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Appellant's Brief


Appellant's Brief


I. STATEMENT OF THE CASE

NOTE: The record in this case is referenced as follows: R – the original clerk’s record produced for the appeal in Docket 42163-2014. SAR – the second amended clerk’s record produced for Docket 42163-2014. CR – the clerk’s record produced for this appeal. FSJ – the first summary judgment. SSJ – the second summary judgment.

This appeal stems from the underlying case in which this Idaho Supreme Court affirmed the summary judgments against the Appellants (“Nickersons”). These judgments dismissed our counterclaim and third party complaint, granted a judgment for foreclosure to Respondent PHH Mortgage (“PHH”), and awarded attorney fees and costs to Respondent JPMorgan Chase Bank, N.A. (“Chase’). When rendering these judgments, the courts refused to consider evidence, testimony and documentation in the record that demonstrates PHH’s and Chase’s intentionally deceptive, fraudulent and unlawful actions; the admitted negligence of our attorney; and the contradictory opinions of the District Court being relied upon to establish both summary judgments. See Docket 42163-2014.

In response to this extreme miscarriage of justice, we, the Nickersons, filed a petition for rehearing which was prejudicially denied.

In addition, in response to Chase’s request for attorney fees and costs, we filed an objection to the fees and costs and a motion for sanctions against Chase for submitting false, misleading and felonious information to the Court. This motion for sanctions created a truth trap that irrefutably negates any rights to foreclosure based on PHH and Chase’s false and contradictory claims:

If Chase ever owned the property, the first summary judgment (FSJ) must be reversed as its opinion was rendered based on the alleged claims that Chase was the Servicer only and never an owner. Our claims were dismissed, we were restricted from pursuing and securing critical discovery, and were denied opportunity to expand the factual record of the case based on their false claims. Further, the second summary judgment (SSJ) cannot stand on its own without relying upon the FSJ, which was rendered through false claims and admitted attorney negligence.

If Chase never owned the property, PHH committed Fraud On The Court by referencing a forged assignment from Coldwell Banker to Chase dated 2007 with their complaint (filed January 2011) and providing a copy of an alleged assignment from Chase to PHH dated June 2010. Further, PHH fraudulently obtained a wrongful foreclosure judgment and is attempting to legitimize execution of judgment based on these false claims. Chase has affirmed they had ownership in the property per a RESPA Qualified Written Request and a Notice of New Creditor letter claiming they received ownership on December 3, 2009, and still retained it as of January 2014 (R. 1139, 1140, 1232) Further, Fannie Mae affirmed their ownership transferred on December 3, 2009, in response to a formal inquiry (R. 1112). Whether or not Chase ever owned the property, Chase and PHH have made false claims to Idaho Courts, PHH lacks standing to pursue any action against us, all judgments in favor of PHH and Chase are unlawful and must be reversed, the State of Idaho should pursue comprehensive criminal actions for the crimes committed, and Chase and PHH should be severely and punitively punished for what they have done to our family. On September 13, 2016, the Idaho Supreme Court issued an order substantially reducing the amount of fees requested by Chase. However, we did not receive a copy of this order so we did not find out about this order until we contacted the Court on April 17, 2017. This Idaho Supreme Court reduced the amount of Chase’s fees in response to the motion, but did not address the illegitimacy and intentional deception surrounding their claims. This Brief demonstrates PHH has lied and committed fraud as well, and compels this Idaho Supreme Court to sanction PHH, completely reverse summary judgment, dismiss their complaint, void the foreclosure, and reinstate our claims against PHH and Chase. We request this Idaho Supreme Court uphold the law and force PHH to end their fraudulent and unlawful mortgage servicing practices in this state.

In response to the Court’s remittitur dated July 19, 2016, on February 28, 2017, PHH filed their Motion to Set Aside Stay and for Issuance of : (1) Writ of Execution on Judgment of Foreclosure; and (2) Order of Sale on Foreclosure requesting the District Court to lift the stay, and issue a writ for foreclosure and an order of sale.

On April 11, 2017, we filed:

1) a Response in Opposition to Motion to Set Aside Stay and Issuance of Writ of Execution and Order of Sale with exhibits (CR pp. 4-107) which demonstrated the falsehoods, misrepresentations and inaccuracies surrounding; a) The true chain of title and holder of the note – Chase provided documentation that they were the Note Holder and not PHH; b) Default and default amount – the account records provided by Chase and PHH are conflicting, demonstrate no default existed, and corroborate our claims of fraud and prevention of performance; and c) Notice of Default and opportunity to cure – PHH was notified their Notice of Default was inaccurate but unlawfully took no action to research the inaccuracies or work with us to resolve the disputed default amount. In concluding this document, we once again reiterated the unjustness being perpetrated against us by the courts in stating:

“This [District] Court issued a stay for good cause. PHH’s case has significant genuine issues of material fact. These issues have not gone away. If anything, PHH’s position lost any and all potential merit when the Supreme Court, based on their ruling, declared Chase lied. However, due to the biased, sabotaged and prejudiced record produced by Judge Griffin (“The Nickersons submitted additional documents and statements after the hearing…The court will not consider these documents…”), the Supreme Court did not consider documents in which Chase claims to be the holder of the note, have the note in its possession, and to be the investor on the loan. Further, the Supreme Court did not address the assignment of error regarding the ignoring of these documents. Thus, the prejudiced record thwarted a remand at the Supreme Court level.” 

 

2) Motion for Sanctions with exhibits (CR pp. 108-196) which demonstrated Chase and PHH lied to the courts and concluded,     

“Chase and PHH have built their case based upon lies and deception and have not taken any steps to insure their statements and claims are well grounded in fact. Their actions have created irregularities which render any judgments in their favor void. Therefore, not only are monetary sanctions warranted, it is appropriate and just to vacate the summary judgments in favor of Chase and PHH, dismiss PHH’s complaint with prejudice, and allow us to pursue our amended counterclaims and third party complaint.”     

 

3) Motion to Quash Execution and Judgment (CR pp. 197-199), which demonstrated the District Court has the inherent power and authority to quash execution and judgment and once again reiterated Chase and PHH obtained judgments through concealment, deception and fraud. Their actions render any underlying judgments void. This motion defended “our interests in a property from an action that has arisen from fraud, misrepresentation, concealment, fraudulent suppression of material facts, bad faith, breach of trust, breach of contract, abusive debt collection practices, and other such criminal and malicious intent.”

The three pleadings listed above demonstrated to the District Court the facts in this case irrefutably document Chase’s and PHH’s lies, misrepresentations, contradictions and unbelievable unwillingness to simply tell the truth. However, on April 13, 2017, the District Court issued an Order Denying Motion to Quash Execution and Judgment and Motion for Sanctions, an Order Lifting Stay and an Order of sale and Decree of Foreclosure granting PHH authority to proceed with the foreclosure sale of our property. CR pp. 200-208.

In response to those orders, on April 27, 2017, we filed: 1) Motion to Vacate or Amend Order of Sale and Decree of Foreclosure (CR 210-214) which demonstrated the unlawfulness of the order and requested it be vacated or amended to conform with the laws governing foreclosure and redemption I.C. §§ 6-101, 102 and 11-301, 304, 310, 401-403; and 2) Motion to Reconsider Order Denying Motion to Quash Execution and Judgment and Motion for Sanctions (CR 215-224) which demonstrated the facts, contradictions and legal basis for our request to quash execution and judgment and sanction PHH and Chase.

On May 16, 2017, the District Court issued orders denying our motion to vacate and motion to reconsider providing no authority or memorandums. CR pp. 225-228.

On May 25, 2017, we filed a Notice of Issues and our Notice of Appeal appealing all of the above mentioned orders. CR pp. 229-240

PHH scheduled the foreclosure sale for August 28, 2017. After finding out PHH had scheduled the sale, on August 10, 2017, we requested PHH stipulate to a stay. On August 11, 2017, PHH refused. We researched lawful options to stop the sale and find relief. On August 21, 2017, we filed an Emergency Motion to Cancel Foreclosure Sale and Stay Execution Pending Appeal with exhibits with this Court. On August 25, 2017, this Supreme Court denied our emergency motion. We presented evidence of fraud to Clearwater County Sheriff Chris Goetz (See Exhibit 2). Based on his review of the evidence surrounding this wrongful foreclosure, he approached Clearwater County Attorney E. Clayne Tyler to stop the sale. Sheriff Goetz was threatened with legal action if he did not move forward with the sale immediately. On August 28, 2017, Genworth Financial, in violation of the District Court’s order which stated only PHH could submit a credit bid, purchased the property at the Sheriff’s sale using a credit bid.

