawful and direct attack on our constitutionally guaranteed freedoms. One fundamental failure of PHH Mortgage Services’ entire action against our property is they do not and have never held the title. We do. On September 4, 2002, a Warranty Deed was executed conveying the ownership of 3165 Neff Road to Charles and Donna Nickerson. This document, which states our property was free from all encumbrances, was recorded in the Clearwater County land records as instrument #190567 (Exhibit 7, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order). On October 4, 2002 we granted Coldwell Banker Mortgage a mortgage against our property. No knowing or willing rights to title were transferred to Coldwell Banker Mortgage. As a matter of fact and agreement, Coldwell Banker Mortgage and Clearwater County Land Title Company told us and assured us we were not placing a deed of trust on this property or transferring title to Coldwell Banker Mortgage in any way. We held and hold our land as fee simple absolute in possession and did not transfer title to any entity in October 2002. Any lien granted to Coldwell Banker Mortgage was subordinate to our clear title. Additionally, long standing law, even internationally in principle, clearly establishes since our equity is over 51% of our property value, we possess controlling right and no power on earth has the authority to foreclose and take our property.

The Order of Sale and Decree of Foreclosure filed on April 13th, 2017, states in the last sentence of Paragraph 1:

 

“The repayment of the aggregate sums described herein is secured by a valid Deed of Trust and lien on the Subject Property in favor of Plaintiff.”

 

The Order of Sale and Decree of Foreclosure filed on April 13th, 2017, states in Paragraphs 2 and 3,

 

“2. Plaintiff has a first priority lien subject to the Deed of Trust on the Subject Property which is prior in time and superior in right to any right, title, claim, or interest that all Defendants, and all persons claiming under them, may have in the Subject Property, either as encumbrancers, purchasers, or otherwise; said first priority mortgage lien being evidenced by the Deed of Trust recorded as instrument #190568 on October 4, 2002, in the official records of Clearwater County, Idaho.

 

“3. The interests of Defendants are junior and subordinate to those of Plaintiffs, and that Defendants and all persons claiming under Defendants, either as encumbrancers, purchasers or otherwise, shall be forever barred and foreclosed of all right, title and interest and equity of redemption they may have in and to the Subject Property, when the time for redemption has elapsed under Idaho Law.”

 

This Order of Sale and Decree of Foreclose is void as a matter of law and fact for, among other issues, the reasons below:

1) PHH Mortgage Services has no right, interest, or title that can be granted to them or that we, or any reasonable person, or law-abiding citizen, will or can acknowledge under this Deed of Trust. This instrument is illegal. PHH Mortgage Services has claimed and was granted the right to foreclosure against a 50-acre piece of property by virtue of a Deed of Trust that Idaho law specifically states cannot be used on more than 40 acres - I.C. § 45-1502(5). Whether or not a deed of trust can be judicially foreclosed is irrelevant as to whether our property could have a deed of trust placed against it. Regardless whether PHH Mortgage Services is granted rights by their illegal acts, we will not abandon the rule of law to surrender possession to their criminal claims.

"Regardless of the number of transactions, one cannot remove himself from the confines of the rule: A purchaser can take only those rights which his transferor has in the subject goods; a thief has neither title nor the power to convey such."

Thus, "a sale by the thief or any other person claiming under the thief does not vest any title in the purchaser as against the owner, though the sale was made in the ordinary course of trade and the purchaser acted in good faith." (Id. § 2-401:61, at p. 555, fn. omitted.) Any title derived from a thief, despite an authentic certificate of title, is therefore considered void

Suburban Motors v. State Farm Mut. Auto. Ins., 268 Cal. Rptr. 16, 218 Cal. App. 3d 1354 (1990)

 

Quie ab initio non valent, ex post facto convalescere non possum.
Things invalid from the beginning cannot be made valid by subsequent act.

 

2) Our Warranty Deed was executed September 4th, 2002 and is filed as instrument #190567. The illegal Deed of Trust PHH Mortgage Service has claimed the right to foreclose on is dated October 4, 2002, and is recorded as instrument #190568.

Qui prior est tempore potiorest jure - He who is prior in time is superior in right.

Our right and title to our property is superior in right and prior in time to PHH’s claim. We hold paramount and priority title to the property, and PHH’s claims are junior and subordinate to our Warranty Deed. All claims or judgments to the contrary are void as a matter of law and fact.

 

Prior
Proceeding in time or order
Black’s Law Dictionary 10th Edition

Priority
“2. He who has the precedency in time has the advantage in right, is the maxim of the law; not that time, considered barely in itself, can make any such difference, but because the whole power over a thing being secured to one person, this bars all others from obtaining a title to it afterwards.” 1 Fonb. Eq. 320

A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.

Paramount title refers to a title that prevails over any other claim of title. In real property law paramount title means the original title or ownership superior or stronger than the one with which it is compared to.
Paramount Title Law and Legal Definition, USLegal, Inc.

 

3) We own and hold the title to our property. Any interests allegedly acquired or that could be acquired based on the claims set forth by PHH Mortgage Services (even if any truth existed or could exist in them) would be junior and subordinate to those we already have. A Deed of Trust does not grant title unless the loan is completely satisfied, and the Trustee issues the title. Neither of the Trustees named in this whole fiasco, Just Law, nor First American Title, have or have ever had a title in hand to grant to us even with a complete satisfaction of the alleged Note. PHH Mortgage Services does not, and by law, they cannot. Clearly, every claim of PHH Mortgage Services is fraud, a scam, and represents rights PHH Mortgage Services does not possess, nor have they, do they, or can they have the right to possess or grant in the first place.

This Order of Sale and Decree of Foreclosure actually forecloses on all our interests under an illegal Deed of Trust. This means PHH Mortgage Services is no longer required to give us the title to our property, which is something they do not have in the first place as we did not grant title. Therefore, even if the judgment is allowed to stand, PHH Mortgage Services’ foreclosure action and Sheriff’s Deed at the most can only grant them a secondary title to our land.

4) PHH violated any alleged contract by refusing to accept payments.

Reprobata pecunia leberat solventem - Money refused releases the debtor.

Under contract law, as long as we were willing to perform our part (i.e. tender payments), PHH Mortgage Services is barred from claiming non-performance. PHH has admitted they refused to allow us to make payments, and therefore we were excused from performance and granted all rights of full performance. (Exhibit 21, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order.) We deny and dispute any rights or assertions of rights by PHH Mortgage Services that might claim otherwise in their entirety.

 

“Throughout the course of human history, the perpetration of evil has inevitably resulted in the suffering of the innocent, and those who act in good faith. And the principle has been basic in the law that a thief conveys no title as against the true owner. … The law stands as a bulwark against the handiwork of evil, to guard to the rightful owners the fruits of their labors.” Menzel v. List, 49 Misc. 2d 300, 267 N.Y.S. 804 (NY: Supreme Court, New York 1966)

II. NEW EVIDENCE OF ASSIGNMENT AND OWNERSHIP FRAUD, ILLEGALITIES AND IMPOSSIBILITIES AFFIRM OUR CURRENT CLAIM OF FRAUD.

Fraus et jus nunquam cohabitant - Fraud and justice never dwell together. It is firmly established in an action for ejectment, the plaintiff must prove they hold a valid title. PHH Mortgage Services claims ownership by virtue of a Sheriff’s Deed, which, as demonstrated in Section I, was granted based on a void judgment, an expired writ, an illegal sale, and grossly inadequate consideration. The courts of Idaho have procedurally ignored and refused to consider the fraud, illegalities, and impossibilities of PHH Mortgage Services’ claims of ownership to request foreclosure in the first place. These issues are not res judicata as the fraud surrounding PHH Mortgage Services securing a Sheriff’s Deed is a new issue in this case. Exhibits 8 and 9 provide relevant information as well (Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order, 2019).

Recent summary judgment order confirms PHH Mortgage Services committed fraud upon the Court.

Incredibly, in its recent summary judgment decision, this Court concluded the issue “that Chase Bank was the holder of mortgage, not PHH, has been litigated and decided. [Citation omitted] (in June of 2010, Chase assigned the note to PHH)” p. 4-5 Summary Judgment Order

The fact the Idaho Supreme Court ruled “in June of 2010, Chase assigned the note to PHH” is evidence that proves beyond a shadow of a doubt PHH Mortgage Services and JPMorgan Chase committed fraud upon the Court and that this Court must act quickly to preserve our property ownership. In response to requests for admission regarding the 2017 assignment that took place 7 years after the assignment acknowledged by the Supreme Court, PHH Mortgage Services admitted the 2017 assignment,

 

“speaks for itself and merely clarifies the land records to conform to what had already been decided through the underlying litigation.” (Response to Admission No. 19, Plaintiffs Responses to Defendants’ First Set of Requests for Admissions and Requests for Production)

 

Additionally, claims post the 2017 assignment suggest foul play regarding who all the perpetrators of fraud are. If the 2010 assignment was genuine, there would be no need to “clarify” and “conform” the land records. This court must see PHH Mortgage Services is aware of and has acknowledged the fraud they committed. Further, the 2017 assignment demonstrates JPMorgan Chase considered the 2010 assignment a mistake that did not assign anything, or they could not represent they were the current owner to record the 2017 assignment.

This Court completely mischaracterizes the facts in its findings on page 1 of its Summary Judgment Order in regard to the 2014 Summary Judgment.

 

“The Court also found that Nickersons failed to prove that J. P Morgan Chase was the holder of the mortgage and thus PHH lacked standing to foreclose.”

 

The Memorandum Opinion on the 2014 Summary judgment does not even address this issue. We filed a Notice of Supplemental Evidence on March 7, 2014, 28 days prior to Judge Griffin granting summary judgment to PHH Mortgage Services. This notice included an affidavit introducing evidence of fraud we had just received, and demonstrated JPMorgan Chase was still the owner of our note and mortgage and created a genuine issue of material fact with all of PHH Mortgage Services’ claims (See Exhibit 18, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order). In regards to this evidence Judge Griffin ruled,

 

 

“The Nickersons submitted additional documents and statements after the hearing on the motions for summary judgment. The court will not consider those documents…” (Memorandum Opinion Re: Plaintiff’s Second Motion For Summary Judgment and Nickerson’s Motion Summary Judgment, pg. 2, 2014)

 

How this Court can obtain from Judge Griffin’s decision, “The Court also found that Nickersons failed to prove that JPMorgan Chase was the holder of the mortgage and thus PHH lacked standing to foreclose,” when Judge Michael Griffin ruled without considering our evidence, is beyond comprehension.

The moral conscience of this Court should be offended and angry at the decisions rendered by Judge Michael Griffin and the actions of the counsels in this matter. The case file was prejudicially created, and referencing it to further dispose of the case serves only to propagate this tyrannical attempt to punish the Nickersons for their Christian faith and attempt to force the Nickersons to go away. Judge Griffin broke his word and violated his oath to ensure equal access to justice for both parties by not considering those documents above. Refusing to provide a decision for continuance until the morning of the hearing, after having been fully informed we wanted to file additional documents, did not serve to promote justice or fair adjudication. The injustice served upon us in Clearwater County, Idaho, is what one would expect in a communist country where the persecution of Christians is accepted and somewhat common place; where property rights are non-existent; and where rule of man dominates and reigns. This is America. The negligence of our former attorney, concealment of the true status of the case, misrepresentations and deceit of opposing counsel, and inadequacies and incompetency of the handling of bench authority, prevented us from securing discovery sooner. Judge Griffin, then refusing to consider the prejudice caused, prejudiced us further. A righteous judge would have recognized errors had been committed and sought to set them straight, not refused to consider them and assisted known criminals (in 49 states) in continuing to abuse fellow homeowners for expediency or convenience. Regardless, refusing to look at evidence that exonerates an accused person, then stating they failed to prove their innocence is the epitome of injustice. We did not fail to prove our position. Our position was silenced, fraudulently concealed, misrepresented, and ignored. It is more probable than not, if not irrefutable, that we would have prevailed in all matters of this foreclosure if our Constitutional right to a jury trial had been upheld. The Clearwater County District Court has become an accomplice to injustice and an abuser of an innocent family by rendering and affirming judgments determined in fraud and through concealment. May God help America and awake the true patriots if the American justice system has truly fallen this far in a small little rural town like Orofino, Idaho.

 

Ad officium justiciariorum spectat, unicuique coram eis placitanti justitiam exhibere.

It is the duty of justices to administer justice to every one pleading before them. 2 Inst. 451.

 

Our current fraud claim is based on new evidence of fraudulent actions of PHH Mortgage Services and JPMorgan Chase that occurred three years after the underlying foreclosure judgment was obtained.

As demonstrated throughout Section II, the issue of fraud regarding PHH Mortgage Services’ standing to prosecute a claim for foreclosure was not fully or fairly litigated. Thus, the issue preclusion test of res judicata does not apply. Ex dolo malo non oritur action - No right of action can have its origin in fraud. Ex dolo malo actio non oritur - A right of action cannot arise out of fraud. However, as the following argument demonstrates, the issue of fraud regarding PHH Mortgage Services’ standing to prosecute a foreclosure is not the same issue or claim as our current claim of fraud. Our current claim of fraud is PHH Mortgage Services foreclosed and obtained judgment based on fraud. PHH Mortgage Services’ foreclosure and judgment solely rest upon and find their support in fraud, not facts, laws, evidence, or truth.

The underlying case screamed fraud regarding PHH Mortgage Services’ standing to foreclose, but procedural manipulation, regulatory failure, and judicial tyranny still permitted PHH Mortgage Services to pursue foreclosure. We presented evidence of fraud demonstrating PHH Mortgage Services did not have standing and were attempting to foreclose, which, as detailed above, and below, was an issue the Courts refused to fully and fairly consider.

Most recently, Judge Gregory FitzMaurice ruled,

 

“Fraud was considered and rejected by both the District and Supreme Courts in the foreclosure action.”
Order re: Motion to Reconsider Summary Judgment, pg. 2, 2019

 

This ruling was in error as the district and supreme courts previously ruled in the underlying foreclosure action that fraud was not considered, pled, or raised.

