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Objection to Opinion Re: Request for Ruling and Filing
Filed August 13, 2019

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.




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