Subsequently, PHH sent a demand letter for possession of the property. We responded with a demand that our lawful rights to remain in possession during the redemption period be upheld. See Exhibit 3. PHH then formally retracted their demands in writing by stating, “Please be advised that the Notice to Quit dated September 12, 2017 is hereby retracted.”

In accordance with Idaho law, we remain in possession of the property. In accordance with justice and the Constitutions of the United States and Idaho, no power on earth has a right to take our property from us without our consent. (Chief Justice John Jay) We have committed no action or inaction to grant our consent so we are seeking relief from this Idaho Supreme Court and resolutely intend to pursue any and all legal remedies to save our ranch and clear our good name.

On January 3, 2018, the Idaho Department of Finance issued a NEWS RELEASE titled Department of Finance Enters into Settlement Agreement With PHH Mortgage Corp. “’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.” Further, this settlement is intended to “assist borrowers harmed by PHH during 2009-2012 as a result of severe operational deficiencies in mortgage servicing identified during a multistate examination.” Department of Finance Enters into Settlement Agreement With PHH Mortgage Corp https://www.finance.idaho.gov/PR/2018/PressRel_Settlement_Agreement.pdf and https://www.finance.idaho.gov/ConsumerFinance/Action/Administrative/PHH-MMC-Consent-Order.pdf

II. STATEMENT OF FACTS

A. In its opinion in PHH Morg. v. Nickerson (2016), this Idaho Supreme Court affirmed the contradictory facts regarding the chain of title as presented by the District Court. Emergency Motion to Cancel Foreclosure Sale and Stay Execution Pending Appeal – Exhibits 9 and 16 (filed in this Court on August 21, 2017)

B. This Court’s affirmation of the District Court’s finding of fact, by default, demonstrates this Idaho Supreme Court’s belief that PHH submitted pleadings, motions and other papers to the Court that were known to be or should have been known to be false, misleading and not grounded in fact to secure judgment.

C. This Court affirmed Chase submitted pleadings, motions and other papers to the court that were known to be or should have been known to be false, misleading and not grounded in fact. See September 13, 2016, order on costs and fees.

D. The District Court’s Order of Sale and Decree of Foreclosure is unlawful because it does not conform to the Idaho foreclosure and redemption laws. CR pp. 210-213.

E. In PHH’s response in opposition to our motion for summary judgment, PHH states, “There are no genuine issues of material fact regarding PHH’s position as Note Holder.” However, the evidence (R p. 1232) and Idaho law, I.C. § 45-911, declare PHH did not hold or own our Note and Mortgage.

F. PHH falsely claimed Fannie Mae transferred the note directly to them based on the allonges to the Note. However, no allonges are on the note. R pp. 40-42.

G. PHH claimed Chase never owned the note (R p. 882) which contradicts, invalidates, and establishes fraud in both publicly recorded assignments (Assignment 1: Coldwell Banker to Chase; Assignment 2: Chase to PHH), and demonstrates PHH’s malicious intent to mislead, deceive and commit fraud on the Court, defraud us, and acquire unjust gain from the World At Large.

H. Chase allegedly purchased our loan from Fannie Mae on December 3, 2009, and claims to currently hold and own our Note and Mortgage. R pp. 1112, 1139-1140, 1232.

I. We experienced numerous accounting and recording keeping problems with Chase and relentlessly worked to resolve those issues. R p. 109, L. 12-23.

J. We were making regular monthly payments to Chase and were in good standing with Chase in February 2010 when servicing transferred to PHH. R p. 610, L. 12-16; pp. 766-769.

K. According to the account history provided by Chase in support of their motion for summary judgment, and used by PHH and the District Court for judgment against our property, the principal balance on our account was $0.00 in November 2009 and $-1,186.90 on January 21, 2010. According to this account history, we were not in default but, in fact, were due a principal balance refund of $1,186.90 when Chase transferred servicing to PHH. Since Chase failed to demonstrate a principal balance remaining on our account, PHH failed to establish how we were or could have been in default. R. pp. 766-767.

L. Immediately upon transfer of servicing, PHH claimed default and refused to accept any payments. R p. 614, L. 6.

M. The default amount of $32,605.36, 14 missed payments, claimed by PHH in February 2010 differs by over $11,000.00 to PHH’s most recent claim of 9 missed payments in November 2013. R p. 1196, L 18-20. PHH never changed their default notice, nor did they research this error back in 2010 when we provided proof the claimed default was wrong and in violation of lending and debt collection laws governing foreclosure actions. The Court ignored all evidence and testimony of no default, fraud, abusive debt collection, and malicious prevention of performance.

N. The affidavit provided by PHH to support its second motion for summary judgment was invalidly notarized. R pp. 1237-1238, SAR p. 63.

O. Fannie Mae allegedly owned our loan from December 27, 2002, to December 3, 2009, R p. 1112.

P. The assignment from Coldwell to Chase recorded in 2007 constitutes fraud against us, on the Court, and toward the World At Large. Coldwell no longer had any interest in our loan because they sold the loan to Fannie Mae in December of 2002. Thus, they had nothing to assign to Chase in 2007. R p. 1093, L. 7- p. 1094, L. 3.

Q. Chase denied purchasing the Note and Mortgage as a result of the alleged assignment from Coldwell in 2007. R p. 109, L. 11 and p. 128, L. 2-5.

R. The assignment from Chase to PHH in June 2010 cannot be relied upon by PHH to claim beneficial interest or the right to foreclose because Chase still claims to hold and own our Note and Mortgage. R p.1232

S. The assignment from Chase to PHH in June 2010 was robo-signed by Kirsten Bailey. R p. 1099, L. 17 – p. 1100, L. 3; pp. 1136-1138

T. John L. O’Brien, Register of Deeds for the Commonwealth of Massachusetts Southern Essex District Registry of Deeds, affirmed Kirsten Bailey is a robo-signer. SAR pp. 90-92.

U. We were making our monthly payments and were current and in good standing prior to February 2010 when PHH refused to accept any payments, prevented our performance, and refused to validate their claim of default. R p. 610, L. 12-16.

V. PHH admitted in July 2012 that “PHH is unaware of any payments made or not made by the Nickersons to Chase.” R. 742 – Response to Request for Admission No. 13. Lawfully, PHH could not claim default for our allegedly not making payments if PHH is “unaware” of the payment history. Further, this is a completely, false misrepresentation and defamatory claim, because we had provided PHH proof of payments made to Chase prior to this claim. R p. 901.

W. PHH refused to work with us regarding PHH’s claim of default. R p. 111, L. 1-7.

X. PHH refused to provide notes and transcripts of phone conversations and oral communications regarding our trying to resolve any alleged default. R p. 886-887.

Y. We provided documentation proving PHH’s default claim was inaccurate. R p. 901

Z. PHH violated RESPA 12 U.S.C. § 2605(e)(2)(B) by failing to provide a written explanation detailing their default claim and refusing to investigate the disputed default. R p. 1433.

AA. PHH illegally attempted a non-judicial foreclosure after admitting it was unlawful. Our counsel stopped it with threats of legal action. R p. 1434.

BB. Per I.C. § 18-3601. Forgery Defined, PHH and Chase are guilty of forgery.

CC. Per I.C. § 18-3203, PHH and Chase committed felony offenses by recording fraudulent, forged assignments from Coldwell Banker to Chase and Chase to PHH.

DD. PHH moved the Court for an order to serve us by publication when they knew we were represented by counsel, had contact information for both us and our counsel, both we and our counsel previously warned how damaging such a publication would be, and PHH knew we wanted to keep our property and had the wherewithal to keep our property. PHH subsequently served us by publication. R pp. 923-924.