 

“The Nickersons argue that PHH committed fraud, however, they did not allege fraud in their pleadings. No admissible evidence of fraud has been presented to the court.” Memorandum Opinion Re: Plaintiff’s Second Motion for Summary Judgment and Nickerson’s Motion Summary Judgment, pg. 4, 2014

“The Nickersons argue that the assignments from Coldwell Banker to Chase and from Chase to PHH are fraudulent. The defendants did not allege fraud as an affirmative defense.” Memorandum Opinion Re: Plaintiff’s Second Motion for Summary Judgment and Nickerson’s Motion Summary Judgment, pg. 4, 2014

“The Nickersons did not plead fraud in their answer nor in their amended answer. The Nickersons did not raise the issue of fraud during PHH’s and Chase’s first motions for summary judgment.”
Nickerson 1, pg. 8, 2016

As a matter of record, even if the Courts had truly considered our claim, allowed us to amend our answers so as to submit our claims, or considered whether PHH Mortgage Services did not have standing to foreclose, and then chose to rule in PHH Mortgage Services’ favor, that would have no effect on the case at hand. Our claim for fraud in this case is that PHH Mortgage Services fraudulently foreclosed. Their fraudulent act culminated and was consummated when final judgment was rendered in their favor and the subsequent Sheriff’s sale was completed. In this case, our fraud claim against PHH Mortgage Services is distinguishable because the fraud is exposed in the fact an assignment (post foreclosure agreement between JPMorgan Chase and PHH Mortgage Services for PHH Mortgage Services to purchase JPMorgan Chase’s rights in our property) from JPMorgan Chase to PHH Mortgage Services was executed three years after a judgment for foreclosure was obtained. This fact alone demonstrates the judgment for foreclosure PHH Mortgage Services obtained is a fraudulent judgment. The additional facts and evidence detailed in this memorandum in its entirety supports and demonstrates genuine issues of fact exist that PHH Mortgage Services fraudulently obtained their foreclosure judgment.

According to Idaho law, our current claim of fraud did not accrue until we discovered, in May of 2018, that JPMorgan Chase still claimed to be the owner of our loan in an assignment to PHH Mortgage Services in 2017 (three years after PHH Mortgage Services obtained a summary judgment for foreclosure) and still claimed to be the investor on our loan.

 

“the law in Idaho is that an action for relief on the grounds of fraud will not be “deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud” ” I.C. § 5-218. Hall v. Forsloff, 124 Idaho 771, 864 P. 2d 609 (1993).

 

It is impossible for our current claim of fraud to be considered res judicata because our current action for fraud had not even begun to accrue until we discovered it in 2018 and claims arising subsequent to a prior action are not barred by res judicata (Darney, Id). Any perceived delay in discovering this and other relevant information or evidence has been caused solely and entirely by PHH Mortgage Services and JPMorgan Chase and their failure to comply with 12 C.F.R. 1024.38 and other applicable statutes and acts.

Therefore, res judicata cannot apply to our action of fraud because it had not even accrued, and thus, our claims must be reinstated, and the summary judgment must be vacated. Further, to ignore this current evidence of fraud violates the principles upheld by the Idaho Supreme Court that fraud vitiates everything it touches (Tusch, Id), and no one is privileged to deceive another to the other’s detriment (Kawaii, Id).

All issues or claims of fraud were procedurally ignored in the underlying foreclosure action.

As demonstrated below, the Court’s claim that the issue of fraud regarding PHH Mortgage Services’ ownership and standing was already determined on the merits is in error. During the second summary judgment process in the underlying foreclosure case, we attempted to specify our allegations of fraud regarding PHH Mortgage Services’ claims to ownership and provided supplemental evidence regarding JPMorgan Chase’s claims to own our note and mortgage. In ruling against our fraud claims, District Court Judge Michael Griffin stated, “The Nickersons argue that PHH committed fraud, however, they did not allege fraud in their pleadings. No admissible evidence of fraud has been presented to the court…The defendants did not allege fraud as an affirmative defense.” Memorandum Opinion Re: Plaintiff’s Second Motion for Summary Judgment and Nickerson’s Motion for Summary Judgment, April 4, 2014. In this same opinion, Judge Michael Griffin went on to say “The Nickersons submitted additional documents and statements after the hearing on motions for summary judgment. The court will not consider those documents...” Id. The evidence Judge Michael Griffin refused to consider was a statement of fact from JPMorgan Chase that disputed PHH Mortgage Services’ claim to ownership. “We are not required to produce the original note which will remain in our possession in accordance with applicable record retention requirements…The investor for this loan is JPMorgan Chase Bank, National Association” (Exhibit 18, Affidavit of Charles Nickerson in Support of Motion To Reconsider Summary Judgment) The Court then denied our motions to reconsider based on timeliness alone – not on the merits, i.e. the Court knew PHH Mortgage Services had committed fraud, but silenced the evidence.  

 

 

“It has long been judicial policy in Idaho that controversies be determined and disposed of each on its own particular facts and as substantial justice may require. The exercise of judicial discretion should tend to bring about a judgment on the merits. Perry v. Perkins, 73 Idaho 4, 245 P.2d 405 (1952); Dellwo v. Peterson, 34 Idaho 697, 203 P. 472 (1921). See 5 Am.Jur.2d Appeal and Error § 906.

A ‘determination’ of an action within the meaning of Rule 1 is meant to be a determination of the controversy on the merits – not a termination on a procedural technicality which serves litigants not at all.” Bunn v. Bunn, 99 Idaho 710, 587 P.2d 1245 (1978).

 

The Court also denied our motion to amend our pleadings which included 70 pages of pleading fraud with specificity but failed to provide a written order or memorandum for us to appeal. The Idaho Supreme Court then refused to rule on our appeal to allow us to amend our pleadings because there was no adverse ruling or memorandum opinion to point to.

In regard to fraud, the Idaho Supreme Court found in regard to fraud, “The Nickersons did not plead fraud in their answer nor in their amended answer. The Nickersons did not raise the issue of fraud during PHH’s and Chase’s first motions for summary judgment.” Nickerson 1, pg 8. Thus, the Idaho Supreme Court determined fraud was not previously addressed.

At the time of the first summary judgment, our former attorney told us he pled waiver and estoppel due to PHH Mortgage Services’ fraud. He later admitted he had negligently represented our position, lied to us about key issues relating to the case, and secured no meaningful discovery to support our position. Exhibit 6, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order.

 

“The Nickersons’ case was not decided on its merits and really no meaningful discovery was ever answered by the Plaintiffs. There is no prejudice to the Plaintiffs in allowing the Nickersons to have discovery done properly and have the underlying case and their counterclaims decided on the facts of the case and not have the case decided because of an incompetent mentally unfit at the time attorney who did not know how to handle the mess that he created. I believe all the Nickersons want is the chance to put on their defense and their proof for their counterclaims.” Affidavit of John Mitchell, Sept. 28, 2014

 

We were denied opportunity to amend our pleadings, so fraud was never considered. Therefore, the issue of fraud regarding PHH Mortgage Services’ claim to ownership has never been fully or fairly adjudicated on the merits or otherwise, and thus, res judicata does not apply to that issue. (Ticor Title, Id). Additionally, regarding the first summary judgments, by law, they should have been vacated because of our attorney’s negligence.

 

 

“It is said that, where it appears that a judgment was taken against appellant through the negligence of an attorney who had been employed by such party, nothing is left to the discretion of the court, and the judgment must be set aside.” Pierce v. Vialpando, 78 Idaho 274, 301 P.2d 1099 (1956).

 

Furthermore, the District Court’s opinions regarding the chain of title contradict one another; and PHH Mortgage Services’ and JPMorgan Chase’s claims contradict themselves, each other, and the Court’s opinion.

 

“Chase initially serviced this loan. There was no contract between Chase and the Nickersons that has been presented to the court.” Memorandum Opinion Re: Chases’ Motion For Summary Judgment, p. 2 (Nov. 16, 2012)

 

“The note was initially serviced by J P Morgan Chase Bank (Chase), and later reconveyed to PHH.” Memorandum Opinion Re: PHH’s Motion For Summary Judgment, p. 2 (Nov. 16, 2012)

 

“The note was initially serviced by Mortgage Service Center. J P Morgan Chase Bank (Chase) owned the note and serviced the loan from the end of 2007 until the beginning of 2010. At that time, the Mortgage Service Center resumed servicing the loan.  PHH owned the loan when this lawsuit was filed.” Memorandum Opinion Re: Plaintiff’s Second Motion for Summary Judgment, p. 2 (Apr. 4, 2014)

See Exhibits 8 and 9, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order

 

These contradictions have never been addressed. By law, and in fact and reality, Judge Griffin’s erroneous and contradictory findings substantially revoked our right to due process and prejudicially granted PHH Mortgage Services impunity to judicially steal our home. These findings create disputes within themselves that prove genuine issues of material fact exist and that must be determined by a trier of fact. In the underlying foreclosure action, neither PHH Mortgage Services nor JPMorgan Chase ever provided a true chain of title to the Court. All Idaho courts have refused to require PHH Mortgage Services to disclose the fact they did not have ownership, lender or holder rights to our note and mortgage when they, acting as a debt collector, chose to refuse to accept our payments, or work with us to resolve their alleged and self admitted erroneous default. PHH Mortgage Services maliciously prevented our performance and fabricated false claims to fraudulently force a foreclosure, and inflict severe, significant, and substantial damages and injuries on us. Therefore, the defense of res judicata is barred since the claims regarding the chain of title from the District Court, PHH Mortgage Services, Fannie Mae, and JPMorgan Chase are contradictory, and in many cases comprehensively dishonest and untrue, the county land records are incomplete and irrefutably filled with fraud, evidence has not been considered, and the issue of PHH Mortgage Services’ alleged ownership and beneficial interest in our note and mortgage has never been fairly adjudicated. (Ticor Title, Id) See Exhibit 9, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment. Fair is legally defined to ensure individuals receive opportunity for full and fair contests based on the truths of matters in dispute resolution.

 

Fair is defined as 1.Characterized by honesty, impartiality, and candor; just; equitable; disinterested 2. Free of bias or prejudice 4. Unblemished and unaltered 5.Reasonably good in kind, quality, or degree; free from any pronounced defect.
Black’s Law Dictionary 10th Edition

 

Idaho court rulings affirm fraud is present in the chain of title and that contradictory claims establish the existence of fraud.

The District Court’s final chain of title claim indicates Coldwell Banker Mortgage initiated the loan and assigned it to Fannie Mae in December 2002.

 

The original loan to the Nickersons was made by Coldwell Banker Mortgage. The loan was originally serviced by Mortgage Service Center. The note was assigned from Coldwell Banker Mortgage to Fannie Mae in December of 2002. J.P. Morgan Chase acquired the note in November 2007. In November of 2007 Chase Home Financial took over servicing the loan. Chase assigned the note to PHH in 2010 (June). In February of 2010 Mortgage Service Center again began servicing the loan. Memorandum Opinion Re: Plaintiff’s Second Motion for Summary Judgment and Nickerson’s Motion Summary Judgment, Page 3, 2014

 

This claim was upheld by the Idaho Supreme Court, but it is nonetheless erroneous and factually in error as demonstrated below and in Exhibit 9, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order. PHH Mortgage Services committing deceptive acts and fraudulently concealing truth, and Idaho Courts prejudicially ignoring our requests to expand the factual record of the case, prevented this issue from being properly, fully, or fairly adjudicated prior to new evidence being discovered.

 

False, Contradictory and Nonsensical Claims Made by JPMorgan Chase - Ownership

JPMorgan Chase claims they were the Servicer, not the owner, to secure summary judgment in 2012.

To the Court, JPMorgan Chase claimed they serviced the loan from 2007 to 2010, but denied they ever owned the loan or that Coldwell Banker Mortgage assigned it to them in 2007. In their Memorandum in Support of Chase’s Motion for Summary Judgment, JPMorgan Chase stated, “The Note was immediately sold to Freddie Mac…In February 2010, PHH repurchased the Note from Freddie Mac…” This evidence in the record suggests Freddie Mac was involved with our loan and creates dispute as to whether PHH Mortgage Services had or has any ownership whatsoever. (Exhibit 9, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order.) Discovery regarding this claim is unanswered in this action, as it was in the underlying foreclosure action.

JPMorgan Chase contradictorily claims continuous ownership thereby barring any ownership claims by PHH Mortgage Services.

In response to federal laws, requirements, and information requests, JPMorgan Chase claimed they purchased our loan on December 3, 2009. On January 10, 2014, and as of May 21, 2018, JPMorgan Chase stated they still owned our loan. JPMorgan Chase listed our property for sale post the foreclosure sale. JPMorgan Chase’s federally mandated and regulated responses and claims have been provided to the Idaho Courts, but the Idaho Courts have ignored and continue to ignore them by choosing to have a blind eye and turn a deaf ear to the fraud and illegal actions of JPMorgan Chase and PHH Mortgage Services. (See Exhibits 9 and 17-19, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order.) This demonstrates judicial bias and prejudice, and finds the Court acting outside the responsibility or authority of judicial oversight.

 

False, Contradictory, Fraudulent and Nonsensical Claims Made by PHH Mortgage Services – Ownership
PHH Mortgage Services falsely claimed ownership.

To the Court, PHH Mortgage Services claimed Coldwell Banker Mortgage assigned the note to Fannie Mae, that Fannie Mae had JPMorgan Chase service the loan, and that Fannie Mae assigned the note directly “back” to PHH Mortgage Services, and then contradictorily claimed JPMorgan Chase owned the note and transferred the note to PHH Mortgage Services. PHH Mortgage Services has never owned our note so “back” is a misleading and deceptive presentation. (Exhibit 9, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order). Further, JPMorgan Chase and Fannie Mae could not both assign the note to PHH Mortgage Services. That is impossible legally, morally and in plausible or actual reality. PHH Mortgage Services’ contradictory claims nullify the judgments rendered in their favor, confirms fraud, and demonstrates and corroborates one of the reasons why the Banking Regulators of 47 states and Attorney Generals of 49 states and the District of Columbia have fined PHH Mortgage Services for breaking state and federal laws and abusing citizens of the United States of America.

 

 

Allegans contraria non est audiendus.
One making contradictory statements is not to be heard.


PHH Mortgage Services never claimed to be the owner in their communication regarding our ranch.

In response to federal laws, requirements, and information requests, PHH Mortgage Services never sent the required Notice of New Creditor to us – PHH Mortgage Services has never independently and in accordance with federal law, claimed to us to be our creditor prior to or during the foreclosure action. 15 U.S.C. § 1641(g). Based on this fact alone, if PHH Mortgage Services was the alleged lender, then PHH Mortgage Services defaulted on its contractual obligations to adhere to applicable law (Mortgage Section 16. Governing Law – Exhibit 10). In a 2013 QWR response, PHH Mortgage Services claimed the assignment of record is a 2007 assignment from Coldwell Banker Mortgage to JPMorgan Chase. Independent of the Court actions against us, and in accordance with admissions required by federal law, PHH Mortgage Services claimed JPMorgan Chase was the owner and holder of our note and mortgage during the time PHH Mortgage Services was securing a fraudulent foreclosure judgment against us. We cannot be required to surrender our property to an entity we did not have a contract with, nor owe any obligation to.

 

“When a non-debtholder forecloses, a homeowner is harmed because he or she has lost her home to an entity with no legal right to take it. …. ‘The consequences of wrongfully evicting someone from their home are too severe to be left unchecked.’”  Sciarratta, Id.

