Motion For Sanctions

COMES NOW, Defendants, Charles and Donna Nickerson, in accordance with I.R.C.P. 11(c), move this Court to sanction Chase and PHH for signing and submitting pleadings, motions and other papers to this District Court that were known to be or should have been known to be false, misleading and not grounded in fact. Their joint actions have denied us access to justice, robbed us of our right to due process, and prevented us from finding relief at the District Court and Supreme Court levels. They have maliciously caused a record to be created that is incomplete and based on falsehoods. Judge Griffin’s judgments rely solely upon these falsehoods and are therefore not enforceable by law, fact, or justice. This has created needless pain, suffering, and damages for our family and makes a mockery of finding justice in these proceedings.

PHH has now moved this Court to execute judgment when the appeal has not been fully resolved to circumvent justice and escape full liability for their actions. This Court has rightly granted a stay pending appeal. Since the appeal is not yet fully resolved, PHH’s motion to set aside stay is inappropriate and must be denied. The Idaho Supreme Court has determined Chase lied in their pleadings, but have yet to rule on the full consequences of Chase’s deception.

CHASE

In conjunction with and in support of this motion we are submitting a true and correct copy of our motion for sanctions against Chase that was submitted to the Supreme Court. As stated, the Supreme Court has not yet acted upon this motion. The determination by the Supreme Court on this motion will prove justice has been thwarted and that PHH and Chase have sabotaged all proceedings by Judge Griffin at the District Court and Supreme Court levels.

Among other errors, Chase has made the following statements that are false, not supported by any evidence and contradict the facts determined by the District Court and the Supreme Court.

·         The Nickersons missed 11 payments while Chase was servicing the note.

·         Freddie Mac purchased the note from Coldwell Banker Mortgage.

·         PHH repurchased the note from Freddie Mac.

·         Chase never owned the note.

All of the above effect genuine issues of material fact and since all claims by PHH and Chase have been proven to be false, in addition to any monetary sanctions, an appropriate sanction would be to vacate the summary judgment decision in favor of Chase because frustra legis auxillium quaerit qui in legem comittit – he who offends against the law vainly seeks the help of the law. A very full and detailed briefing regarding this issue was submitted to the Supreme Court and is incorporated into this motion. See Exhibit 2 - Objection to Costs and Fees and Motion for Sanctions and Exhibit 3 - Affidavit of Charles Nickerson in Support of Objection to Costs and Fees and Motion for Sanctions.

PHH

The most damaging and blatantly fraudulent statement made in violation of Rule 11 is PHH’s claim that they were and are the Note Holder. However, the hard evidence presented clearly demonstrates they were not and are not the Note Holder (R. 1112, 1139, 1140 – Affidavit of Charles Nickerson in Support of Motion for Summary Judgment – Exhibits 6 and 9; R. 1232 –  Notice of Supplemental Evidence – Exhibit A). Further, we have documented over 100 discrepancies, contradictions and falsehoods made by PHH and their counsel in our amended answer – Twenty-Second Affirmative Defense – Contradictory Statements. See Exhibit 1. PHH’s and their counsel’s blatant violation of the Rule 11 mandate demonstrates a complete disregard for the integrity of the judicial process and proves malicious intent in the filing and prosecution of these proceedings. Therefore, in addition to monetary sanctions, according to the law, PHH’s complaint must be dismissed.

CONCLUSION

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 judgment in there 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.

This wrongful foreclosure complaint is based solely on records and statements whose authenticity and veracity have been challenged and refuted. It is unjust and unlawful to proceed with execution of judgment without establishing that the facts and issues being relied upon for judgment are truthful and accurately presented in the record. To do otherwise, perpetually condemns the enforceability of this execution. Therefore, a stay continues to be appropriate and necessary until the true merits of this case have been litigated and fully resolved.

Wherefore, we request Chase and PHH be appropriately sanctioned and that we be allowed to pursue all of our claims against them.

Oral argument requested.