EE. PHH denied they must maintain accurate records of all communication with us. R p. 743 – Response to Request for Admission No. 20.

FF. Request for production number 7 asks PHH to provide any agreements between Chase and PHH related to the transfers and sales of notes. PHH stated they do not have any agreements with Chase related to the transfer and sales of notes. Chase, in the assignment submitted to the Court, claims they received some value for the assignment to PHH so an agreement had to be in place for that to occur. R p. 892.

GG. In his first affidavit, Ron Casperite, a Complex Litigation Liaison (Public research defines Ron’s role as a New Jersey account analyst with a non-foreclosure banking background, who was hired by various banks during the mortgage fraud holocaust to provide counterfeit firsthand deposition and trial testimony.) for PHH, claimed we had missed at least ten (10) monthly payments and in the same affidavit he claimed we had missed thirteen (13) monthly payments (R p. 561). As a matter of public record, Ron Casperite did not work for Chase during the period in question and had no personal knowledge of our accounts; our communications with either bank or their employees; or the record keeping nightmare surrounding this account and other Chase accounts. Further, PHH admitted they had no records or knowledge of payments made or not made to Chase. Therefore, Ron Casperite had no access to authentic records to review and any testimony provided constitutes an uninformed, hearsay opinion and inadmissible fictitious illustration at best. Bank employees were readily identified who could testify to the exact nature and true occurrences surrounding inaccurate record keeping and all prevention of performance claims, but we were denied access to those employees and their account notations. In a second letter that was not notarized or based on personal knowledge, and was therefore inadmissible to substantiate default, Ron Casperite changed his claims and stated we missed only 9 payments (R p. 1037). Mr. Casperite’s fabricated testimony is unsubstantiated, contradictory and provides evidence of incompetence and perjury. The facts in the record and truths of this matter impeach any and all testimony provided by Ron Casperite.

HH. In PHH’s memorandum in support of summary judgment, PHH claimed we missed (11) monthly payments which contradicts Ron Casperite’s claims of ten (10) or thirteen (13) missed payments. R p. 322.

II. In PHH’s conclusion section of the memorandum in support of summary judgment (FSJ), PHH states the deadlines for producing factual information to support claims have long passed. It must be noted that the date of this memorandum for summary judgment is October 12, 2012, and that PHH did not submit their discovery responses until October 18, 2012. This was 5 months after PHH received the discovery requests, 48 days after the discovery cutoff, and after PHH stated the deadlines for producing factual information had long passed. Further, PHH had repeatedly broken promises to produce the discovery and we had repeatedly requested the District Court compel PHH to produce the requested discovery. All parties clearly understood the discovery requested from PHH and Chase was necessary for us to expand the factual record of the case. Our attorney did not provide PHH’s discovery responses to us until after PHH had already secured summary judgment dismissing our claims. In fact, our attorney did not notify us the first summary judgment (FSJ) process was even occurring. SAR pp. 69-70.

JJ. PHH did not provide us with proper notice of default prior to these wrongful foreclosure proceedings as required by law and the alleged contract. PHH never provided a notice of default reflecting the default (9 missed payments) relied upon to claim standing for foreclosure. Therefore, PHH has not fulfilled the conditions precedents required to take action in this case.

KK. In the trial brief PHH states “an employee of Chase, not PHH, may have stated the Nickersons’ loan was current. However, the Nickersons’ have never identified that employee.” R p. 706. This statement is false because in paragraph 20 of our amended answer, we identified Kim as the Chase employee who told us we were in good standing. R pp. 109-110. Additionally, we identified bank employees for depositions and records, but were denied access to them or their notations.

LL. In PHH’s memorandum in support of the plaintiff’s second motion for summary judgment, PHH states, “PHH refused to accept any further payments from the Nickersons until the total amount in default was paid. (Second affidavit of Ronald Casperite).” Mr. Casperite did not make that statement in said affidavit.

MM. In the illustrative loan history provided with Mr. Casperite’s second affidavit, he demonstrates the principal balance on our account should have been $259,983.72 on January 21, 2010. However, contradictorily, he claims in his affidavit that the principal balance was $261,170.62. R pp. 1038 and 1066. Chase’s account history for that time period reflects a negative principal balance ($-1,186.90). R p.766. Chase was the entity accepting and processing payments at that time. Mr. Casperite had no personal knowledge of the account and any discrepancies constitute genuine issues of material fact that prevent summary judgment in favor of PHH.

NN. In PHH’s response in opposition to our motion for summary judgment,PHH states, “Regardless of whether PHH held beneficial interest at the time Just Law, Inc., was appointed successor trustee, it is irrelevant to this judicial foreclosure action.” PHH’s reliance upon the Assignment from Chase to PHH in their complaint establishes the relevance of the content and timeline of when the assignment was signed and provides irrefutable evidence of PHH’s intent to defraud us, the Courts, and the World At Large. Filing false and forged documents to secure wrongful gain constitutes felonious acts and is therefore necessarily relevant to this Supreme Court and the security of Idaho consumers. It also establishes and heightens our rights to defend ourselves from PHH’s targeted, malicious assault. PHH’s flippant attitude toward breaking the law (falsifying records, forging documents, contaminating the integrity and authenticity of county land records, ignoring regulations regarding trustees and trust operations, violating escrow guidelines, impersonating authorities, attacking people for their religious beliefs) challenges the Idaho and United States Supreme Courts and all governing agencies to determine if this attitude is lawful. We, the Nickersons, with the full corroboration of the law and under the banner of liberty, assert PHH and Just Law breaking the law is not irrelevant and is a fatal flaw in establishing their standing to foreclose. We request the Court consider the Idaho Department of Finance’s findings regarding PHH (See Exhibit 1 - Department of Finance Enters into Settlement Agreement With PHH Mortgage Corp), recognize the seriousness and severity of PHH’s statements and law breaking actions, and fulfill your statutory responsibilities to enforce and uphold the law and protect us from judicial tyranny.

OO. In PHH’s response in opposition to our motion for summary judgment, PHH states, “Using language from a recorded assignment of the deed of trust, the Nickersons contend Coldwell Banker did not have any interest in the note or deed as of the date of the assignment. Although the Nickersons reference a paragraph from their memorandum as supporting the alleged fact, there are no facts before the court sustaining the Nickersons’ argument.”

1. The first fact before the District Court was the assignment from Coldwell to Chase which was first referenced by PHH in their complaint.

2. The second fact before the District Court was introduced in evidence by PHH in their responses to interrogatories in which they claim Coldwell transferred the loan to Fannie Mae and is evidenced by a letter in which Fannie Mae claims ownership from December 2002 to December 2009.

3. Based on these facts, Coldwell could not transfer ownership and beneficial interest in the Note and Mortgage to Chase, because Fannie Mae had ownership and beneficial interest at the time of the alleged assignment.

4. Presenting false, misleading and conflicting claims to the District Court to prevent us from securing justice establishes genuine issues of material facts and constitutes fraud. Fraud On The Court has no statutes of limitation.

PP. In PHH’s response in opposition to our motion for summary judgment, PHH states, “In part the Nickersons assert fraud because of the alleged absence of a letter from PHH constituting notice of new creditor. The Nickersons contend the absence of such letter violate the Truth in Lending Act. All of the Nickersons’ claims in their counterclaim were dismissed by summary judgment. They cannot now resurrect those claims.”

1. Note PHH does not claim to have sent a notice of new creditor nor defend the violation.

2. Our counsel did not allege a violation of the Truth in Lending Act in the original counterclaim so we were not resurrecting any claim. We were simply presenting a fact to the court. However, it would be proper and appropriate for this Supreme Court to revisit the decision to dismiss our claims in light of the fraudulent representations PHH and Chase used to manipulate that decision.

3. Further, PHH, Chase and their attorneys of record concealed evidence, refused to provide discovery, submitted fraudulent documents and instruments, obstructed justice, oppressed us and our counsel, conspired against us, prohibited justice being served, and committed other such acts to get our counterclaim dismissed.