 

The County Land Records – Assignment Fraud and Illegalities

The District Court used the county land records as evidence of PHH Mortgage Services’ claim to ownership. However, those records are wrought with fraud and contradict the findings of the court, and the evidence in the record of the case. Thus, the filings in the county land records constitute felony offenses (I.C. § 18-3203). In addition, the county land records are incomplete.

A. The County Land Records are Incomplete

None of the assignments to or from Fannie Mae or allegedly Freddie Mac are recorded in the county land records. The Idaho Courts determined Coldwell Banker Mortgage assigned the note to Fannie Mae in 2002. There is no record of this assignment. Further, the Idaho Courts determined JPMorgan Chase acquired the note in 2007, but give no indication of who JPMorgan Chase acquired the note from. There is no assignment in the county land records of Fannie Mae assigning the note to anyone. The absence of any assignment to or from Fannie Mae demonstrates the fraudulent, deceitful, and illegal nature of the chain of title to our property and of the entities (Coldwell Banker Mortgage, Fannie Mae, JPMorgan Chase, and PHH Mortgage Services) involved.

 

Chain of Title
For the holder to have good title, every prior negotiation must have been proper. If a necessary indorsement is missing or forged, the chain of title is broken and no later transferee can become a holder.

Black’s Law Dictionary 10th Edition

Holder

Someone who has legal possession of a negotiable instrument and is entitled to receive payments on it.
Black’s Law Dictionary 10th Edition

 

Non-conformance issues (like falsifying documents to pursue foreclosure) are also called felony offenses when they are intentionally filed in the county records. These criminal filings create a broken chain of title, and establish the fraud committed, defeats summary judgment. PHH Mortgage Services fatally failed to disclose a broken chain of title existed in the county record during the underlying foreclosure action and procedurally thwarted our challenges of any such non-conformity with false claims. I.C. § 7-601, I.C. § 48-603. If conforming the record was lawful and appropriate, the law, as well as contractual and regulatory requirements, demanded PHH Mortgage Services do so prior to a complaint being filed, and certainly before a fraudulent judgment stripping us of our property rights was obtained. Trying to conform the county records three years after judgment is evidence of fraud on the court. The fact PHH Mortgage Services hid critical facts and evidence from us and the World At Large establishes a full and fair contest of the material facts of this case has not occurred and that our discovery attempts are well founded and necessary to a just disposition of this case. If PHH Mortgage Services had not fraudulently concealed truth to secure a wrongful foreclosure judgment against us, the truth would have barred summary judgment in favor of PHH Mortgage Services. Lex punit mendaciam - The law punishes false hood. PHH Mortgage Services was not the lender when the complaint was filed, and this Court must act quickly to dismiss PHH Mortgage Services’ complaint, reverse all judgments in their favor, vacate the sale, and restore the county land records to show we are the only true and rightful owners of 3165 Neff Road.

 

Idaho Code § 6-101. Proceedings in foreclosure.
 …(2) The provisions of this section must be construed in order to permit a secured creditor to realize upon collateral for a debt or other obligation agreed upon by the debtor and creditor.

 

Plaintiff must produce original note not copy otherwise maker may face double liability. McKay v. Capital Res. Co., Ltd. 940 S.W.2d 869 (Ark. 1997).

 

“The real party in interest in foreclosure actions is the current holder of the note and mortgage.” Bank of Am., NA v. Miller, 194 Ohio App. 3d 307 (2011).

 

“Evidence establishing when Appellee became a person entitled to enforce the note must show Appellee was a person entitled to enforce the note prior to filing its cause of action for foreclosure.” Deutsche Bank Nat. Trust v. Brumbaugh, 2012 OK 3, 270 P.3d 151 (2012)

 

“the plaintiff must prove that it had standing to foreclose when the complaint was filed” McLean v. JP Morgan Chase Bank Natl. Assn., 79 So.3d 170, 173 (Fla.App. 2012).

 

“U.S. Bank was required to establish, through admissible evidence, that it held the note and mortgage and so had standing to foreclose the mortgage before it would be entitled to summary judgment in its favor.” BAC Funding Consortium Inc. v. Jean-Jacques, 28 So. 3d 936 (Fla.App. 2010)

 

“Thus, because it failed to establish an interest in the note or mortgage at the time it filed suit, it had no standing to invoke the jurisdiction of the common pleas court.” Fed. Home Loan Mtge. Corp v. Schwartzwald, 2012-Ohio-5017, 134 Ohio St.3d 13 (2012)

 

“In the present case, the court ruled upon the motion for summary judgment without first resolving the factual issue of when the plaintiff took ownership and control of the note and, thus, whether it had subject matter jurisdiction. This court has recently concluded that when the jurisdiction of the court hinges on a factual determination regarding the plaintiff’s status as holder of the note at the time of the commencement of the action, the court must determine the pertinent facts necessary to ascertain whether jurisdiction existed and rule on the issue of standing before addressing the merits of the controversy. Equity One, Inc. v. Shivers, 125 Conn.App. 201, 206, 9 A.3d 379 (2010); see also Deutsche Bank National Trust Co. v. Bialobrzeski, 123 Conn.App. 791, 799-800, 3 A.3d 183 (2010); LaSalle Bank, National Assn. v. Bialobrzeski, 123 Conn.App. 781, 789-90, 3 A.3d 176 (2010). In light of the documents before the court, showing discrepancies as to the date of the transfer of the note, as well as the defendant’s argument that the plaintiff had not demonstrated that it was the holder of the note when this complaint was filed, the court improperly formed a legal conclusion without establishing the factual predicate for the court’s subject matter jurisdiction. Accordingly, we reverse and remand the case to the trial court for a hearing to ascertain the plaintiff’s status as the owner or holder of the subject note at the time the action was commenced, so that the court may properly determine whether it has subject matter jurisdiction.” Park National Bank v. 3333 Main, LLC, 127 Conn.App. 774, 15 A.3d 1150 (App. Ct. 2011).

 

“plaintiff presented no evidence of having possessed the underlying note prior to filing the complaint. If plaintiff did not have the note when it filed the original complaint, it lacked standing to do so, and it could not obtain standing by filing an amended complaint.” Deutsche Bank Nat. v. Mitchell, 422 N.J. Super. 214, 27 A.3d 1229 (2011)

 

“Because Movants failed to establish possession and an ownership interest in the notes, they are not shown to be the real party in interest, and they lack standing to bring the motions.” In re Wilhelm, 407 B.R. 392, 398 (Bankr. D. Idaho 2009)

 

“From the maker’s standpoint, therefore, it becomes essential to establish that the person who demands payment of a negotiable note, or to whom payment is made, is the duly qualified holder. Otherwise, the obligor is exposed to the risk of double payment, or at least to the expense of litigation incurred to prevent duplicative satisfaction of the instrument. These risks provide makers with a recognizable interest in demanding proof of chain of title. Consequently, plaintiffs here, as makers of the notes, may properly press defendant to establish its holder status.” In re Kemp, 440 B.R. 624 (Bankr. D. N. J. 2010)

 

B. 2007 Assignment of Deed of Trust – Instrument #207590. (Exhibit 12, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order.)

This assignment claims to assign all interest in our note and mortgage from Coldwell Banker Mortgage to JPMorgan Chase. This assignment is illegal and fraudulent for the following reasons:

1. It was knowingly filed falsely. Coldwell Banker Mortgage had already assigned its interest to Fannie Mae in 2002. It had nothing to assign. Nemo dat quod non habit. One cannot grant what one does not have. (Exhibit 9, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order regarding PHH Mortgage Services’ claims.)

2. JPMorgan Chase denied receiving the Note and Mortgage as a result of this assignment. (Exhibit 9, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order)

3. Outside of the Court and in accordance with federal law, JPMorgan Chase claims they purchased the loan on December 3, 2009, and as of May 21, 2018, claimed they were the investor and holder of our note and mortgage. (See Exhibits 17-19 of the Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order.)

4. Fannie Mae corroborates JPMorgan Chase’s claims of purchasing our loan on December 3, 2009, by stating their interest in our loan terminated on December 3, 2009. (Exhibit 13, Fannie Mae letter dated May 2, 2013, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order)

5. This is a robo-signed document as has been previously established and can be proven at trial.

C. 2010 Assignment of Deed of Trust and Deed of Trust Note – Instrument #214459. (Exhibit 14, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order)

This assignment claims to assign all interest in our note and mortgage from JPMorgan Chase to PHH Mortgage Services. This is the assignment PHH Mortgage Services is relying upon for its authority to have foreclosed. This assignment is fraudulent and illegal for the following reasons:

1. To the Idaho Courts, JPMorgan Chase stated they never received our note and mortgage and that they were a servicer only. JPMorgan Chase was granted Summary Judgment based on this claim because Judge Griffin determined “Chase initially serviced this loan. There was no contract between Chase and the Nickersons that has been presented to the Court…The Nickersons have not brought to the court’s attention any evidence of a contract…Nor did the court in its examination of the record find any such evidence.” Memorandum Opinion Re: Chase’s Motion for Summary Judgment, pg. 2 – filed 11-16-12. JPMorgan Chase claimed they had nothing to assign and Judge Griffin agreed, so according to JPMorgan Chase’s statements before the Court, this document was falsely fabricated and recorded to give PHH Mortgage Services a false right to foreclose. As such, this assignment is void and PHH Mortgage Services’ claim to foreclose is also rendered void because they have presented no evidence of receiving our note and mortgage. See Exhibit 9 regarding JPMorgan Chase’s denials. Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order.

2. PHH Mortgage Services filed felonious documents in the county land records to illegally pursue a non-judicial foreclosure in breach of the contract (Coldwell Banker Mortgage specifically agreed to a mortgage lien, not a deed of trust, and recognized the judicial foreclosure requirements associated with a mortgage). This violated 15 U.S.C. § 1692f as a debt collector may not take or threaten to take a non-judicial action to dispossess if by law they cannot take it. Because instrument #207590 (the void assignment from Coldwell Banker Mortgage to JPMorgan Chase) had been filed, PHH Mortgage Services filed this 2010 assignment to establish a false proof of ownership. Ex maleficio non oritur contractus. A contract cannot arise out of an illegal act. According to I.C. § 45-1505 (presented below), PHH Mortgage Services could not pursue the illegal non-judicial foreclosure in 2010, without all required assignments being in the county records. Therefore, Just Law and Clearwater County Land Title Company just created and recorded this one. This forged assignment, along with the other evidence of fraud contained in this memorandum in its entirety, establish PHH Mortgage Services has no standing to bring this complaint, had no standing to bring the complaint in the underlying foreclosure action, and is unable to establish a pima facie case for foreclosure or ejectment. “The burden of proving an assignment falls upon the party asserting rights thereunder…” (Cockerell, Id). “Moreover, giving homeowners – who have the most at stake and the most to lose – the ability to challenge improper loan assignments as being absolutely void will provide a proper incentive to lending institutions to employ due diligence to properly document assignments and confirm who currently holds a loan” (Sciarratta, Id). Further, the fraudulent nature of this document and the creation of it demonstrates PHH Mortgage Services’ willingness to fabricate false truth, commit fraud on the court, damage, and injure us. Therefore, refusing to verify and authenticate the legitimacy of this assignment prejudiced the previous judgments and this current ejectment action. Further, the rule of law has long upheld, no right to action can arise from an illegal act.

 

Allegans contraria non est audiendus.
One making contradictory statements is not to be heard.

 

Quod ab initio non valet in tractu temporis non convalescet
That which is bad in its commencement improves not by lapse of time.

 

I.C. § 45-1505. Foreclosure of trust deed, when. The trustee may foreclose a trust deed by advertisement and sale under this act if:

(1)  The trust deed, any assignments of the trust deed by the trustee or the beneficiary and any appointment of a successor trustee are recorded in mortgage records in the counties in which the property described in the deed is situated; and

 

3. Section 2 of this assignment impossibly, fraudulently and unlawfully names Just Law, Inc., as the Successor Trustee. According to section 24 of the alleged mortgage, the Lender had to appoint Just Law, Inc., as the Successor Trustee in order for Just law to conduct a non-judicial foreclosure. However, PHH Mortgage Services could not make the appointment until it had allegedly become the Lender. PHH Mortgage Services could not have become the alleged Lender until the assignment was complete. PHH Mortgage Services could not make Just Law, Inc., the Successor Trustee until after the assignment had taken place. Instrument #214460 is an appointment of trustee in which PHH Mortgage Services allegedly appoints Just Law as the Successor Trustee (Exhibit 15, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order). This appointment of trustee was executed 5 days before the alleged assignment was executed. The assignment of trustee document is fraudulent and false because it was executed prior in time to the alleged assignment that gave PHH Mortgage Services the right to execute it. Therefore, at the time of this alleged assignment, Just Law, Inc., was not the Successor Trustee and alleging they were the Successor Trustee in the assignment demonstrates fraud. This assignment is knowingly false and constitutes an illegal act. This act is not a nullity. I.C. § 18-3203. See also I.C. § 18-3601 Forgery Defined.

 

I.C. § 18-3203. Offering false or forged instrument for record states, “Every person who knowingly procures or offers any false or forged instrument to be filed, registered or recorded in any public office within this state, which instrument, if genuine, might be filed, or registered, or recorded under any law of this state, or of the United States, is guilty of a felony.”

 

Additionally, a mortgage does not have a Trustee and the appointment of one is further evidence of fraud and intent to deceive us, the Court, the World at Large, and Fannie Mae.

4. Whether or not Clearwater County will stand against the big banks or are willing to prosecute does not negate the fact PHH Mortgage Services and Just Law willingly committed a felonious act. The failure of law enforcement and officers of the court to file a formal charge does not mean a crime has not been committed. Rather, it demonstrates a complacency toward the presentation of illegalities or a lack of courage and seemingly available and useable resources to engage the big banks. Minatur innocentibus qui parcit nocentibus - He threatens the innocent who spares the guilty. Nemo punitur pro alieno delicto - No one is punished for the crime of another.

5. JPMorgan Chase and PHH Mortgage Services have failed to provide this 2010 assignment in response to federal requests for information, a QWR, or any other direct request. Only the attorneys of record have identified or referenced this instrument. This suggests neither JPMorgan Chase nor PHH Mortgage Services recognize this assignment as being valid and there is question as to whether either is aware of its existence.

 

            D. 2017 Idaho Assignment of Deed of Trust – Instrument #230960. (Exhibit 16, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order)

This second assignment from JPMorgan Chase to PHH Mortgage Services demonstrates the first assignment was fraudulent, unlawfully recorded in the county land records, and void for the reasons below, among other reasons as detailed in our pleadings in their entirety.