QQ. PHH, in their objection to supplemental evidence states, “The Nickersons attempt to present supplemental evidence without affidavit.” However, page 4 of the our notice of supplemental evidence is an affidavit of Charles Nickerson introducing the supplemental evidence into the record. R 1227-1232, 1235

RR. PHH, Chase and their counsels of record have purposefully lied to and deceitfully misled the District Court. R p. 1429, L. 1- p. 1438, L. 14; p. 1453, L. 1 – p. 1477, L3; p. 1527, L. 18 – p. 1537, L. 4; p. 1538, L. 25 – p. 1565, L. 11.

SS. We, the Nickersons, were intentionally kept unaware of the status of our case from the time of our depositions and were deceived regarding the true occurrences of the case from the onset of the case. SAR p. 69.

TT. Our Idaho attorney was negligent. SAR pp. 69-70.

UU. This foreclosure action is fraudulent and wrongful. R p. 1232.

VV. This Court violated the Legal Standard regarding Summary Judgment when it affirmed the summary judgments against us. See Legal Standards below.

WW. PHH and Idaho have entered into a Settlement Agreement to assist borrowers harmed by PHH during 2009-2012 as a result of severe operational deficiencies in mortgage servicing and to protect Idaho consumers from PHH’s unlawful business practices and failure to process mortgage payments in accordance with the law. See Exhibit 1 - Department of Finance Enters into Settlement Agreement With PHH Mortgage Corp

Jo Ann Lanham, Consumer Affairs Officer, Idaho Department of Finance, in a letter addressed to us dated January 4, 2018, stated:

The Idaho Dept. of Finance has reviewed your complaint in relation to our most recent telephone conversation, where you have asked that the Department reopen your complaint based on alleged violations by PHH Mortgage Corp (PHH).

While the Department is sympathetic to your situation, the Department lacks any statutory authority to set aside the court’s determination on your case.

The Department has enclosed a press release for your information issued by the Department and dated January 3, 2018.

At this time, the Department must close your case file, with no further action. Your complaint information will be retained in Department records and may be utilized during the company’s licensing / renewal process as well as by Department field examiners prior to a compliance examination. It is through review of complaints and onsite examination that the Department is often able to identify potential patterns of violations and, where appropriate, take enforcement actions on behalf of the state of Idaho.

III. ISSUES PRESENTED ON APPEAL

A. Whether it is lawful or just for the District Court to disregard the laws of redemption which grant us the right to possess the property during the redemption period.

B. Whether it is lawful or just for the District Court to ignore our requests and right to sell a two-parcel property one parcel at a time and to be allowed to direct the order of sale.

C. Whether it is lawful or just for a District Court to fail to provide memorandum opinions or cite authority, so decisions and renderings can be properly put before the Supreme Court for reversal and whether this type of procedural manipulation can be relied upon to uphold or execute judgment.

D. Whether it is lawful or just to foreclose on a property or execute judgment against a property when a debtor was prevented from performance, never given opportunity to cure the alleged default amount being used to claim default, and was denied their contractual right to provide claims and defenses.

E. Whether it is lawful or just to obtain and execute judgment acquired through mortgage usury and to add accruing interest to that judgment when the prevailing party lied, obstructed justice, never provided an account for missing payments held in suspense accounts, failed to credit substantial escrow moneys, failed to explain why transactions were missing from account records, PHH and Chase contradict their own evidence, opposing parties have admitted the claimed default is inaccurate, the debtor has provided testimony no default existed, the banks have refused to provide discovery based on false ownership claims, and other such record keeping errors exist.

F. Whether it is lawful or just to issue a summary judgment when the judgment amount was never properly established, is disputed, changed multiple times due to inaccurate record keeping, and conflicting claims still exist.

G. Whether it is lawful or just to issue sanctions against the prevailing party and what is the appropriate sanction when it is proven the prevailing party lied, presented contradictory facts and evidence, and presented proven to be fraudulent affidavits and testimony to the court and obtained their summary judgment through fraud and judicial manipulation.

H. Whether it is lawful or just to rely upon a summary judgment obtained through fraud, judicial prejudice, procedural manipulation, and admitted attorney negligence to uphold and execute a second summary judgment.

I. Whether it is lawful or just to uphold a judgment that was fraudulently obtained.

J. Whether it is lawful or just for a judgment to be executed when the Court has made procedural mistakes, discrepancies of fact exist, and assignments of errors are undeniably present.

K. Whether it is lawful or just for a judgment to be executed based solely on procedural manipulation and judicial prejudice when justice has not been served and a victim has reached out to the Supreme Court to uphold laws in place to protect them, save their ranch, and protect their rights and interests.

L. Whether it is lawful or just for attorney fees to be granted to PHH when they illegally attempted a non-judicial foreclosure, purposefully presented false and contradictory statements and evidence, and intentionally concealed evidence.

M. Whether it is OK for an attorney to intentionally lie and mislead the court and the opposing party thereby violating Idaho’s Attorney Oath – “I will never seek to mislead a court or opposing party by false statement of fact or law and will scrupulously honor promises and commitments made”.

N. Whether it is lawful for an attorney practicing law in Idaho to commit felonious crimes, file and record falsified records and evidence and intentionally conceal and withhold evidence.

O. Whether it is lawful or just for an entity beside PHH to purchase the property with a credit bid when the decree of foreclosure only permits PHH to credit bid.

P. Whether it is just to allow the summary judgment for foreclosure to stand when PHH and Idaho have entered into a settlement agreement to “assist borrowers harmed by PHH during 2009-2012 as a result of severe operational deficiencies in mortgage servicing identified during a multistate examination” which validates and affirms our defenses and claims as expressed throughout this judicial process. See Exhibit 1 - Department of Finance Enters into Settlement Agreement With PHH Mortgage Corp

Q. Appellant claims attorney fees on appeal in accordance with the terms of the alleged Note § 6(E) (R p. 41) which provides for the recovery of attorney fees and I.C. §§ 12- 120 and 12-121 which award attorney fees to the prevailing party of a civil suit.

IV. ARGUMENT 

LEGAL STANDARDS

“Appeals from and order of summary judgment are reviewed de novo, ‘and this Court’s standard of review is the same as the standard used by the trial court in ruling on a motion for summary judgment.’ Curlee v. Kootenai Cnty. Fire & Rescue, 148 Idaho 391, 394, 224 P .3d 458, 461 (2008) (citations omitted).

 

Summary judgment is appropriate if ‘the pleading, depositions, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ I.R.C.P 56(c).” Trotter v. Bank of New York Mellon, 152 Idaho 842, 275 P .3d 857 (2012).

 

According to this standard, “All disputed facts are to be construed liberally in favor of the nonmoving party, and all reasonable inferences that can be drawn from the record are to be drawn in favor of the nonmoving party.” Mackay v. Four Rivers Packing Co., 145 Idaho 408, 410, 179 P.3d 1064, 1066 (2008). If reasonable people might reach a different conclusion from conflicting inferences based on the evidence then the motion must be denied. Id.

 

“If the evidence is conflicting on material issues or supports conflicting inferences, or if reasonable minds could reach differing conclusions, summary judgment must be denied.”

Doe v. Sisters of the Holy Cross, 126 Idaho 1036, 1039, 895 P .2d 1229, 1232 (Ct. App. 1995).

 

“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)

 

“On a motion for summary judgment, the Court does not weigh evidence or determine truthfulness of allegations; instead, it determines the existence of genuine issues of material fact… Direct testimony of the non-movant must be believed… (citations omitted).” Sparks v. Allstate Medical Equipment, INC., Case No. 1:14cv00166EJLCWD

 

“Therefore, accepting the rationale of the Supreme Court in Cooter and

considering our own standard for reviewing other awards of attorney fees, we conclude that the abuse of discretion standard is more compatible with our view of the appropriate role of our appellate courts in reviewing the award of sanctions under I.R.C.P. 11(a)(1)

...

the abuse of discretion standard… is: (1) whether the trial court correctly perceived the issue as one of discretion; (2) whether the trial court acted within the outer boundaries of its discretion and consistently with the legal standards applicable to the specific choices available to it; and (3) whether the trial court reached its decision by an exercise of reason.