1. This assignment claims on its face that on March 1, 2017, (3 years after judgment) JPMorgan Chase was the holder of and had beneficial interest in our mortgage. Accordingly, the 2010 assignment never happened. Therefore, PHH Mortgage Services’ claim to own our note and mortgage based on this assignment is void since the assignment itself is void (Sciarratta, Id). Further, JPMorgan Chase sent a Notice of New Creditor in accordance with federal law claiming ownership as of December 3, 2009. PHH Mortgage Services never sent us a Notice of New Creditor. JPMorgan Chase’s claims of ownership as presented by new evidence reverse the 2012 summary judgment that found no contract with JPMorgan Chase existed, the 2014 summary judgment that PHH Mortgage Services received ownership from JPMorgan Chase in 2010, and the 2019 summary judgment that relies on the web of lies and deceit propagated in the underlying foreclosure judgment. It is time for the Court, Clearwater County, and the State of Idaho to distance themselves from the fraud committed by PHH Mortgage Services or be held liable as criminal accomplices. Qui non obstat quod obstare potest facere videtur - He who does not prevent what he is able to prevent, is considered as committing the thing. For the record, the 2010 assignment was caused to be filed even though it was known to be false and void. Only JPMorgan Chase, not PHH Mortgage Services, claimed ownership of our loan and sent the appropriate federal notifications. Therefore, PHH Mortgage Services is barred and estopped from claiming right to foreclose or any right to possession of our property. PHH Mortgage Services cannot claim injury when they did not comply or adhere to federal laws or notifications. Their false and fabricated claims are not supported in fact, reality, or law, and cannot be relied upon to enforce foreclosure or our dispossession.

2. This assignment contradicts the 2010 assignment by still identifying First American Title as the Trustee. Filing this 2017 assignment demonstrates JPMorgan Chase, by their actions and claims, obviously considered the 2010 assignment void. Regardless, this assignment invalidates the appointment of Just Law as Successor Trustee, exposes and corroborates all claims of fraud regarding the 2010 assignment, establishes a broken chain of title exists, demonstrates PHH Mortgage Services never had interest or authority to appoint Just Law as Successor Trustee in 2010, and proves PHH Mortgage Services’ false claims are malicious and intentional.

3. This assignment demonstrates the 2010 assignment is void and not intended to assign anything based on the facts asserted in JPMorgan Chase’s May 21, 2018, QWR response (Exhibit 19, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order): a) JPMorgan Chase is the owner and investor on the loan; and b) JPMorgan Chase explicitly states “servicing” of our loan transferred to Mortgage Service Center on February 5, 2010. This response specifically excluded any mention or evidence of our loan transferring from JPMorgan Chase to PHH Mortgage Services and affirmed our loan had not been sold by stating in reference to JPMorgan Chase, “The ownership of your loan may change from time to time during the loan term, but this is the current owner.” As detailed above, the 2010 assignment in which PHH Mortgage Services claims to have received interest in our note and mortgage is void. As such, PHH Mortgage Services’ action for foreclosure and this action for ejectment was and is fraud.

 

Moreover, giving homeowners – who have the most at stake and the most to lose – the ability to challenge improper loan assignments as being absolutely void will provide a proper incentive to lending institutions to employ due diligence to properly document assignments and confirm who currently holds a loan. ‘The consequences of wrongfully evicting someone from their home are too severe to be left unchecked.’”  Sciarratta, Id.

 

Fraus est celare fraudem. It is a fraud to conceal a fraud. This Court is in error to ignore the pleas of the county land records. The records are crying out fraud, fraud, fraud. It is this Court’s responsibility, moral obligation and sworn duty to listen. “The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.” Hazel-Atlas Co. v. Hartford Co., 322 US 238 at 246 (1944)

III. NEW EVIDENCE ESTABLISHES THE JUDGMENT AMOUNT IS INACCURATE, AND BASED ON UNLAWFUL, CONTRADICTORY, AND FRAUDULENT EVIDENCE.


Affirmantis est probare.
He who affirms must prove. Porter v. Stevens, 9 Cush., Mass.,535.

 

As a part of PHH Mortgage Services’ settlement agreement with the State of Idaho, PHH Mortgage Services agreed to uphold a set of servicing standards. The following is an excerpt from those standards which demonstrates our expectations and requests have been reasonable and represent the set standard for servicing requirements.

 

SERVICING STANDARDS

I. FORECLOSURE AND BANKRUPTCY INFORMATION AND DOCUMENTATION.

A. Standards for Documents Used in Foreclosure and Bankruptcy Proceedings.

1. Servicer shall ensure that factual assertions made in pleadings (complaint, counterclaim, cross-claim, answer, or similar pleadings), bankruptcy proofs of claim (including any facts provided by Servicer or based on information provided by Servicer that are included in any attachment and submitted to establish the truth of such facts) (“POC”), Declarations, affidavits, and sworn statements filed by or on behalf of Servicer in judicial foreclosures or bankruptcy proceedings and notices of default, notices of sale, and similar notices submitted by or on behalf of Servicer in non-judicial foreclosures are accurate and complete and are supported by competent and reliable evidence. Before a loan is referred to non-judicial foreclosure, Servicer shall ensure that such evidence (including all documents and records pertaining to the borrower’s loan status and loan information) has been reviewed to substantiate the borrower’s default and the right to foreclose. Servicer shall retain a copy of any and all documents and records which substantiate the initiation of a foreclosure action, including copies of all documents related to non-judicial foreclosure actions. (emphasis added)

3…Affiants shall confirm that they have reviewed competent and reliable evidence to substantiate the borrower’s default and the right to foreclose, including borrower’s loan status and required loan ownership information.

12. Servicer shall not rely on an affidavit of indebtedness or similar affidavit, sworn statement, or Declaration filed in a pending pre-judgment judicial foreclosure or bankruptcy proceeding which (a) was required to be based on the affiant’s review and personal knowledge of its accuracy but was not, (b) was not, when so required, properly notarized, or (c) contained materially inaccurate information in order to obtain a judgment of foreclosure, order of sale, relief from the automatic stay, or other relief in bankruptcy. In pending cases in which such affidavits, sworn statements, or Declarations may have been filed, Servicer shall, at Servicer’s expense, take appropriate action, consistent with state and federal law and court procedure, to substitute such affidavits with new affidavits and provide appropriate written notice to the borrower or borrower’s counsel. In pending post-judgment, pre-sale cases in judicial foreclosure proceedings in which an affidavit or sworn statement was filed which was required to be based on the affiant’s review and personal knowledge of its accuracy but may not have been, or that may not have, when so required, been properly notarized, and such affidavit or sworn statement has not been refiled, Servicer, unless prohibited by state or local law or court rule, will provide written notice to borrower at borrower’s address of record or borrower’s counsel prior to proceeding with a foreclosure sale or eviction proceeding. Servicing Standards, Exhibit A, Settlement Agreement and Consent Order, PHH Mortgage Corporation

 

Prior to proceeding with this ejectment action, PHH Mortgage Services did not provide a correct affidavit. We request this Court, at the very least, immediately halt these proceedings because the affidavit used by PHH Mortgage Services to support their claims is not valid and in violation of the Servicing Standards in the recent Settlement Agreement PHH Mortgage Services consented to with the State of Idaho.

As demonstrated below, the affidavit relied on by PHH Mortgage Services to obtain a judgment for foreclosure embodies all three illegalities with affidavits that PHH Mortgage Services has agreed to correct – a) it was not based upon personal knowledge (I.R.C.P. 56), b) it was not validly notarized (I.C. § 51-109, I.C. § 55-716, New Jersey Statute § 52:7-19 – See below), and c) it contained materially inaccurate information. Once again, the Settlement Agreement PHH Mortgage Services agreed to, corroborates our claims regarding PHH Mortgage Services’ unlawful and fraudulently prosecuted foreclosure and ejectment against us. Now is the time for the Idaho Judicial system to correct its errors and let justice prevail.

 

“In response to your letter dated October 20, 2014
Idaho code 51-109 and 55-716 both reference information on a Notary Public's signature. Below are excerpt from those codes.

I. C. § 51-109. FORMS FOR NOTARIAL ACTS. (1) Certificates of acknowledgment shall substantially conform to the forms set forth in sections 55-710 through 55-715, Idaho Code.

(2) An oath or affirmation, which is in writing, shall be signed by the person who takes it, and the notary public shall enter thereunder substantially the following:

"State of Idaho )

)ss.

County of..... )

Subscribed and sworn (or affirmed) before me this ..... day of .......... , .... .

.................... (official signature and seal)"

I.C. § 55-716. Authentication of certificate. Officers taking and certifying acknowledgments or

proof of instruments for record must authenticate their certificates by affixing thereto their signatures, followed by the names of their offices; also their seals of office, if by the laws of the territory, state or country where the acknowledgment or proof is taken, or by authority of which they are acting, they are required to have official seals.

(now repealed)”
Letter from Debbie Farnsworth, Notary Public Department, State of Idaho, October 21, 2014

As a preface to the discussion below one should realize that a true review of the account history records as presented demonstrates no matter how PHH Mortgage Services chooses to twist the records they still demonstrate the truth – we were not in default, we made all payments, and we were due a refund when servicing transferred to PHH Mortgage Services (Exhibit 21 Notice of No Default, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order). Further, the federal Independent Foreclosure Review has corroborated JPMorgan Chase made errors, misrepresentations, and deficiencies in our mortgage servicing and in this foreclosure process (Exhibit 22 Independent Foreclosure Review Letter, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order).

PHH Mortgage Services, to attempt to demonstrate we were in default in the underlying foreclosure action, analyzed JPMorgan Chase’s alleged account history. After allegedly reviewing the account history, PHH Mortgage Services’ hired robo-witness, Ron Casperite, submitted his nonsensical conclusions via an invalidly and unlawfully notarized, and therefore inadmissible, affidavit, that was not based on personal knowledge and failed all standards of best evidence or even admissible business records.

 

Best Evidence
“Best Evidence Rule” is that highest available degree of proof must be produced. Cheadle v. Bardwell, 95 Mont. 299, 26 P.2d 336.


The best evidence of a fact is the testimony of a person who knows. State v. Normandale, 154 La. 523, 97 So. 798, 799 (mother could testify to the date of her daughter's birth, as against an objection that the baptismal certificate or the registry was the best evidence).
Black’s Law Dictionary 4th Edition

 

Evidence of the highest quality available
Black’s Law Dictionary 10th Edition

PHH Mortgage Services, nor their hired robo-witness, Ron Casperite, were parties to the transactions, communications, or creation of records. We were present, eye witnesses, parties to the transactions, have offered witness testimony of those who were present when the records were created, and have pleaded for the notations and records of the employees who helped complete the transactions to be allowed to speak. It is prejudicial, demonstrates extreme bias, and can be accurately defined as an absurdity for the Court to claim our personal testimony is conclusory. Certainly, men of ordinary intelligence and discretion can conclude it is an absurdity to accept as fact an improperly notarized document with inaccurate and contradictory calculations specifically prepared for litigation by a hired witness without personal knowledge when it is disputed by those with firsthand knowledge.

 

Absurdity
Anything which is so irrational, unnatural, or inconvenient that it cannot be supposed to have

been within the intention of men of ordinary intelligence and discretion. Black, Interp. Laws,

104; Graves v. Scales, 172 N.C. 915, 90 S.E. 439; obviously and flatly opposed to the manifest

truth; inconsistent with the plain dictates of common sense; logically contradictory; nonsensical; ridiculous. Wade v. Empire Dist. Electric Co., 98 Kan. 366, 158 P. 28, 30.
Black’s Law Dictionary 4th Edition

Uno absurdo dato, infinita sequuntur. 1 Coke, 102.
One absurdity being allowed, an infinity follows.

REDUCTIO AD ABSURDUM. Lat. In logic. - The method of disproving an argument by showing that it leads to an absurd consequence.

Further, Ron Casperite claimed he reviewed JPMorgan Chase’s account history. However, when he created his illustrative account history, he failed to acknowledge the principal balance detailed on JPMorgan Chase’s account history and made up his own. He concluded that instead of 14 missed payments as PHH Mortgage Services claimed prior to foreclosure that we had allegedly missed 9 payments ($11,000 worth of errors created a dispute regarding default and certainly established and created a genuine issue of fact). True analysis shows we missed none (Truth and Exhibit 21). As a part of his analysis he also provided an illustrative account history that showed after correcting his false claims of the 5 missed payments, the principal balance on the account should have been $259,983.72. However, in his unlawful affidavit, he ignored both JPMorgan Chase’s and his own illustrative principal balances and stuck with PHH Mortgage Services’ original complaint that the principal balance on the account was $261,170.62. Even though PHH Mortgage Services admitted their claim of default was in error, they still used their original principal amount from their complaint as the basis for the judgment amount and the subsequent sale amount. Therefore, PHH Mortgage Services once again committed fraud on us and the Court by not applying the found payments to the principal amount that the judgment was based upon. Suppressio veri expressio falsi. A suppression of truth is equivalent to an expression of falsehood.

This inaccuracy of PHH Mortgage Services’ records cannot just be glossed over as PHH Mortgage Services and the Idaho Courts have done. The very fact there was a discrepancy in the default amount created a genuine issue of material fact that prohibited summary judgment and established our need to individually and independently review our records and allow our experts to review and analyze the records for accuracy and authenticity. These errors corroborate our claims the records presented are not accurate and that no default whatsoever exists. Further, because PHH Mortgage Services failed to correct the default amount claimed and provide notice of that correction, they were barred by waiver and estopped from continuing to pursue their fraudulent foreclosure.

As mentioned in the previous paragraphs, to support their claim for foreclosure and establish the judgment amount that directed the sale amount, PHH Mortgage Services used the Second Affidavit of Ronald E. Casperite In Support of PHH Mortgage Services’ Second Motion For Summary Judgment. Ron Casperite’s affidavit is unlawful and fraudulent, contains contradictory statements, and was not legally admissible evidence. According to I.R.C.P. 56, an affidavit used to support or oppose a summary judgment motion must be made on personal knowledge and set out facts that would be admissible in evidence. Ron Casperite did not allege or have personal knowledge of how JPMorgan Chase generated the account history, or the facts contained within it. Ron Casperite was hired to prepare records for litigation, not in the ordinary course of business. Therefore, his testimony regarding the account history is inadmissible evidence.

 

Personal Knowledge
Knowledge gained through firsthand observation or experience, as distinguished from a belief based on what someone else has said.
Black’s Law Dictionary 10th Edition

Business-Records Exception
A hearsay exception allowing business records (such as reports or memoranda) to be admitted into evidence if they were prepared in the ordinary course of business. If there is good reason to doubt a record’s reliability (e.g., the record was prepared in anticipation of litigation), the exception will not apply.

Black’s Law Dictionary 10th Edition

 

Ron Casperite’s affidavit was, among other reasons, unlawful and invalid because the New Jersey notary affixed the seal but did not sign the affidavit in violation of New Jersey Statute § 52:7-19. This invalid notarization was confirmed by James F. Zombeck – Notary Unit Supervisor for the State of New Jersey Department of the Treasury Division of Revenue & Enterprise Services. In his letter dated June 9, 2014, James F. Zombeck stated,

 

“Upon review of the SECOND AFFIDAVIT OF RONALD E. CASPERITE that you provided, it is apparent that the notarization is invalid. It lacks the signature of the Notary Public.


NJSAS 52:7-19 states: Each notary public, in addition to subscribing his autograph signature to any jurat upon the administration of any oath or the taking of any acknowledgement or proof, shall affix thereto his name in such a manner and by such means, including, but not limited to, printing, typing, or impressing by seal or mechanical stamp, as will enable the Secretary of State easily to read said name.”
Letter from James F. Zombeck, Notary Unit Supervisor, State of New Jersey, June 9, 2014

 

(Exhibit 20, Affidavit of Charles Nickerson In Support of Motion To Reconsider Summary Judgment Order). This omission constitutes notary fraud which is considered a crime.

 

A signed notarization is the ultimate assurance upon which the whole world is entitled to rely that the proper person signed a document on the stated day and place…a false notarization is a crime and undermines the integrity of our institutions upon which all must rely upon the faithful fulfillment of the notary’s oath. Klem v. Washington Mut. Bank, 295 P.3d 1179, 176 Wash. 2d 771 (2013).

 

Further, notaries are public officials and according to www.nationalnotary.org

 

In performing notarial acts, Notaries must always give precedence to the requirements of law over any other consideration – even the dictates or expectations of an employer, client, friend or family member. Law in all jurisdictions requires the document signer to appear in person before the Notary at the time of notarization…Notaries must perform their official duties with an appropriate degree of respect and seriousness for the indispensable role they play in our legal system as a trusted, impartial and official third party.

 

In addition, as discussed above, Ron Casperite reduced the claim of default by reducing the number of missed payments, an over $11,000 difference but failed to apply them. PHH Mortgage Services refused to apply the 5 payments found to the principal on the account. This is one of the very things PHH Mortgage Services was fined for by the State of Idaho and 46 other states.

 

“This settlement demonstrates a core responsibility of state regulators to protect consumers from unlawful business practices,” said Gavin Gee, director of the Idaho Department of Finance. “With this settlement, we are saying that states will not tolerate mortgage servicers that harm consumers by failing to process mortgage payments according to the law. As part of this settlement, states are requiring corrective actions so that PHH’s future mortgage servicing activities ensure timely and accurate processing of loan payments.” Idaho Department of Finance – January 3, 2018, News Release.

 

These errors and omissions demonstrate PHH Mortgage Services’ evidence presented to the court is tainted by fraud and rooted in known to them illegal activity – not applying mortgage payments in accordance with the law. The Idaho Department of Finance confirmed this was a habitual, unlawful business practice of PHH Mortgage Services.

Further, Ron Casperite perjured himself because in his first affidavit he claimed we missed 13 payments and in his second affidavit he claimed we missed 9 payments. Allergans contrarius non est audiendus - One making contradictory statements is not to be heard.

Even further, Ron Casperite treated JPMorgan Chase’s account history as accurate enough to be able to determine the number of missed payments but did not consider the principal balance on the account as accurate enough to reference it.

Additionally, and in reality, Ron Casperite’s testimony regarding JPMorgan Chase’s account history is not admissible evidence in any court of law. He was never employed by JPMorgan Chase and lacks particular knowledge of JPMorgan Chase’s record keeping procedures. Without such personal knowledge, he could not substantiate when the records were made, whether the information they contain was derived from a person with knowledge, whether JPMorgan Chase regularly made such records, or, if in fact, the records belonged to JPMorgan Chase in the first place.  Further, PHH Mortgage Services was not the owner or creator of the business records, or even a party to their creation, and were not able to attest to the truthfulness and veracity of their contents. Additionally, PHH Mortgage Services admitted in discovery they have no knowledge of payments made or not made to JPMorgan Chase to avert production of account records that defeat all claims of default.

 

“On the other hand, if not properly authenticated, loan payment history printouts and other evidence of the amount due on a loan are inadmissible hearsay. For example, in Glarum, the court reversed summary judgment for the bank because the bank's sole witness testified from a bank printout without first establishing the hearsay exception for business records. There, the witness/affiant was a "specialist" for the loan servicer and his affidavit stated that he obtained the amount of indebtedness from "his company's computer system." Id. at 782. However, the specialist "did not know who, how, or when the data entries were made into [the servicer's] computer system" and "could not state if the records were made in the regular course of business." Id. The specialist had even less knowledge about the business practices of the prior loan servicer, the apparent source of the data upon which his own company relied to open the file. Accordingly, both the witness' testimony and the affidavit containing the data for the amount owing were inadmissible hearsay, unqualified for the business records exception under section 90.803(6)(a). Because there was no other competent evidence to prove the amount due and owing, summary judgment was reversed.” Burdeshaw v. Bank of New York Mellon, 148 So.3d 819 (Fla. Dist. Court of Appeals, 1st Dist. 2014)

 

Lastly, PHH Mortgage Services is in violation of the Servicing Standards they agreed to abide by in their Settlement Agreement with the State of Idaho that requires them to substitute incorrect affidavits with new affidavits. PHH Mortgage Services filed false and inadmissible affidavits and documents to support their fraudulent claims, so they could prejudicially pursue foreclosure. Nullus commodum capere potest ex sua injuria propria. No one can derive an advantage from his own wrong. If PHH Mortgage Services and the court had allowed truth, facts, and evidence that PHH Mortgage Services has no ownership interest in our note and mortgage, we owe PHH Mortgage Services no debt, and we did not default on any debt regarding the alleged mortgage, to be exposed, the law would have barred PHH Mortgage Services from foreclosing on our property and ended their abuse of our family and these court proceedings long ago. PHH Mortgage Services’ sloppy and fraudulent business practices have damaged and injured us, among other things, by loss of time, money, resources, access to our equity, unhindered enjoyment of our property, peace of mind, and the freedom to pursue happiness outside of mandated court proceedings. PHH Mortgage Services complying with the settlement agreement would have provided a path to resolution for this matter long ago. Instead, PHH Mortgage Services prevented due process, thwarted discovery, escalated the injuries suffered, and prolonged the damages inflicted on us unnecessarily. Therefore, the summary judgment order must be vacated, and PHH Mortgage Services’ ejectment action dismissed with prejudice.

 

IV. NEW EVIDENCE OF NO DEFAULT RENDERS JUDGMENTS FOR FORECLOSURE AND ENFORCEMENT EFFORTS MOOT AND WITHOUT AUTHORITY.

 

Nemo debet rem suam sine facto autdefectu suo amittere.
No man ought to lose his property without his own act or default.

 

The Notice of No Default as found in Exhibit 21 of the Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment is based on new evidence received from JPMorgan Chase and PHH Mortgage Services after the foreclosure judgment and sale. This evidence secured through our ongoing discovery efforts demonstrably shows all payments required to be made had been received when PHH Mortgage Services began servicing our loan in February 2010.

Since PHH Mortgage Services first began servicing our loan in February 2010, PHH Mortgage Services has refused all attempts by us, our attorney, and third parties to tender payments on the loan. Reprobata pecunia leberat solventem - Money refused releases the debtor. Impotentia excusat legem - Impossibility is an excuse in the law. Nemo tenetur ad impossibile - No one is required to do what is impossible. This Notice of No Default also corroborates and proves PHH Mortgage Services’ claims of default are inaccurate, invalid, fraudulent, and maliciously pursued.

The Notice of No Default also provides reason why PHH Mortgage Services’ failure to mitigate damages or meet condition precedents prior to initiating foreclosure or accelerating any alleged debt was wrong and how it injured us. Refusing to accept payments, failing to provide proper notifications (i.e. lawfully valid or contractually binding notices of default or acceleration), and refusing to conduct research to validate any alleged default bars PHH Mortgage Services from complaining or gaining any rights to act through this post foreclosure complaint.

By law and sound reason, PHH Mortgage Services’ actions and inactions breached the alleged contract and any alleged rights to act, and knowingly violated federal, state, and common laws and governing regulations.

 

The attorney who attempts by personal influence to control a judge or jury in their decision in a pending case, or who merely holds himself out as able to do so, whether or not he actually makes the attempt, and whether or not he succeeds or fails in the attempt, in short, an apostate lawyer, who is false to the lawyers' creed that justice shall be undefiled, is ejected from the courts, and as a lawyer ceases to exist. [citations omitted] The client who with evil intent employs such an agent fares no better in the instant case. To him also the doors of the courts are closed. From the moment that he ceases to depend upon the justice of his case and seeks discriminatory and favored treatment, he becomes a corrupter of the Government itself and is fortunate if he loses no more than the rights he seeks to obtain. Root Refining Co. v. Universal Oil Products Co., 169 F. 2d 514 (Circuit Court of Appeals, 3rd Circuit 1948)

 

Further, PHH Mortgage Services actively refused to research or validate any alleged default prior to initiating foreclosure and when the inaccuracy of the default claimed in their complaint was proven in error. Affirmanti non neganti incumbit probation - The burden of proof is upon him who affirms, not upon him who denies. This breached any existing contract and all governing statutes regarding default and foreclosure. Now post foreclosure, PHH Mortgage Services requests this Court provide a cloak of res judicata in hopes of forever concealing and burying the criminally abusive debt collection and processes they subjected us to and inflicted upon us. We have chosen to stand our ground against such oppression and tyranny with the highest debt a man can be called to pay.

Section 22 of the alleged mortgage states, “Lender shall give notice to Borrower prior to acceleration.” In section 20 of the alleged mortgage the second paragraph states.

 

Neither borrower nor Lender may commence, join, or be joined to any judicial action (as either an individual litigant or the member of a class) that arises from the other party’s actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action.

 

PHH Mortgage Services as the alleged lender failed to provide a lawfully valid and contractually binding notice of default or acceleration prior to initiating foreclosure in violation of federal law and in breach of contract. 15 U.S.C. § 1692g; 12 U.S.C. § 2605(e)(2)(B); 12 C.F.R. § 1024.35. This inaction violated not only federal law and the alleged contract, but also fails to mitigate damages and meet conditions precedents that could permit PHH Mortgage Services to make any complaints as an alleged lender.

During the litigation process, PHH Mortgage Services was forced to admit their alleged default in the original complaint was in error. According to the contract, all foreclosure efforts should have ceased and a new notice of default with the corrected alleged default amount should have been provided by PHH Mortgage Services. However, PHH Mortgage Services did not adhere to the contract by providing a new notice of default, admit substantial payment funds were still sitting in suspense and escrow accounts, or even apply the over $11,000 of found payments against the principle balance. PHH Mortgage Services’ complete lack of honesty and integrity in dealing with us and the judicial process constitutes fraud on the Court and is in breach of contract.

 

Conditions Precedent in Alleged Contract

1. Lender must apply all unapplied funds prior to foreclosure
“If not applied earlier, such funds will be applied to the outstanding principal balance under the Note immediately prior to foreclosure.”
Section 1, Alleged Mortgage

2. Lender must notify us and give us opportunity for resolution prior to a judicial action
“Neither Borrower nor Lender may commence, join, or be joined to any judicial action (as either an individual litigant or the member of a class) that arises from the other party’s actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action.”
Section 20, Alleged Mortgage

3. Lender must give notice prior to acceleration
“Lender shall give notice to Borrower prior to acceleration.”
Section 22, Alleged Mortgage

4. Lender must obey all applicable laws
“This Security Instrument shall be governed by federal law and the law of the jurisdiction in which the Property is located. All rights and obligations contained in the Security Instrument are subject to any requirements and limitations of Applicable Law.”
Section 16, Alleged Mortgage

(I)‘Applicable law’ means all controlling applicable federal, state and local statutes, regulations, ordinances and administrative rules and orders (that have the effect of law) as well as all applicable final, non-appealable judicial opinions.
Definitions, Alleged Mortgage

 

New evidence demonstrates PHH Mortgage Services did not own our property when they initiated this foreclosure (Exhibit 16, Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment). Thus, PHH Mortgage Services has no right to complain whether a default did or did not occur, and the true Lender failed to meet conditions precedents regarding ownership, default, and right to act. No ownership prevented PHH Mortgage Services from complaining and establishes the true Lender never provided us with any alleged default claims or opportunities to cure per the contract. PHH Mortgage Services were not the business record owners and admitted during litigation they had no knowledge of payments made or not made to the previous Servicer and presumed Lender. A review of our true account records will prove the fraud is rampant. Thousands of dollars held in suspense accounts were transferred from one Servicer to another without any regards to rules and regulations surrounding payment processing, ethical debt collection, or the Servicer’s responsibility to apply tendered payments to the principle balance prior to initiating foreclosure. These moneys were intentionally and maliciously hidden to force foreclosure and steal equity. Further, no accurate or proper notice of default or acceleration were ever offered, nor could there be, as no default existed, and PHH Mortgage Services had no rights to accelerate. Exhibit 21 of the Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment is a Notice of No Default based on new evidence received from JPMorgan Chase and PHH Mortgage Services. This evidence demonstrably shows that at the time PHH Mortgage Services began servicing our loan in February 2010, we were current, had made all payments required to be made, and PHH Mortgage Services’ claims of default were inaccurate, not valid, fraudulent, and maliciously pursued.

As detailed above, new evidence secured as part of our ongoing discovery efforts further supports no default existed and corroborates PHH Mortgage Services has colluded to hide, deceive, misrepresent, misappropriate, and fraudulently conceal all truths about our payment history. Our requests to review and analyze account records kept in the normal course of business have been procedurally prevented and quashed. We did not default and all truth, facts, admissible testimony, and authentic evidence support our claims of no default. Per law, PHH Mortgage Services and JPMorgan Chase have forfeited any rights to claim default by their actions, inactions, and false claims. Nonetheless, even their false claims prove we made every payment we were required or allowed to make and that we did not default. We hereby insert Exhibit 21 Notice of No Default - Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order in this argument in its entirety. Therefore, we request the Summary Judgment Order be vacated, the foreclosure sale set aside, our claims reinstated, and our case be allowed to proceed to trial.

 

V. THIS COURT HAS THE POWER TO ENTERTAIN AN INDEPENDENT ACTION TO RELIEVE A PARTY FROM A JUDGMENT, ORDER, OR PROCEEDING, AND TO SET ASIDE JUDGMENT FOR FRAUD ON THE COURT

 

First, to clarify, we are not asking the Court for relief based on a 60(b) motion or bringing a motion under 60(b). We referenced this rule to point out the rules of civil procedure do not prohibit the Court from considering an independent action to relieve a party from judgment or set aside a judgment for fraud on the Court. We are not invoking our right to file a motion based on a 60(b) at this time, and we hereby reserve our right to bring a 60(b) motion should justice so require. We request the Court not seek to convert this motion into a I.R.C.P. 60(b) at this time.