The appropriate focus of the trial court should have been whether McCabe "made a proper investigation upon reasonable inquiry." Durrant v. Christensen, 117 Idaho at 74, 785 P.2d at 638. To the extent the trial court did not give appropriate focus to its inquiry, it did not act consistently with the legal standards applicable to the choice it had to make.” Sun Valley Shopping Ctr. v. Idaho Power, 119 Idaho 87, 803 P.2d 993 (1991)

 

A. Did the District Court err in refusing to vacate or amend judgment in order to conform to Idaho foreclosure and redemption laws?

1. Is it lawful or just for the District Court to disregard the laws of redemption which grant us, the Nickersons, the right to possess the property during the redemption period?

            In ¶11 of the Order of Sale and Decree of Foreclosure (CR p. 208), the District Court violated Idaho law by stating,

“That after the confirmation of the sale of Subject Property, the purchaser or purchaser at such sale, or their heirs or assigns, be let into possession of the premises so sold on production of the certificate of sale or a duly authenticated copy thereof, and that each and every other party to this action who may be in possession of the premises, under them or either of them shall deliver to such grantee or grantees named in such certificate of sale possession of such portion of the premises as shall be described under the certificate of sale.”

 

According to I.C. § 6-101, “sales of real estate under judgments of foreclosure of mortgages and liens are subject to redemption”, and according to I.C. §§ 11-310, 401-403 we, the Nickersons, remain in possession of the property during the one year redemption period and until production of the Sheriff’s Deed which does not occur until the redemption period has expired.

A mortgage foreclosure decree, providing that the purchaser of mortgaged premises at the foreclosure sale should be let into possession thereof,and should have possession on production of sheriff’s deed, conformed to the statute relating to redemption or realty from mortgage foreclosure sale, and cannot be construed to mean that mortgagee or any other purchaser at such sale was to have possession of the mortgaged property prior to one year from the date of sale or before the issuance of the sheriff’s deed. Eastern Idaho Loan & Trust Co. v. Blomberg, 62 Idaho 497, 113 P .2d 406 (1941) 

 

The statements in the Order of Sale and Decree of Foreclosure granting immediate possession upon production of the Sheriff’s Certificate of Sale are unlawful and cannot be construed to mean any purchaser at the sale will be let into possession of our property, the Nickerson property, prior to one year from the date of sale or before the issuance of the Sheriff’s Deed which is not issued until the year of redemption has expired. Therefore, the District Court erred by not amending its order and decree to conform to Idaho law.

2. Is it lawful or just for the District Court to ignore our requests and rights to sell a two-parcel property one parcel at a time and to be allowed to direct the order of sale?

According to I.C. § 11-304, 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. In their motion to vacate or amend, we requested the District Court to amend its Judgment to conform to I.C. § 11-304 (CR pp. 211-212) and allow the parcels to be sold separately in the order we desired. However, the District Court denied this request. Therefore, the District Court acted unlawfully and unjustly and the order of sale and decree of foreclosure must be vacated or amended to conform to Idaho law.

B. Did the District Court err in denying our, the Nickersons, Motion to Quash Execution and Judgment?

            The District Court denied our motion because “Nickersons have not provided any factual or legal basis for relief from Judgment.” Order Denying Motion to Quash Execution and Judgment and Motion for Sanctions (CR pp. 200-201). However, we did provide both a factual and legal basis for relief from judgment.

1) The District Court, Chase and PHH all provided differing and contradictory facts regarding the true chain of title and true holder of the note (CR p. 6), and we provided Chase’s response to a RESPA Qualified Written Request dated January 10, 2014, in which Chase stated the note was in their possession and that they were the investor on the loan (R p. 1232). Therefore, there is a genuine issue of material fact regarding PHH’s standing to foreclose and summary judgment for PHH must be overturned. “If the evidence is conflicting on material issues or supports conflicting inferences… summary judgment must be denied.” Doe, Id.

2) Chase and PHH presented contradictory testimony and evidence of default (CR p.7). PHH’s witness contradicted himself by claiming we missed 10, 13 and then 9 payments. PHH in their memorandum clamed we missed 11 payments. Chase’s account history states the principal balance on the account was $0.00 in November 2009 and $-1,186.90 in January 2010 (R p. 766). PHH’s witness claimed the principal balance was $261,170.62 and then provided an account history that demonstrated the principal balance was $259,983.72 (R p. 1038, 1066). We provided firsthand testimony of no default and malicious prevention of performance and requested discovery that was readily available to corroborate our claims. Therefore, there are genuine issues of material fact regarding the default claimed by PHH and according to the summary judgment standard above “All disputed facts are to be construed liberally in favor of the nonmoving party, and all reasonable inferences that can be drawn from the record are to be drawn in favor of the nonmoving party.” Mackay, Id. Summary judgment was unlawful and must be overturned.

3) PHH admitted the default claimed in their complaint was inaccurate. Lawfully that should have dismissed their claim and forfeited any summary judgment attempts since they admitted to a genuine issue of material fact regarding the original default claimed. In addition, in July 2012, PHH falsely admitted they were unaware of any payments made or not made by us, the Nickersons, to Chase (R p. 742). In April 2010, we provided evidence of payments made to Chase to PHH when we were disputing PHH’s claims of default (R p.901). In violation of RESPA, 12 U.S.C. § 2605(e)(2)(B), PHH did not investigate our dispute and did not provide us with a written explanation of our alleged default. (CR p.8). Therefore, due to the fact the alleged default was proven to be wrong and PHH violated the law requiring them to investigate our dispute of their alleged default, summary judgment in favor of PHH must be vacated. “On a motion for summary judgment, the Court does not weigh evidence or determine truthfulness of allegations; instead, it determines the existence of genuine issues of material fact… Direct testimony of the non-movant must be believed… (citations omitted).” Sparks, Id.

In addition to the three points above, in our motion to reconsider (CR pp. 215-224), we clearly set forth the undeniable fact that according to evidence in the record (R p. 1232), that was prejudicially ignored by the District Court and this Court, Chase claimed they held our Note and Mortgage during this litigation legally barring PHH’s standing to foreclose. Idaho law, I.C. § 28-1-201, specifically defines holder as the person in possession of a note that is payable either to bearer or the person that is in possession, and Idaho law, I.C. § 28-3-301, specifically defines the person entitled to enforce the note as the holder of the note or a nonholder in possession of the note who has the rights of the holder. In both cases, the note must be in your possession. The evidence presented is clear – PHH did not have the note in its possession. Therefore, according to Idaho law and the legal standards for summary judgment, “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.” Leslie, Id. The District Court should have quashed execution and vacated summary judgment in favor of PHH.

C. Did the District Court err in denying our, the Nickersons, Motion for Sanctions when it was proven PHH lied, presented contradictory facts and evidence, and presented proven to be fraudulent affidavits and testimony to the Court and obtained their summary judgment through fraud and judicial manipulation?

The District Court denied our motion stating, “Sanctions obviously are not warranted against PHH, the prevailing party…” Order Denying Motion to Quash Execution and Judgment and Motion for Sanctions (CR pp. 200-201). The District Court did not provide explanation as to why PHH was immune from sanctions for breaking the law. Granting impunity from broken laws and acting as a trier of fact to deem PHH the prevailing party in a summary judgment process displays extreme overreach, constitutes judicial tyranny and demonstrates extreme prejudice. No right can rise from an illegal act so the illegal acts committed reversed PHH’s position as the prevailing party. Additionally, this Idaho Supreme Court determined Chase lied and reduced their request for fees even though this Idaho Supreme Court affirmed Chase was the prevailing party in the FSJ. This determination affirmed Chase was the Servicer only and not an Owner of the Note. See order on costs and fees, September 13, 2016. Therefore, as demonstrated in the Statement of Facts, in the issues presented below, and in the fact that this Court affirmed the District Court’s contradictory facts, PHH submitted pleadings, motions and other papers to the Court that were known to be or should have been known to be false, misleading and not grounded in fact to obtain summary judgment. Thus, since this Supreme Court already affirmed PHH lied (The Supreme Court’s affirmation of the FSJ established PHH lied: County records were produced by PHH to show a chain of title from Coldwell Banker to Chase and then from Chase to PHH. PHH claimed they had received the Note from Fannie Mae. Chase and Fannie Mae provided conflicting claims which refuted all claims of PHH regarding their alleged ownerships.), the question to be determined by the District Court was: what is the most appropriate sanction to be administered against PHH? Clearly, the District Court abused its discretion and violated the standard for evaluating a request for sanctions by simply stating PHH was the prevailing party. One of the issues to be addressed by the District Court in evaluating whether sanctions were appropriate was whether PHH and its’ attorneys made a proper investigation upon reasonable inquiry. Sun Valley, Id. All of the evidence and circumstances surrounding this case demonstrate PHH and its’ attorneys did just the opposite by intentionally presenting false and misleading pleadings to the court. Therefore, the District Court abused its discretion and sanctions against PHH and its’ attorneys are appropriate.