The Court states, its “right to set aside a judgment under I.R.C.P. 60 is within its discretion.” Summary Judgment Order, p. 5. The Court then goes on to discuss various sections of I.R.C.P 60 but fails to mention the one of the two sections we requested relief under in our Answer, Counterclaim, and Demand for Jury Trial. (Note: at the time we filed our answer and counterclaim, we were unaware that I.RC.P. 60 had undergone significant change) I.R.C.P 60(b) used to state in part:

 

This rule does not limit the power of a court to: (i) entertain an independent action to relieve a party from a judgment, order or proceeding,…. or (iii) to set aside a judgment for fraud upon the court.

The current corresponding rule is now I.R.C.P. 60(d) and states:

 

This rule does not limit a court’s power to:

(1) entertain an independent action to relieve a party from a judgment, order or proceeding;

(3) set aside a judgment for fraud on the court.

 

The court ignored the powers granted to it in I.R.C.P. 60(d)(1) in its discussion of I.R.C.P. 60. The language cited in our answer and counterclaim is representative of I.R.C.P. 60(d)(1).

 

Equal justice under the law

I.R.C.P. 60(b) states, “This rule does not limit the power of a court to: (i) entertain an independent action to relieve a party from a judgment, order or proceeding, … or (iii) to set aside a judgment for fraud upon the court.” This is now an independent action in which we may be relieved from the prior judgment. Answer, Counterclaim and Demand for Jury Trial, p.4 Paragraph D.

 

The right and need to set aside this summary judgment are firmly supported by hundreds of years of supporting case history. Notable and quotable interpretations from the following cases lend authoritative support and judicial agreement to compel this Court to set aside judgment and relieve us from the unfounded burdens inflicted by previous judgments.

 

“There is no question of the general doctrine that fraud vitiates the most solemn contracts, documents, and even judgments.” United States v. Throckmorton, 98 US 61 (Supreme Court 1878)

 

“Equitable relief against fraudulent judgments is not of statutory creation. It is a judicially devised remedy fashioned to relieve hardships which, from time to time, arise from a hard and fast adherence to another court-made rule, the general rule that judgments should not be disturbed after the term of their entry has expired. Created to avert the evils of archaic rigidity, this equitable procedure has always been characterized by flexibility which enables it to meet new situations which demand equitable intervention, and to accord all the relief necessary to correct the particular injustices involved in these situations.” Hazel-Atlas Co. v. Hartford Co., 322 US 238 (1944)

 

“Professor Moore submits that the concept should "embrace only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." Id. at 515 (footnote omitted)…While an attorney ‘should represent his client with singular loyalty that loyalty obviously does not demand that he act dishonestly or fraudulently; on the contrary his loyalty to the court, as an officer thereof, demands integrity and honest dealing with the court. And when he departs from that standard in the conduct of a case he perpetrates a fraud upon the court’." 7 Moore, supra, at 513 (footnote omitted). Kupferman v. Consolidated Research & Mfg. Corp., 459 F. 2d 1072 at 1078 (2nd Circuit, 1972)

 

“the law in Idaho is that an action for relief on the grounds of fraud will not be "deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud." I.C. § 5218.” Hall v. Forsloff, 124 Idaho 771, 864 P. 2d 609 (1993)

 

“It is said that, were it appears that a judgment was taken against appellant through the negligence of an attorney who had been employed by such party, nothing is left to the discretion of the court, and the judgment must be set aside.” Pierce v. Vialpando, 78 Idaho 274, 301, P .2d 1099 (1956)

 

"[W]hen a judgment is shown to have been procured by fraud upon the court, no worthwhile interest is served in protecting the judgment." Id. at 653, 218 P.3d at 858 (internal quotation marks omitted). Estate of Adams ex rel. Adams v. Fallini, 132 Nev.Adv.Op. 81, 386 P. 3d 621 at 625 (2016)

 

“[T]he law favors discovery and correction of corruption of the judicial process even more than it requires an end to lawsuits.”

Lockwood v. Bowles, 46 F.R.D. 625, 634 (D.D.C. 1969)

 

“The requisite fraud on the court occurs where ‘it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party's claim or defense’." Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989). from Cox v. Burke, 706 So. 2d 43 at 46 (Fla: Dist. Court of Appeals, 5th Dist. 1998)

 

This argument completely ignores the inherent power of a court to inquire into the integrity of its own judgments. Such a judgment implies the prior existence of a justiciable case or controversy between opposing litigants; but when the controversy has been terminated by a judgment, its freedom from fraud may always be the subject of further judicial inquiry; and the general rule that courts do not set aside their judgments after the term at which they were rendered has no application. The matter is not one of merely private concern subject to the action or inaction of the litigants, but is one of vast public importance, so that it becomes immaterial that the injured party may have been derelict in bringing the fault to the court's attention.

In regards to fraud on the court, “Indeed these facts not only justify the inquiry but impose upon us the duty to make it, even if no party to the original cause should be willing to cooperate, to the end that the records of the court might be purged of fraud, if any should be found to exist.” Root Refining Co. v. Universal Oil Products Co., 169 F. 2d 514 (Circuit Court of Appeals, 3rd Circuit 1948)

 

The truth has never been adjudicated or even considered.

This Court’s finding the “Nickersons have claimed from the beginning of the precursor lawsuit that PHH did not have the right to foreclose their loan. This issue has been adjudicated,” (Judge FitzMaurice, 2019) is a warped and twisted mischaracterization of the facts of the case. Due to fraudulent concealment and abusive discovery, evidence that JPMorgan Chase still owned the note and mortgage was not discovered until after the 2014 summary judgment hearing and just shortly before final judgment. This evidence was then procedurally prevented from being introduced or considered in the prior lawsuit, as demonstrated throughout this memorandum in its entirety. In addition, our Memorandum in Support of Motion to Compel and Motion to Determine Sufficiency of Answers or Objections, in its entirety, clearly details why ongoing discovery is critical and why it could not have been obtained previously. Further, the facts demonstrate summary judgment was granted to JPMorgan Chase, partial summary judgment to PHH Mortgage Services, and discovery closed through concealment, deceit, and admitted attorney negligence. Our path to a full and fair contest based on the merits of the case was untimely closed and procedurally blocked.

Post foreclosure action and enforcement of ejectment claims are independent of the foreclosure proceedings. Our claims of fraud and for clear title are independent actions to that of the underlying foreclosure action. As such, it is well within the jurisdiction of this Court to allow these actions to proceed to trial in accordance with I.R.C.P. 60(d)(1). Given the severity of the damages and injuries suffered, the finality of the loss of our property rights, and the pending threat and injury to our persons, it is unfair and unjust to deny these claims their day in court. Justitia nemini neganda est - Justice is to be denied to no one. In addition, our claims are not barred by the doctrine of res judicata as demonstrated throughout this memorandum because they are new claims that did not accrue until at least May 21, 2018 – four years after summary judgment for foreclosure.

 

Of course, courts have long abided the “unremarkable principle” that “[c]laims arising subsequent to a prior action…are not barred by res judicata regardless of whether they are premised on facts representing a continuance of the same ‘course of conduct.’” (citations omitted) earlier judgment “cannot be given the effect of extinguishing claims which did not even then exist” Darney, Id.

 

Therefore, we request this court vacate its Summary Judgment Order, set aside the foreclosure sale, reinstate our claims, compel discovery, and allow this action to proceed to trial.

 

VI. MANIFEST INJUSTICE AND CLEARLY ERRONEOUS FINDINGS REQUIRE RELIEF FROM ORDERS, JUDGMENTS AND MALICIOUS PERSECUTION.

 

Contradictory findings demonstrate genuine issues of material fact and disputes most certainly exist, but Idaho Courts have prejudicially ignored this common-sense conclusion and aligned the Idaho judiciary with nonsensical determinations that serve not the homeowners or freedom lovers of Idaho. These renderings have allowed false claims, fraudulent documents, and procedural manipulation to render court findings in this matter more tyrannical and exploitive than protective or preservative.

All laws are in place to save our ranch, end this assault on our family, and order manifest consequences sufficient to deter PHH Mortgage Services and their accomplices from ever entering the borders of Idaho to assault an Idaho homeowner again. This foreclosure attempt from its very conception comprehensively demonstrates the risks and dangers of regulatory failure, procedural manipulation, systemic overreach, and judicial tyranny. Failing to consider evidence within the chambers of the Court that prove truth is being quashed and fraudulently concealed causes evil to prosper, freedom to be incarcerated, and justice to die in the streets. One must listen to hear, hear to understand, and understand to rule with wisdom. Dispossessing an innocent family from their ranch by summary judgment, without a jury, by denying due process, without proof of ownership, in violation of regulatory and statutory laws, with contradictory claims, evidence and findings, with the knowledge that a full and fair contest has not occurred, defies the very purpose, relevance, and utility of the judiciary. The right to and the right not to are the cornerstones of freedom. The right to believe or not to believe. The right to own property and for others not to take it from you without your consent. The right to due process when others make accusations that are not true. This is freedom. This is America. This is what the Idaho Courts are supposed to uphold.

The illegalities detailed in this document and all previous pleadings and filings surrounding this foreclosure are incorporated in this argument in their entirety. Manifest injustices and erroneous judgments have plagued this foreclosure attempt from its inception. The following injustices and errors, though not comprehensive, have occurred in this ejectment action specifically.

This Court denied our motion for reconsideration without considering the noticed memorandum or affidavit.
This Court applied res judicata for claims and issues that had not even happened or occurred yet.

This Court quashed our discovery efforts to prevent exposure of fraud, error, and exposure with a premature summary judgment.

This Court granted summary judgment and denied us right to a jury trial in violation of the Idaho and United States Constitutions.

This Court arbitrarily determined a grotesquely inadequate sale price was adequate.

This Court refused requests for continuance to expand the factual record of the case and properly prepare argument.

This Court allowed an expired Writ of Execution to grant authority to sell our home.

 

The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful. State v. DiGuilio, 491 So. 2d 1129 (1986)

 

Had the judiciary stepped forward to uphold the law, protect the innocent, punish the wayward, incarcerate the criminal, and preserve the homeland, this nightmare would have ended long ago. Idaho could have enjoyed the fruits of peaceful dispute resolution for the past ten years. Wasted judicial efforts and resources could have been re-directed to community service and development. Trust and stability could have been fostered between the judiciary and Idaho homeowners in lieu of distrust, disdain, and dysfunctional disconnects between the public and the judicial branch.

We pray the Clearwater County judiciary and those who hold them accountable have learned from our pain and suffering and that the stands we have taken for religious freedom, property rights, and due process will somehow pave the way for renewed freedom, liberty and justice. May God render to each man according to his deeds, and may God be merciful and gracious to us all.

 

CONCLUSION

 

United States Constitution
No person shall…be deprived of life, liberty or property without due process of law.
Fifth Amendment of the United States Constitution

 

Idaho Constitution

No person shall…be deprived of life, liberty or property without due process of law.

Idaho Constitution Article 1 Section 13

 

As if the above illegalities were not enough to secure our property rights and require this Court to reverse all adversarial judgments against us, additional questions of fact exist as to whether PHH Mortgage Services can be the real party in interest in this ejectment action. The Sheriff’s Deed is issued to PHH Mortgage. The address separates the identity of the two with a care of PHH Mortgage Services statement in the mail to address. PHH Mortgage Corporation and PHH Mortgage Services have provided no evidence to the Court that they are the same entity. PHH Mortgage Services, not PHH Mortgage Corporation, appeared in this ejectment action. New evidence secured through compelled discovery and requests for information through the Idaho Department of Finance may require PHH Mortgage Services’ ejectment action to be dismissed in its entirety based on this issue alone.

Due to the grossly inadequate sales price; the fact any delay in requesting the Sheriff’s sale be set aside was due to the appeal in progress; the irregularities and extreme additional circumstances regarding the sale that caused prejudice toward us; the fact the levy was unlawfully issued and acted upon after the writ had expired; the Order of Sale and Writ of Execution were based upon a void judgment; PHH Mortgage Services did not bid at the sale and has admitted no agreement regarding the sale existed between Genworth Financial Mortgage Insurance and PHH Mortgage Services; a non-lender credit bid at the sale without authority; new evidence corroborates no default ever existed in the first place; new evidence that demonstrates PHH Mortgage Services has no lawful ownership or rights to possession to enforce; and other issues set forth herein in their entirety; the Sheriff’s sale should be set aside by truth, law and fact (Phillips, Id).

The Court’s claim that res judicata applies to the issue of fraud surrounding PHH Mortgage Services’ ownership and right to foreclose is an error of fact based on truth, timeliness and actual occurrences. Not allowing this matter to be fully and fairly adjudicated is a violation of our Constitutional rights, creates judicial errors that are creating extreme miscarriages of justice, and constitute fundamental errors the law requires to be redressed. The Court, PHH Mortgage Services and JPMorgan Chase provided contradictory claims regarding the chain of title, and PHH Mortgage Services and JPMorgan Chase lied to the Idaho Courts and to us. Idaho Courts ignored and failed to consider the evidence that JPMorgan Chase was the owner and holder of our note and mortgage during PHH Mortgage Services’ action for foreclosure. These lies constitute fraud on the Court by fraudulently concealing the truth, preventing meaningful discovery, causing the judgments rendered to be rooted in fraud, and deceptively soliciting the Court’s assistance in committing crimes against us, Clearwater County land records, and the World At Large. Merito beneficium legis amittit, qui legem ipsam subvertere intendit - He justly loses the benefit of the law who seeks to infringe the law. Frustra legis auxilium quaerit qui in legem comittit - He who offends against the law vainly seeks the help of the law. PHH Mortgage Services, by and through their false claims, illegal actions and inactions, prevented us and the Courts from fully and fairly litigating or even addressing the issue of fraud that PHH Mortgage Services did not have standing to pursue their foreclosure. Further, the fact that the Courts did not even look at or consider our evidence of fraud, by default, demonstrates the issue of fraud did not receive a fair hearing which now bars the defense of res judicata. Nemo ex dolo suo proprio relevetur, aut auxilium capiat - Let no one be relieved or gain an advantage by his own fraud.

 

“The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.” Hazel-Atlas Co. v. Hartford Co., 322 US 238 at 246 (1944)

 

“While an attorney ‘should represent his client with singular loyalty that loyalty obviously does not demand that he act dishonestly or fraudulently; on the contrary his loyalty to the court, as an officer thereof, demands integrity and honest dealing with the court. And when he departs from that standard in the conduct of a case he perpetrates a fraud upon the court’." 7 Moore, supra, at 513 (footnote omitted). Kupferman v. Consolidated Research & Mfg. Corp., 459 F. 2d 1072 at 1078 (2nd Circuit, 1972)

 

"[W]hen a judgment is shown to have been procured by fraud upon the court, no worthwhile interest is served in protecting the judgment." Id. at 653, 218 P.3d at 858 (internal quotation marks omitted). Estate of Adams ex rel. Adams v. Fallini, 132 Nev.Adv.Op. 81, 386 P. 3d 621 at 625 (2016)

 

“There is no question of the general doctrine that fraud vitiates the most solemn contracts, documents, and even judgments.” United States v. Throckmorton, 98 US 61 (Supreme Court 1878)

 

“The plea of res judicata is an affirmative defense and the burden rests on the party asserting it to establish all of the essential elements thereof by a preponderance of the evidence.” Foster v. City of St. Anthony, 122 Idaho 883, 841 P. 2d 413 at 420 (1992)

 

“Five factors are required in order for issue preclusion to bar the relitigation of an issue determined in a prior proceeding: (1) the party against whom the earlier decision was asserted had a full and fair opportunity to litigate the issue decided in the earlier case;” Ticor Title Co. v. Stanion, 144 Idaho 119, 157 P. 3d 613 at 618 (2007)

 

The circumstances and evidence surrounding this case are clear, PHH Mortgage Services and JPMorgan Chase committed fraud, fraud on the Court and fraudulent concealment to secure the underlying judgments. PHH Mortgage Services is thus barred from enforcing an ejectment action against us. In addition, PHH Mortgage Services has not even established res judicata’s first factor by a preponderance of evidence demonstrating we had a full and fair opportunity to litigate the issue of PHH Mortgage Services’ standing and the fraud surrounding their claims. The preponderance of evidence demonstrates the exact opposite – PHH Mortgage Services and JPMorgan Chase lied to the Court, and the Courts blatantly chose to ignore the evidence that established JPMorgan Chase was the owner and holder of our note and mortgage. In actuality, we have been judicially prohibited, even to this day, from a full and fair litigation of every claim we have made. The severity of a prejudicial ruling requires this court to ensure equal access to justice has existed, that all decisions have been rendered without bias or prejudice, and that we are not unjustly and unfairly being victimized and denied us of substantial and Constitutional rights through fraud, procedural manipulation, negligent judicial oversight, and the deprivation of substantial rights.

Our current action for fraud cannot be barred by res judicata or previous adjudication; because, among other reasons, according to Idaho law, it cannot even be deemed to have accrued until May of 2018 when we discovered JPMorgan Chase was the holder of our note and mortgage in 2017. This was three years after PHH Mortgage Services fraudulently obtained a summary judgment for foreclosure. Also, JPMorgan Chase did not list the property for sale prior to the 2014 judgment, so this is new evidence that could not have been discovered before because it had not happened, nor was there a basis for it to happen, nor for us to expect it to happen. The argument and evidence presented above regarding the illegal activities of PHH Mortgage Services were presented to support our current claim that the judgment for foreclosure was fraud. This claim did not accrue until post the foreclosure action, and thus, it cannot be barred by res judicata. “Of course, courts have long abided the “unremarkable principle” that “[c]laims arising subsequent to a prior action…are not barred by res judicata”, Darney, Id.

It is beyond the jurisdiction and discretion for this Court to be a mute and helpless victim of the deception and fraud of PHH Mortgage Services or choose to ignore truth, facts and evidence that defeats all claims by PHH Mortgage Services (Hazel-Atlas Co, Id). Justice and the authority vested in this Court require it to uphold the law and the age-old principle that fraud vitiates everything, even prior judgments.

We are the only rightful owners of the property known as 3165 Neff Road and 139 Neff Road. We want to keep our property. We have and have always had the wherewithal to keep our property. We have fought and will continue to fight to keep our property. We have and are in rightful possession of our property. We believe any reasonable person and freedom cherishing American citizen would agree it is more probable than not PHH Mortgage Services is not the owner of our property; that we committed no act or inaction to warrant or justify our property being taken from us; that Idaho Courts have caused grave miscarriages of justice with their contradictory rulings and prejudicial findings; that we have done all that could be asked or expected of any family in standing for the truth and what is right regarding our property, our family, and our faith; and that we should not surrender possession based on the illegalities detailed herein in this Illegalities Regarding the Actions of PHH Mortgage Services memorandum. Based on our personal knowledge and eye witness participation in the events leading up to and surrounding all of PHH Mortgage Services’ false claims, we believe allowing ourselves to be dispossessed of our Idaho Ranch would cause us to commit a crime against God, our family, our faith, our conscience, our fellow American citizens, and our homeland. Therefore, justice cannot allow any person or entity to unlawfully seize or dispossess us of our property, and risk wrongfully harming our persons in the process, based on these fraudulent proceedings.

For the record, the judgments taken against us have been through summary judgment. This ejectment action was determined by an appointed, not elected, judge. We have been procedurally, systematically and prejudicially denied due process, a jury trial, and comprehensively prevented from expanding the factual record and properly presenting our claims and defenses. New evidence, and evidence previously presented, proves no adjudication on the true merits of this case has occurred and unanswered discovery proves PHH Mortgage Services, and those acting for, and on their behalf, have maliciously prosecuted the underlying foreclosure and this ejectment action. This Court entered its order prior to our noticed memorandum or affidavit being received, after denying our request for continuance to expand the factual record of the case, after being informed numerous times of PHH Mortgage Services failure to provide requested discovery, and after other such prejudicial issues have prevented due process in this matter. Our natural born, God-given, constitutionally guaranteed freedoms and right to a jury trial of our peers in Clearwater County in this ejectment action is also being denied by this Court. The illegalities in this memorandum invoke grave concerns for our family, Clearwater County property owners, and freedom loving citizens across the United States.

Wherefore, we request the Court recognize the substantial errors creating grave miscarriages of justice against us, immediately set aside its summary judgment order, revoke the Writ of Ejectment ordering the Sheriff to remove us and our belongings from our property, reverse all previous judgments, reinstate our claims, set aside the foreclosure sale and all subsequent actions regarding it, compel PHH Mortgage Services to produce discovery requested, and allow a full and fair adjudication on the TRUE merits of this case by jury trial to finally occur.

 

No freeman shall be taken, or imprisoned, or outlawed, or exiled, or in any way harmed, nor will we go upon him nor will we send upon him, except by legal judgment of his peers or by the law of the land.

To none will we sell, to none deny or delay, right or justice.
Clause 39 and 40, Magna Charta, 1215

 

Civil tyranny is usually small at the beginning, like the “drop of a bucket,” till at length, like a mighty torrent, or the raging waves of the sea, it bears down all before it, and deluges whole countries and empires…

Jonathan Mayhew, 1749

 

Resistance to tyranny becomes the Christian and social duty of each individual…Continue steadfast, and with a proper sense of your dependence on God, nobly defend those rights which heaven gave, and no man ought to take from us.

Provincial Congress of Massachusetts, 1774

 

Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take, but as for me, give me liberty, or give me death!

Patrick Henry, 1775

 

Nothing is politically right which is morally wrong.
Daniel O’Connell, 1775-1847

 

 

All that is necessary for evil to triumph is for good men to do nothing.
Edmund Burke, 1729-1797

 

United States Constitution

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding… all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution…
Article 6

 

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Fourteenth Amendment of the United States Constitution

 

Here I stand; I can do no other. God help me. Amen.
Martin Luther, 1521

 

Oral argument requested. 

 

Standing and fighting in faith and prayer because it is the right thing to do,









Motion to Take Notice of Issue and Reverse Error

Comes now, we, Defendants Charles and Donna Nickerson, husband and wife, in accordance with I.R.C.P. 7(b)(1); Article 6 and the Fifth, Seventh, and Fourteenth Amendments of the Constitution of the United States; and Article 1 Sections 1, 3, 4, 7, 13, and Article 5 Section 1 of the Constitution of the State of Idaho, move the Court to take notice and reverse its error identified in our objection filed with the Court on August 5, 2019, and request the error be remedied by the Court setting aside and vacating its orders denying our Motion to Reconsider Summary Judgment Order, Motion to Reconsider Order on Motion to Continue Summary Judgment Hearing, and Motion to Reconsider Taking Judicial Notice.
We timely filed our Motion to Reconsider Summary Judgment Order, Motion to Reconsider Order on Motion to Continue Summary Judgment Hearing, and Motion to Reconsider Taking Judicial Notice. In accordance with I.R.C.P. 7(b)(3)(D), we notified the Court in these motions they were supported by our memorandum Illegalities Regarding the Actions of PHH and the Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order, and that these documents would be filed in accordance with the timeline for motions. A hearing was noticed for August 20, 2019, which, according to I.R.C.P. 7(b)(3)(A), set the deadline for our memorandum and affidavit to be filed by August 6, 2019. This Court ruled against our motions for reconsideration on July 31, 2019, six days before our memorandum and affidavit in support of these motions were due to be filed. In the Court’s Order re: Motion to Reconsider Summary Judgment, the Court references and provides findings on purported issues in our memorandum. This Court erroneously and unfairly made its determination prematurely, as our memorandum in support of these motions had not yet been filed.

We filed an objection to the Court’s orders denying reconsideration of our Motion to Reconsider Summary Judgment Order, Motion to Reconsider Order on Motion to Continue Summary Judgment Hearing, and Motion to Reconsider Taking Judicial Notice on August 5, 2019. We have not heard from the Court regarding our objection to these rulings, or instructions regarding a new hearing date. We are filing this Motion to Take Notice of Issue and Reverse Error, concurrent with Illegalities Regarding the Actions of PHH and the Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order, and are requesting a hearing date from the Court clerk. It is prejudicial for this Court to rule we have provided no new evidence or issues of fact in the Court’s orders, when the Court had not received our memorandum or affidavit that supported these motions.

Further, the Court erred and abused its discretion in its Order re: Motion to Reconsider Summary Judgment by stating “the Court has also considered and rejected all of the grounds for relief from a final judgment under I.R.C.P. 60(b).” No 60(b) or other 60 motion has been filed in this case. Therefore, this determination exhibits bias and prejudices us.

In addition, we request the Court immediately issue an order staying any and all attempts to forcibly remove us and our belongings from our property including any enforcement based on the Writ of Ejectment issued on July 31, 2019. It is a manifest injustice of this Court and a crime against us, Clearwater County and the World at Large to order or permit PHH Mortgage Services to attempt to forcibly remove us and our belongings from our property without even considering the authorities, evidence and argument presented in our memorandum document entitled Illegalities Regarding the Actions of PHH and the Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order.
Further, the order issued to Sheriff Chris Goetz to eject us from our property is not a lawful order because it is based on falsehoods and the truth or power to act is not in it. Fraud vitiates everything. Therefore, it cannot be morally or lawfully enforced with or by the power vested in the officials of this county. Justice demands this Court and all of Clearwater County recognize the rulings of this Court in their entirety on this matter are erred and based on fraudulent claims, forged documentation, and draconian legal chicanery. As such, this places our innocent persons, property, reputation, freedoms, Constitutional rights, and very lives at peril. This Court is beyond its jurisdiction, as an appointed judge acting as a sole trier of fact, to cause this county, and ultimately the State of Idaho, to defy the Idaho and United States Constitutions; create civil unrest in being forced to stand against such tyranny; and incur such extreme liability and exposure for all those working with, for, or on behalf of the county, in their official capacities, and as individual citizens making choices to follow unlawful orders or silently allow them to be enforced. “Just following orders” was not a very effective defense at the Nuremberg trials when justice finally spoke up for those persecuted Jews and Christians. We anticipate it will not be in this situation either should this judicially authorized theft end in tragedy and travesty. Wherefore, we submit it is in everyone’s best interest for this Court to lay aside any prejudice, bias, pride, fear of the big banks, or other such deterrents to justice, and help us and the truth save our home. It is time to hold these big banks responsible for what they have done to us and are doing to others in Idaho and across the United States of America. We have not and will not bend or bow to this injustice and are resolutely prepared to fight all the way for our home as truth, justice, and our American citizenship allow and demand.
As a matter of record for all who come after us to know and review, all judgments have denied our Constitutional right to a jury; gained determination through regulatory failure, procedural manipulation, systemic mortgage terrorism, selective technicalities, timeliness abuse, fraudulent representations, and other such weapons of tyranny. PHH Mortgage Services does not own our property. We do not owe them a debt. We did not default on any alleged loan they have or do not have a right to foreclose on. We are being attacked for our faith because of hate, greed, wicked motives. PHH Mortgage Services has been found by the State of Idaho and 48 other states, as well as Washington D.C., to be mortgage bad boys. In our case, they are guilty of mortgage robbing; stealing, misapplying, and embezzling payments; handling hard-earned money with unclean hands; and the inconceivable extortion of our American homeland. It is time for this assault to end.

We have approached this Court repetitively to exhaust all peaceful options available to us to save our home. We have travelled across America to Washington D.C. telling our story of what has happened to us in Clearwater County, Idaho, and others across our invaded land. We have sounded the call to America to help us stop this travesty. Today the rule of the gavel has the opportunity to save homes and Americans or enslave, incarcerate and murder the American dream. This is our home. We want to keep it. We have and have always had the wherewithal to keep it. We have fought and will continue to fight to keep it. To borrow the words of John Paul Jones, the famous sea captain and Father of the American Navy, as he fought aboard a sinking vessel with guns so close they were touching,

We have not yet begun to fight.

 

PHH Mortgage Services has no cause or right to foreclose or eject us from our home. We did not default. PHH Mortgage Services, JPMorgan Chase, and their accomplices have colluded to fraudulently conceal evidence and bury the bench of this Court in fraud. It is in the power of this court to prevent a tragedy, rule justly, and reverse the abusive and inhumane treatment we have suffered at the hands of PHH Mortgage Services and their accomplices.

Once to every man and nation,

Comes the moment to decide,

In the strife of truth with falsehood,

For the good or evil side.

James Russell Lowell

 

Wherefore, we request this Court immediately halt all further enforcement of the Writ of Ejectment, take Notice of Issue and reverse its error, vacate its orders regarding reconsideration, properly consider the facts, evidence, laws, authorities, and arguments in our Illegalities Regarding the Actions of PHH and the Affidavit of Charles Nickerson in Support of Motion to Reconsider Summary Judgment Order, and permit oral argument on our motions to reconsider.

Oral argument requested.






Objection to Opinion Re: Request for Ruling and Filing
 

Comes now, we, Defendants Charles and Donna Nickerson, husband and wife, for the reasons set forth below, in accordance with I.R.C.P. 46, object to the Court’s Opinion re: Request for Ruling and Filing. We hereby incorporate our meritorious reasons for needing discovery as found in our motion to compel and supporting documents in their entirety.

We are unaware if the title of this opinion was in error or represents an unknown procedural strategy, but we filed a “Request for Ruling and Findings” not a “Request for Ruling and Filing.” Regardless, we want to clarify we requested the Court to issue an opinion or memorandum regarding our Motion to Compel Discovery and Motion to Determine the Sufficiency of Answers or Objections. The opinion the Court issued directs its attention to a scheduling of our Motion to Compel Discovery and Motion to Determine the Sufficiency of Answers or Objections, and primarily misses the point of our Request for Ruling and Findings.