We contend since PHH’s summary judgment for foreclosure was granted based upon PHH’s false and misleading statements and facts, the most appropriate and just sanction is PHH’s summary judgment for foreclosure be vacated. This sanction is not moot because even though the foreclosure sale has unlawfully occurred, we remain in possession of the property, the foreclosure is subject to redemption, Genworth Financial purchased the property with a credit bid, so no monies exchanged hands, and no prejudice could be experienced by the purchaser. Therefore, the most appropriate sanction on PHH is to overturn the summary judgment they lied to obtain, vitiate the foreclosure sale and allow us to pursue our claims against PHH and Chase.

The following is a list of issues with citations to the record that demonstrate sanctioning PHH by vacating their fraudulently obtained summary judgment and vitiating the foreclosure sale is the only just outcome to this appeal.

1. Is it lawful or just to obtain or execute judgment acquired through mortgage usury and to add accruing interest to that judgment when the prevailing party lied (Statement of Facts – E-G, M, V, DD, FF-HH, and KK-RR), obstructed justice (Statement of Facts – L-N, Z, BB, CC, and II), never provided an account for missing payments held in suspense accounts (R p. 1066), failed to credit substantial escrow moneys (R p. 692), failed to explain why transactions were missing from account records, the two banks contradict their own evidence (Statement of Facts – A, E-H, K, P-R, MM), opposing parties have admitted the claimed default is inaccurate (Statement of Facts – M, GG, HH), the debtor has provided testimony no default existed (Direct testimony of Charles and Donna Nickerson – R pp. 109, 110, 1086, 1087, 1290, 1291, SAR pp. 46-56), the banks have refused to provide discovery based on false ownership claims (R pp. 747-751, 759, SAR p. 49), and other such record keeping errors exist?

According to the summary judgment legal standards,

Direct testimony of the nonmovant must be believed – Sparks, Id.  

All disputed facts are to be construed liberally in favor of the nonmoving party – Mackay, Id.

If the evidence is conflicting on material issues, summary judgment must be denied – Doe, Id.

The evidence of the non-movant is to be believed – Leslie, Id.,

 

It is and was unlawful and unjust to grant summary judgment to PHH or allow any judgment in their favor to be granted or executed. Common law, codified law, and legal maxims have long supported and upheld that no right to action can arise from an illegal act. Therefore, it is appropriate and just to vacate that judgment at this time.

            2. Is it lawful or just to issue a summary judgment when the judgment amount was never properly established, is disputed, changed multiple times due to inaccurate record keeping, and conflicting claims still exist (Statement of Facts – I-M, U-Z, GG, HH, MM)?

According to the summary judgment legal standard – “If the evidence is conflicting on material issues or supports conflicting inferences, or if reasonable minds could reach differing conclusions, summary judgment must be denied.” Doe, Id., It is and was not lawful or just to issue summary judgment in the presence of genuine issues of material fact surrounding whether a true or accurate default exists or has been properly presented to this Court; when testimony of the nonmoving party asserts there is no default; when PHH and Chase intentionally thwarted providing vital discovery regarding default based on lies and false misrepresentations and refused to provide access to our records and testimony from employees with firsthand knowledge of the true occurrences of this matter; when Chase and PHH presented no admissible evidence or testimony with personal knowledge to substantiate their default claims or refute ours; when Chase and PHH relinquished and impeached their credibility and rights to be heard in this matter with their conflicting, contradictory and inaccurate claims and assertions; and other such issues exist. Therefore, to correct this unlawful and unjust judgment, this Court must vacate the summary judgment granted to PHH, void the foreclosure sale, and allow us to pursue our claims.

            3. Is it lawful or just to foreclose on a property or execute judgment against a property when a debtor was prevented from performance (Statement of Facts – J, L,U-Z), never given opportunity to cure the alleged default amount being used to claim default (Statement of Facts – JJ), and was denied their contractual right to provide claims and defenses (R p. 34)?

According to the alleged Mortgage (alleged Deed of Trust), “22. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration…The notice shall specify: (a) the default…The notice shall further inform the Borrower of …the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale.”, we have the right to present our claims and defenses. In addition, the prevention doctrine prohibits PHH from any complaint of nonperformance.

“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

 

In violation of federal law, PHH refused to research or validate their claim of default even after we provided proof of payments that demonstrated we had not defaulted and had established our commitment and desire to keep our property (Statement of Facts – U-Z). PHH fatally failed to present an accurate default that is rooted in fact or reality to us or the Court at any time. Therefore, no opportunity to cure any alleged default and no proper notice has ever been offered as required by law and contract. As demonstrated throughout the factual record, PHH refused to work with us in any way, thereby, preventing our performance and denying us our contractual right to fulfill our obligations. Therefore, it was not lawful or just to allow PHH to foreclose on our property. Thus, this Court must void the foreclosure sale and allow us to pursue our claims against PHH and Chase.

            4. Is it lawful or just to rely upon a summary judgment obtained through fraud (Statement of Facts in their entirety), judicial prejudice, procedural manipulation, and admitted attorney negligence (SAR pp. 60-70) to uphold and execute a second summary judgment?

According to the legal maxim established through the centuries – fraud vitiates everything – and the legal precedent, “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). PHH and Chase were not properly compelled to provide records, access to employee testimony, proof of chain of title, and to answer for fraudulently crafted and fabricated documents or contradictory testimony and evidence. PHH and Chase presented a broken and contradictory chain of title to establish ownership history; inaccurate, conflicting and inadmissible evidence to claim default; records fraught with errors, omissions and misrepresentations to support their claims; and other such assertions worthy of dismissal of their case. Our claims were unjustly dismissed, and all subsequent judgments were obtained by relying upon these lies, contradictions and illegal acts. Judgment occurred without our knowledge, input or proper representation. It was and is not lawful or just to rely upon the FSJ, which is rooted in fraud, to uphold PHH’s summary judgment for foreclosure. Therefore, this Court must sanction PHH by vacating their summary judgment for foreclosure and vitiate the foreclosure sale that has unlawfully occurred.

            5. Is it lawful or just to uphold a judgment that was fraudulently obtained (R pp. 1232, 1429-1435)?

“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).

 

According to Tusch, it is not lawful or just to uphold a judgment that was fraudulently obtained because “fraud vitiates everything it touches.” The District Court exhibited extreme prejudice by ignoring evidence of fraud regarding the true and current ownership of our property and acknowledging genuine issues of material fact as to whether any debt exists to PHH and whether or not a default actually occurred. We provided testimony and were to be believed. PHH and Chase repeatedly lied and misrepresented the truths of the matter to the Court and were inconceivably granted impunity and opportunity to simply change their testimonies. Any de novo review of the record demonstrates this judgment was fraudulently obtained. Therefore, this Court must vitiate the foreclosure sale, vacate the summary judgment in favor of PHH, and allow us to pursue our claims against PHH and Chase because right and fraud never dwell together.

            6. Is it lawful or just for a judgment to be executed based solely on procedural manipulation and judicial prejudice – the District Court refused to consider evidence and reconsider its rulings because of procedural timeliness alone (R pp. 1247, 1791) – when justice has not been served and a victim has reached out to the Supreme Court to uphold laws in place to protect them, save their ranch, and protect their rights and interests?