On June 19, 2019, we filed a notice of hearing on our Motion to Compel Discovery and objections to the June 25th Summary Judgment Hearing. As far as scheduling, we informed the Court previous out of state commitments the week of June 20th created time constraint and availability impossibilities, which included fax availability and limitations.

 

PHH filed for summary judgment prior to the completion of discovery. We moved for a continuance until specific discovery could be gathered, but were denied opportunity on Friday, June 7th. Due to the scheduling of the hearing on June 25th, the fax page limitations on filing pleadings, and our out-of-state location when the Court made its order, we were only allotted one day to support our affirmative defenses to meet the filing deadline of June 11, 2019. We ask the Court provide fair opportunity to correct any defects prior to making any adverse rulings regarding our affirmative defenses. PHH would have the Court believe our continued fight against their unlawful actions make us the bad guys. We would remind this Court if patriots and freedom fighters had not been willing to stand in the face of adversity when it was the right thing to do, the freedoms we have today would have been fraudulently litigated away long ago. (Response in Opposition to Motion for Summary Judgment, Page 13, Lines 11 - 20)

The Court denied our request for continuance and offered June 20th as a take-it-or-do-without hearing date to address any discovery issues. Due to complications with faxing our Motion to Compel Discovery and Affidavit of Charles Nickerson in Support of Motion to Compel to the Court, the Court vacated the June 20th hearing. Ignoring pre-disclosed scheduling impossibilities, then penalizing us when our extreme good faith efforts to honor and accommodate such strict adherence failed, demonstrated unfair bias and procedural rigidity. The extreme consideration and leniency generally afforded counsels with existing scheduling conflicts and requests for continuance creates an alarming prejudicial contrast.

To preserve our rights for discovery issues to be resolved prior to summary judgment, we filed another Notice of Hearing on June 25th. A hearing was set for July16th, and then amended to July 23rd, so the voluminous refusals of PHH Mortgage Services to answer discovery (productions and admissions) could be addressed with one hearing.

We filed and served our Memorandum in Support of Motion to Compel and Motion to Determine Sufficiency of Answers or Objections on July 9, 2019, in accordance with I.R.C.P. 7(b)(3)(A), as the hearing was scheduled for July 23, 2019. The very next day, July 10th, this Court granted Summary Judgment to PHH and vacated our hearing set for July 23, 2019. The Court vacated this hearing without making any ruling on our Motion to Compel Discovery and Motion to Determine the Sufficiency of Answers or Objections. Therefore, we again request the Court issue a memorandum or opinion regarding these motions and explain how and why summary judgment can be appropriate without allowing and requiring discovery to be answered.

Judge Griffin not issuing orders or memorandum on issues prevented us from obtaining justice from the Supreme Court.

 

“This Court does not review an alleged error on appeal unless the record discloses an adverse ruling forming the basis for the assignment of error.” Ada Cnty. Highway Dist. v. Total Success Investments, LLC, 145 Idaho 360, 368, 179 P.3d 323, 331 (2008). “ ‘This Court will not search the record for error. We do not presume error on appeal; the party alleging error has the burden of showing it in the record.’” VanderWal v. Albar, Inc., 154 Idaho 816, 822, 303 P.3d 175, 181 (2013) (quoting Miller v. Callear, 140 Idaho 213, 218, 91 P.3d 1117, 1122 (2004)).

The Nickersons argue that the district court abused its discretion when it denied their motion. However, the Nickersons fail to provide a citation to the record showing the district court’s decision on the issue, much less address the basis for that decision. Thus, we will not address the Nickersons’ claim that the district court erred by denying the motion to amend their pleadings.

On March 26, 2014, the Nickersons filed an objection to the Second Affidavit of Ronald E. Casperite. The Nickersons argue that the affidavit was fraudulent because the notary did not sign the affidavit. On May 16, 2014, the Nickersons filed a motion to suppress and strike the depositions taken of both Charles and Donna Nickerson. The Nickersons argue there were errors and irregularities in the manner the testimony was transcribed, prepared, signed, certified, sealed, endorsed, transmitted, and filed. However, once again the Nickersons fail to cite to any adverse ruling in the record for this Court to consider. Thus, these issues are waived.”
Nickerson 1, pg. 14-15, 2016

We informed this court of this fact in oral argument.

 

“…Judge Griffin would not consider it. He did not provide a written memorandum that we could take to the Supreme Court to show why he did not consider that, uh, that Amended Answer and Counterclaim and so we were, we were unable to properly present that to the Supreme Court so they just said that argument was waived. But if you don’t have anything to point to, if you don’t have an argument, uh, a document to show the judges reasoning, we had no way to, uh, to refute that so we do not feel we had a full and fair opportunity to present this, to present our argument.”
June 25, 2019 hearing

Our Memorandum in Support of Motion to Compel and Motion to Determine Sufficiency of Answers or Objections was 73 pages plus exhibits. This memorandum in its entirety detailed which admissions and production requests should be compelled. The requests included supporting argument and applicable authorities to demonstrate why PHH Mortgage Services should be required to answer the requested discovery; how PHH Mortgage Services procedurally prevented us from access to needed discovery; and how this discovery necessarily proves beyond a shadow of doubt PHH Mortgage Services has committed fraud, fraud on the Court, and fraudulent concealment to obtain judgments against our property. It also exposes specific ways and instances previous litigation procedurally failed to consider new evidence collected, denied us the right to amend our pleadings, and established laws of the case based on falsehood, when truth reversed all judgments and dismissed PHH Mortgage Services’ claims in their entirety.

In this action, we informed the Court on May 24, June 4, during the hearing on June 7, on June 11, June 19, June 20, June 25, July 3, July 9, and July 24 PHH Mortgage Services had failed to provide discovery, and we needed the Court’s assistance to retrieve the requested discovery from PHH Mortgage Services.

 

May 24, 2019
“We are in the early stages of the discovery process for a trial scheduled for December, 2019, over 6 months away. Since discovery is in process and has not been completed, a request for summary judgment is procedurally premature at this time. PHH Mortgage Services has objected to requests for production regarding their alleged ownership in our property and how and when it was obtained that are necessary in preparing our opposition to their Motion. Their continued objections will require us to file an I.R.C.P. 37 motion to compel which must be heard and decided. Also, because of PHH’s objections, interrogatories have been prepared and their answers may require us to perform depositions.”
Motion to Continue Hearing on Summary Judgment, Page 2

June 4, 2019
“For reasons detailed in our motion to continue, we have moved the Court to continue or vacate the summary judgment hearing currently scheduled for June 18, 2019, to allow the discovery process to be completed, and due process to have opportunity to properly establish, protect, and preserve triable issues.”
Motion to Shorten Time for Hearing on Motion to Continue Hearing on Summary Judgment, Page 1

June 7, 2019
“Additionally, per summary judgment rule 56 summary judgment is not appropriate at this time as discovery has not been completed nor has it stopped or even partially, or even partially paused. Unanswered discovery is in and of itself cause for the hearing to be continued and grounds to vacate any motion for summary judgment… As a matter of record we have gathered and collected discovery that disputes the claims of these documents [Sheriff’s Certificate of Sale, Sheriff’s Deed, Order of Sale and Decree of Foreclosure], demonstrates the clear and convincing evidence these documents were not prepared per the operation of law and defeats uh, and because of that defeats summary judgment in favor of PHH. But time is needed to continue gathering and compelling facts that are unavailable to us without further discovery and that are essential to our opposition. These facts have been previously concealed and misrepresented by PHH and opposing counsel.”
Hearing on Motion to Shorten Time and Motion to Continue


June 11, 2019
“No harm can come from allowing discovery to run its course and both parties to have equal access to justice.”
“PHH filed for summary judgment prior to the completion of discovery. We moved for a continuance until specific discovery could be gathered, but were denied opportunity on Friday, June 7th. Due to the scheduling of the hearing on June 25th, the fax page limitations on filing pleadings, and our out-of-state location when the Court made its order, we were only allotted one day to support our affirmative defenses to meet the filing deadline of June 11, 2019. We ask the Court provide fair opportunity to correct any defects prior to making any adverse rulings regarding our affirmative defenses.”
Response in Opposition to Motion for Summary Judgment, Page 9, 13


June 19, 2019
“As of today, opposing counsel has objected to our filing a Motion to Compel Discovery based on their belief it is a premature action. They have opened a forum to discuss unanswered discovery via written correspondence. We are more than willing to work with PHH Mortgage Services to ensure they have every opportunity to comply with discovery requirements, but the looming June 25th summary judgment hearing and the Court’s unavailability to hear matters at any other time prior to the summary judgment hearing on June 25th force us to go ahead and notice this hearing. Should our dialogue with PHH Mortgage Services demonstrate their good faith and that securing discovery can happen without Court intervention, we will notify the Court that an alternative solution has been reached.”
Notice of Hearing on Motions and Objections, Page 1-2

June 20, 2019
In its entirety - Motion to Compel Discovery

June 20, 2019
“In the underlying foreclosure action we were hampered in our efforts to obtain a full and fair litigation of our issues because, according to our former attorney, no meaningful discovery had been provided by PHH. In addition, the Court refused to consider the evidence of fraud we were personally able to gather because we were unable to submit it until after the summary judgment hearing. It would be extremely prejudicial to us to allow that to happen again. We have been and are continuing to diligently seek discovery supporting our claims and defenses.”
Objection to Order on Continuance, Page 2

June 25, 2019
“Please take Notice that on July 16, 2019, at 11:00am PT, or as soon thereafter as counsel may be heard, the Nickersons’ Motion to Compel Discovery will be presented before the Honorable Gregory FitzMaurice at the Clearwater County Courthouse, Orofino, Idaho.”
Notice of Hearing on Motion to Compel Discovery, Page 1

July 3, 2019
“PHH objected to nearly all of our requests for admissions and requests for production. In our Memorandum in Support of Motion to Compel Discovery and Motion to Determine the Sufficiency of Answers or Objections, we have set forth our reasons PHH’s objections and answers were insufficient in particularity and have demonstrated the relevancy of each request to the issues surrounding this action for ejectment. Wherefore, we request the Court to determine the sufficiency of PHH’s answers and objections.”
Motion to Determine the Sufficiency of Answers or Objections, Page 1-2

July 9, 2019
“Comes now, we, Defendants Charles and Donna Nickerson, husband and wife, in accordance with I.R.C.P. 36(a)(7) and 37, the reasons set forth in our Motion to Compel, and the authorities, evidence, and argument included in this memorandum in its entirety, request the Court compel PHH Mortgage Services to produce the documents requested in our first set of requests for production and determine the sufficiency of PHH’s answers to our requests for admission.”
Memorandum in Support of Motion to Compel and Motion to Determine Sufficiency of Answers or Objections, Page 1

July 24, 2019
“Summary Judgment is not appropriate at this stage in this ejectment action. We have informed the Court critical outstanding and unanswered discovery requests exist and that discovery efforts are ongoing. Discovery has been identified, which, if provided in its entirety, dismantles PHH Mortgage Service’s claims against us in their entirety. We timely and properly requested a continuance as well as an order to compel this discovery to be provided. We have faithfully and consistently exhibited extreme due diligence in all proceedings this action seeks to enforce. Our efforts deserve to be rewarded with just responses and renderings, not quashed with rushed or prejudicial procedural dispositions.”
Motion to Reconsider Summary Judgment Order, Page 1

July 24, 2019
In our discovery requests, motions to compel, and supporting memorandums, we set forth an abundance of argument as to why the discovery requested is relevant to our claims and defenses. We also set forth new evidence proves dismissal of all PHH Mortgage Service’s claims is appropriate and that all judgments have been rendered based on false claims and fraud by PHH Mortgage Services.
Motion to Reconsider Order on Motion to Continue Summary Judgment Hearing, Page 1

 

Much of the discovery sought is required to be provided under 12 C.F.R. § 1024.38, and I.R.C.P. 26(b)(3)(C). All discovery requested seeks admissible evidence kept in the normal course of business and has been sought in good faith. This Court’s premature scheduling of a summary judgment hearing and subsequent ruling on summary judgment when there were outstanding discovery issues is prejudicial, exhibits extreme bias, and unlawfully shields PHH Mortgage Services from being exposed for their crimes and fraud committed.

Our requests for discovery are strongly supported by the alleged contract, Idaho law, regulatory requirements, and common law. As demonstrated in our motion to compel, memorandum, affidavit, and our pleadings in their entirety, PHH Mortgage Services has thwarted and averted all discovery attempts – judicial, contractual, regulatory, common law, and common sense – from February 2010 to present. Their malicious obstruction of justice has continued without full or fair judicial oversight, and, by and through procedural manipulation, regulatory failure, and systemic corruption.

The law of the land requires and foundations of our American freedoms beseech Idaho courts to lay aside any bias, prejudice, or procedural technicalities which serve not justice. All truth, facts, and evidence, in and out of the record, support our claims and defeat PHH Mortgage Services. All state, federal and common laws protect our property and end this assault. All false claims, forged documents, contradictory statements, collusive misrepresentations, and unclean hands impeach PHH Mortgage Services right to speak. We have approached this Court with truth, integrity, factual reality, and authority for relief granted us as United States citizens by the laws of our land.

Wherefore, we request this Court issue written and explanatory orders, rulings or findings regarding our meritorious Motion to Compel Discovery and Motion to Determine the Sufficiency of Answers or Objections. These motions are supported by our Memorandum in Support of Motion to Compel and Motion to Determine Sufficiency of Answers or Objections, Affidavit of Charles Nickerson in Support of Motion to Compel, and the Affidavit of Charles Nickerson in Support of Motion to Determine Sufficiency of Answers and Compel Discovery.

Alternatively, if this Court is willing to acknowledge the grave miscarriages of justice we have suffered through this litigation does not qualify as due process, reverse its previous rulings, and take the just, right, and equitable action to require PHH Mortgage Services answer the discovery requested, this Court and the World At Large will find summary judgment is inappropriate and the absolute truth is PHH Mortgage Services and JPMorgan Chase, maliciously, intentionally, and illegally targeted our family, our property, and our faith without right or cause. Both the foreclosure and ejectment actions are rooted and built upon fraud and criminal activity. No judgment or rendering in this matter has been fully or fairly litigated based on the merits. No contest has yet occurred because the truths of the matters have been hidden and procedurally prevented from being heard. It is more probable than not a full and fair contest on the true merits of the case will reverse all previous adversarial judgments and orders. It is time.

We pray as we have for years that God will render to each man according to his deeds.

Oral argument requested. We anticipate thirty minutes will be needed to sufficiently present our argument on this matter.