“In addressing the effect of noncompliance with procedural statutes and rules, the Court in Stoner v. Turner, 73 Idaho 177, 121, 247, P.2d 469, 471 (1952), said:

 

The object of statutes and rules regulating procedure in the courts is to promote the administration of justice. Those statutes and rules which fix the time within which procedural rights are to be asserted are intended to expedite the disposition of causes to the end that justice will not be denied by inexcusable and unnecessary delay. But, except as to those which are mandatory or jurisdictional, procedural regulations should not be so applied as to defeat their primary purpose, that is, the disposition of causes upon their substantial merits without delay or prejudice.”

“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. A determination entails a finding of the facts and an application of the law in order to resolve the legal rights of litigants who hope to resolve their differences in the courts. The ‘liberal construction’ of the rules required by Rule 1, while it cannot alter compliance which is mandatory or jurisdictional, will ordinarily preclude dismissal of an appeal for that which is but technical noncompliance. This will be especially so where no prejudice is shown by any delay which may have been occasioned… Sound judicial discretion properly exercised will reflect the judicial policy of this State developed over many years by case law, and lying within the spirit of liberality mandated by Rule 1.” Bunn v. Bunn, 99 Idaho 710, 587 P.2d 1245 (1978).

 

“Appeals from an order of summary judgment are reviewed de novo, ‘and this Court’s standard of review is the same as the standard used by the trial court in ruling on a motion for summary judgment.’ Curlee v. Kootenai Cnty. Fire & Rescue, 148 Idaho 391, 394, 224 P.3d 458, 461 (2008) (citations omitted).

 

Black’s Law Dictionary 10th edition defines appeal de novo as “an appeal in which the appellate court uses the trial court’s record but reviews the evidence and laws without deference to the trial court’s rulings.”

 

According to 1) Bunn “procedural regulations should not be so applied as to defeat their primary purpose, that is, the disposition of causes upon their substantial merits without delay or prejudice… Sound judicial discretion properly exercised will reflect the judicial policy of this State developed over many years by case law, and lying within the spirit of liberality mandated by Rule 1”; 2) Curlee &ldqo;Appeals from an order of summary judgment are reviewed de novo”; and 3) Black’s “appellate court…reviews the evidence and laws without deference to the trial court’s rulings”. It is not lawful or just for summary judgment to be rendered based on procedural manipulation and judicial prejudice, nor is it lawful or just for this Court to ignore its mandate to perform a de novo review of the evidence and laws without deference to the trial court’s rulings. PHH does not own or have lawful beneficial interest in our property. We did not default. We were never allowed opportunity to challenge or cure the alleged default PHH is claiming in this litigation. We made every effort to fulfill any contractual obligations and were maliciously prevented from performance or relief. PHH and Chase have provided contradictory and conflicting evidence and testimony that impeaches all their claims, so no claim, assertion or accusation lawfully stands against us in this matter. The record in its entirety demonstrates no judgments rendered against us have any factual foundations or basis whatsoever and our constitutional, contractual and procedural rights to defend ourselves against fraud, collusion and prevention of performance have been ignored and silenced by the Idaho judiciary. Therefore, PHH’s grant of summary judgment for foreclosure must be overturned, the foreclosure sale vacated, and we must be permitted to pursue our claims.

            7. Is it Lawful or just for a District Court to fail to provide memorandum opinions or authority so decisions and renderings can be properly put before the Supreme Court for reversal and whether this type of procedural manipulation can be relied upon to uphold or execute judgment?

In the District Court’s June 11, 2014, Order Dismissing Motions to Reconsider, the Court stated:

            “After examining the motions, the court treated the motions as motions to reconsider the court’s prior judgment; the court’s denial of the Nickersons’ motions to amend their pleadings; the court’s prior motion granting plaintiff’s motion to strike Nickersons’ affidavit in support of summary judgment; the court’s ruling on the prior motion to strike the second affidavit of Casperite in support of summary judgment; the court’s denial of the Nickersons’ motion to suppress; and court’s failure to consider the withdrawal of Nickersons’ prior counsel.

            The court granted summary judgment based upon the evidence submitted to the court as of the oral argument on the plaintiff’s second motion for summary judgment…

            After oral argument, the Nickersons submitted numerous documents and motions. The court has denied all of those prior motions.”

 

Justice is the guardian of liberty. The judiciary system ensures equal access to justice at the District Court level by providing oversight at the Supreme Court level. Allowing a District Court Judge to overreach authorities granted to it by acting as a trier of fact in a summary judgment proceeding while prejudicially manipulating civil procedures revokes equal access to justice, holds liberty hostage through judicial tyranny, and negates the merit and value of any systemic guardianship. This is especially true when Judge Michael Griffin ignored all evidence and arguments presented by us and even declared we were spinning our wheels and could not find any relief in his courtroom. The District Court’s failure to provide an order or memorandum opinion denying our motion to amend our pleadings, motion to strike the second affidavit of Casperite, or motion to suppress granted the Court unjust and unlawful impunity from reversal. The District Court provided no opinion to argue on the prior appeal. Consequently, this Supreme Court waived those issues on appeal and justice was denied a voice. According to Bunn and Curlee, this procedural manipulation is not lawful or just. Allowing such abuse of discretion and injustice to prevail without consequence can only serve to encourage judicial tyranny and does not serve to promote justice. Thus, this Court should not have upheld the summary judgment and should have based its opinion regarding our amended pleadings upon the precedent presented by us in our prior appeal (Appellant’s Reply Brief – pp. 15-16) and granted us the opportunity to present our amended pleadings.

“As Foman and Smith declare, a district courts refusal to grant leave to amend without any justifying reasoning is per se, an abuse of discretion.” Clark v. Olson, 110 Idaho 323, 715 P.2d 993 (1986).

 

            8. Is it lawful or just for a judgment to be executed when the Court has made procedural mistakes (See 6 and 7 above), discrepancies of fact exist (Statement of Facts) and assignments of errors are undeniably present?

It is not lawful or just for any execution of judgment to occur that demonstrates prejudice against a litigant. Idaho law grants equal access to justice. Ignoring evidence in the record in the presence of contradictory opinions, determinations, rulings, assertions, claims, and demonstrated malice is judicial tyranny and establishes extreme judicial overreach. Justice for all was not intended to mean justice for most. The opinions rendered by the Courts in this litigation are conflicting and the unsupported and contradictory claims by PHH create impossibility in establishing standing. The truth is clear in this case. Laws have been broken and Idaho Courts have refused to uphold or enforce the laws in place to stop our home from being wrongfully foreclosed upon. This is not lawful or just, and it is time for this Idaho Supreme Court to do the right thing and grant relief to our family, the Nick and Donna Nickerson Family.

            9. Is it lawful or just for attorney fees to be granted to PHH when they illegally attempted a non-judicial foreclosure, purposefully presented false and contradictory statements and evidence, and intentionally concealed evidence (Statement of Facts – B, E-G, M, N, V-Z, AA, DD-RR)?

Centuries of law have determined it is not lawful or just to grant attorney fees to PHH for committing illegal acts, for presenting false and conflicting evidence and for concealing evidence.

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

Frustra legis auxilium quaorit qui in legem comittit – He who offends against the law vainly seeks the help of the law.

Fraus omnia vitiat Fraud vitiates everything.

Fraus est celare fraudemThe fact it is a fraud to conceal a fraud.

Fraus et jus nunquam cohabitant – Fraud and justice never dwell together.

 

Doing so exceeds the jurisdiction and authority of this Supreme Court, because no right can arise from an illegal act. Further, displaying such extreme prejudice and blind affirmation defies this Supreme Court’s role to provide legislative accountability and mandate to ensure equal access to justice. It is clearly an error of judgment to punitively damage us for doing the right thing, telling the truth, and defending ourselves and the World At Large against mortgage fraud, abusive debt collection, and malicious theft. Evidence of comprehensive fraud; broad criminal activity; and severe, significant and substantial abuse is in the record. We are innocent victims who have been attacked without cause or right. We committed no action or inaction to provoke, warrant or justify this attack we are being forced to defend against. We appealed to the Idaho judiciary for relief from fraudulent claims. To allow the District Court to reward PHH with a summary judgment in their favor in the presence of genuine issues of material fact and clear evidence of fraud, systematically denies our rights. This Supreme Court cannot defile its integrity and legitimacy by affirming a judgment which was secured unlawfully and unjustly. Therefore, this Supreme Court must reverse any judgment in favor of PHH and recognize PHH cannot be rewarded attorney fees for breaking the law; nor be reimbursed for legal costs incurred in their attempts to unlawfully steal our property and equity; nor can their personal vendettas against our family and our Christian values be funded through judicial assistance or court ordered unjust gain.  

            10. Is it lawful or just for an attorney to intentionally lie and mislead the court and the opposing party thereby violating Idaho’s Attorney Oath and for an attorney practicing law in Idaho to commit felonious crimes, file and record falsified records and evidence and intentionally conceal and withhold evidence?

Idaho’s Attorney Oath States, “I will never seek to mislead a court or opposing party by false statement of fact or law, and will scrupulously honor promises and commitments made”. I.C. § 3-201. Duties of Attorneys states “4. To employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and never seek to mislead the judges by an artifice or false statement of fact or law.” The Idaho Rules of Professional Conduct rule 8.4 Misconduct states, “(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”

We have demonstrated that PHH’s and Chase’s attorneys have violated all of the above and intentionally concealed and withheld evidence. R p. 1085, L. 18 – p. 1086, L. 19; p. 1091, L. 14-21; p. 1093, L. 7 – p. 1100, L. 3; p. 1100, L. 14 – p. 1101, L. 18; p. 1177; p. 1179, L. 19 – p. 1182, L. 17; p. 1190, L. 10 – p. 1193, L. 16; p. 1194, L. 15 – p. 1196, L. 16; p. 1198, L. 19 – p. 1205, L. 23; p. 1429, L 1 – p. 1438, L. 14; p. 1453, L. 1 – p. 1477, L. 3; p. 1527, L. 18 – p. 1537, L. 4; p. 1538, L. 25 – p. 1565, L. 11; SAR p. 33, L. 2 – p. 42, L. 26. Therefore, the judgments and orders entered against us must be vacated, PHH’s complaint must be dismissed with prejudice, we must be allowed to pursue our amended counterclaim and third party complaint and the attorneys representing PHH and Chase must be sanctioned for allowing this case to be prosecuted and for inflicting severe, significant and substantial damages upon our family.

Further, Chase, PHH and their attorneys of record intentionally filed and recorded false records which violates I.C. § 18-3203 and constitutes felonious crimes. R p. 1453, L. 1 – p. 1454, L. 2 and p. 1595, L. 12 – p. 1596, L. 3. For justice to be served in Idaho, this Court must hold their violations fully accountable to the law. Their actions require this Idaho Supreme Court to establish whether the Idaho Attorney’s Oath, I.C. § 3-201, the Idaho Rules of Professional Conduct, and the laws in place to protect Idaho property owners, have merit or validity in the State of Idaho. The Supreme Court and the Idaho judiciary establish the strength and authority of the laws and oaths guarding property ownership and civil liberties in Idaho. Their integrity in fulfilling their duties dictates whether attorneys who lie, commit fraud, purposefully deceive, mislead the judge and opposing counsel, withhold and conceal evidence and commit felonious crimes in Idaho will suffer just consequence or be granted unlawful impunity. No more excuses. Do the right thing.

D. Was it lawful or just to allow Genworth Financial to purchase our, the Nickersons, property at the foreclosure sale with a credit bid?

According to the Order of sale and Decree of Foreclosure (CR p. 207, #6), only the Plaintiff was permitted to credit bid at the foreclosure sale. Genworth Financial (“Genworth”) is not the Plaintiff, and their purchase voids the enforceability of the sale.

Genworth’s involvement with our loan originated in 2002 as the PMI provider. We exceeded the equity requirements to cancel their premiums in 2003, but Genworth violated the cancellation agreements and obdurately refused to cancel the premiums without our pursuing legal action.

As the insurer of the loan, Genworth, has knowledge and internal documentation PHH would not research or work with us to resolve the disputed default in 2010 when the alleged default occurred. Genworth’s legal department researched our frau concerns and concluded there was no lawful reason for us to lose our property; confirmed PHH was clearly violating lending and debt collection laws; provided legal strategies and directions to help us save our ranch and stop PHH’s abusive debt collection practices; informed PHH they were breaking the law; and sent demands PHH immediately work with us to resolve this conflict. PHH refused.

Genworth knows the truths of this matter. Purchasing the property at a severely reduced fraction of its true market and appraised values demonstrates an extreme conflict of interest and implicates Genworth in collusion and criminal mischief. Therefore, it was not lawful or just for Genworth to purchase the property with a credit bid.

E. Is it just to allow the summary judgment for foreclosure to stand when PHH and the Idaho Department of Finance have entered into a settlement agreement to “assist borrowers harmed by PHH during 2009-2012 as a result of severe operational deficiencies in mortgage servicing identified during a multistate examination” which validates and affirms our, the Nickersons, defenses and claims expressed throughout this judicial process? See Exhibit 1 - Department of Finance Enters into Settlement Agreement - Idaho Department of Finance NEWS RELEASE dated January 3, 2018

This settlement agreement identified five (5) practices that “may otherwise violate the laws and regulations” of Idaho and related federal law all of which we have experienced and endured in this unlawful and fraudulent foreclosure action and have already claimed and demonstrated to the Idaho Courts throughout this entire judicial process. It is time for this Court to right this extreme miscarriage of justice. It is time to hold PHH accountable in this case for their persistent, purposeful and perpetual violations of Idaho laws and regulations and related federal law. The settlement agreement states:

WHEREAS, Reports of Examination and related inquiries and investigations by the State Mortgage Regulators identified practices that may otherwise violate the laws and regulations of the Participating States and related federal law; including, but not limited to, the allegations and releases that are the basis of this Agreement, which specifically include:

1) Lack of controls related to document executions, including, unauthorized execution, inconsistent signatures, faulty assignment, improper certification and notarization, and other related practices affecting the integrity of documents relied upon in the foreclosure process; (See Statement of Facts – N, P-T, and OO, R. p. 1499, L.5 – p.1504, L.13, and SAR p. 80)

2) Deficiencies in servicing, foreclosure, loan modification, and other loss mitigation processes; (See Statement of Facts – G, J-M, U-Z, GG, MM, RR, TT)

3) Deficiencies related to internal controls, including inadequate staffing levels and lack of independence;

4) Deficiencies in control and oversight of third-party providers, particularly local foreclosure counsel; and (See § C.9.. supra)

5) Deficiencies in document maintenance processes, including but not limited to, failure to retain required documents and failure to produce documents requested in tandem with the examinations. (See Statement of Facts – Z, EE and FF)

Settlement Agreement and Consent Order PHH Mortgage Corporation Notes added to demonstrate the Nickersons have documented PHH’s violations throughout this action

 

V. CONCLUSION

We, the Nickersons, have produced and presented volumes of evidence to the Idaho Courts demonstrating PHH lied, presented false and misleading claims and evidence, concealed evidence and committed fraud both on us and the Courts to obtain summary judgment. In addition, the District Court erred by refusing to amend its judgment to conform to Idaho law. Therefore, PHH must be sanctioned and the District Court’s Order of Sale and Decree of Foreclosure must be amended to conform to Idaho law.

Further, the recently announced settlement agreement between PHH and Idaho affirms and corroborates all of our claims regarding PHH’s fraudulent and unlawful actions are merit based and require action. This settlement agreement is intended to prevent PHH from continuing to harm Idaho consumers, such as our family, who have irrefutably demonstrated they have been harmed by PHH’s unlawful business practices. It is time for this Court to stop PHH’s abuse of our family and right the wrong done to us. It is time to correct this miscarriage of justice. It is time to reverse the summary judgment and allow us to pursue our claims against PHH.

Wherefore, we request this Court vacate summary judgment, vitiate the foreclosure sale, and allow us to pursue our claims against PHH and Chase. If this Court refuses to vacate summary judgment, then we request this Court determine another appropriate sanction and require the unlawful sale to be vacated and the Order of Sale and Decree of Foreclosure to be amended to state the purchasers will be let into possession after the period of redemption has expired and the Sheriff’s Deed has been issued, and that the two parcels are to be sold separately at our direction.




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