It Happened To Us. It Could Happen To You. The Nick and Donna Nickerson Family. www.ithappenedtous.com
It Happened To Us
      It Could Happen To You
It Happened To Us - The Nick and Donna Nickerson Family
 
It Happened To Us. It Could Happen To You. The Nick and Donna Nickerson Family. www.ithappenedtous.com
Home / Legal / Montana Documents / Brief in Support of Motion to Annul, Vacate, and Set Aside Sale
It Happened To Us
Montana Legal Documents

Brief in Support of Motion to Annul, Vacate, and Set Aside Sale
Filed March 3, 2020

Brief in Support of Motion to Annul, Vacate, and Set Aside Sale


COMES NOW, Nick and Donna Nickerson, as Defendants Pro Se per 28 U.S.C. § 1654, submit this brief in support of our Motion to Annul, Vacate, and Set Aside Sale.
Due to the unfairness, inadequacy, mistake, fraud and irregularities regarding the sale of our ranch as detailed in this brief in its entirety, we move the court to nullify, void and set aside the sale in the interest of justice and fair play. On February 12, 2020, our ranch was sold at a shockingly low, unfair and grossly inadequate price. Kenneth Lay, who filed a notice of appearance on behalf of Wells Fargo on February 4, 2020, credit bid an aggregate total of REDACTED for all 3 parcels, allegedly on behalf of HSBC. This violated the Court’s order stating
“Plaintiff may bid its judgment as opposed to cash.” Extraordinary circumstances caused by this same malicious assault on our family prevented Nick from attending the sale or timely seeking alternative ways of satisfying the unlawfully obtained judgment. Among other irregularities and violations of our contractual and Constitutional rights, we did not receive the statutory required notice (MCA § 71-1-224), the judgment referenced was rendered without authority, is void, contains an unlawful interest rate (MCA § 25-9-205), and we are being continually harmed by its accruing on our redemption price (MCA § 25-13-802). In the interest of justice, fairness, impartiality and the integrity of the judiciary, we have moved the Court to set aside this sale.

 

1. The Sheriff’s Sale violated statutory process and was not properly noticed.

Although we have repeatedly challenged the validity, authenticity, and illegal construction of the alleged mortgage document, it is prejudicial to enforce this document and ignore all statutory guidelines that could provide relief or redress. According to MCA § 71-1-224 our property was required to be advertised for at least 30 days and we were required to be personally served notice of the sale at least 30 days before the sale date. The Affidavit of Posting executed by Renae Smith, attached to HSBC’s Brief in Opposition to Defendants’ Request for Emergency Injunction to Postpone Sale states the Sheriff’s Sale was publicly noticed for 20 days. Additionally, we were noticed by mail, and not personally served. We received the mailed notice only 13 days before the original sale date.

 

MCA § 71-1-224.  Sale -- notice.
Real estate sold under a power of sale given and contained in a mortgage of real estate, except in a trust indenture as defined in the Small Tract Financing Act of Montana, shall be advertised for sale at least 30 days before the date fixed for such sale…as hereinbefore provided, notices of such sale must be served personally at least 30 days before the date fixed for such sale upon the occupant of the property so advertised for sale and upon the mortgagor… (emphasis added)

“The notice of sale of mortgaged realty under a power of sale in the mortgage on default of the mortgagor is jurisdictional; unless the requirements of this section were met, a sale made is void.” First Nat'l Corp. v. Perrine, 99 M 454, 43 P2d 1073 (1935).

 

Per law and the Montana Supreme Court, this law is jurisdictional and not procedural. The statutory 30-day notice of sale was not met even with the postponement of the sale and the broken notifications. Therefore, failing to meet the statutory required 30-day notice of sale renders the sale void. This flaw irreparably injured us by unfairly prejudicing our ability to effectively seek any advocacy to preserve and protect our property ownership, secure the needed funds, or properly advertise the sale. Foreclosure is a remedy designed to allow a creditor to recover their outlay, not a weaponized tool to allow a creditor to benefit by a debtor’s loss. Therefore, in the interest of fairness, justice, common decency, and as a matter of law, since the statutory notice was not personally served, and advertisement requirements were not met, we move this Court to set aside this sale as a fair and just remedy.

 

2. The Final Judgment interest rate and amount are in violation of Montana statute.
The Order on Motion For Final Judgment states “interest shall accrue against this sum at the rate of ten percent (10%) per annum (a per diem amount of REDACTED) until the Judgment is paid in full”. This is in direct violation of MCA § 25-9-205. 

MCA § 25-9-205.  Amount of interest.

            (2)  Interest on a judgment recovered in the courts of this state involving a contractual obligation that specifies an interest rate must be paid at the rate specified in the contractual obligation.

 

The alleged note specifically states the interest rate does not change even after an alleged default,

“Interest will be charged on unpaid principal until the full amount of Principal has been paid. I will pay interest at a yearly rate of 6.250%. The interest rate required by this Section 2 is the rate I will pay both before and after my default described in Section 6(B) of this Note.” (emphasis added)

 

A full and fair review of the truth irrefutably and unquestionably proves we made our payments and did not default or fail to perform. However, if this Court is going to wrongfully and prejudicially set a precedent that contractual pleas for relief necessitated by prevention of performance are synonymous with default, this Court should restrict itself to only penalize us based on the alleged contractual agreements. MCA § 25-9-205 specifically states that judgments involving contractual obligations must be paid at the rate specified in the contractual obligation. This unlawfully inflated interest rate is continuing to harm us because according to MCA § 25-13-802, the interest rate established in the judgment is accruing on our redemption price.


MCA § 25-13-802. Time for redemption -- amount to be paid.

The judgment debtor or redemptioner may redeem the property from the purchaser any time within 1 year after the sale on paying the purchaser:

(1)  the amount of the purchase with interest at a rate established by the judgment in the action that led to the execution sale, up to the time of redemption; (emphasis added)

 

It is prejudicial and tyrannical to authorize the theft of our ranch, give it to those acting as enemies of good faith and fair dealing, and then charge us exorbitant interest rates. This becomes glaringly true when our rights to due process, trial by jury, contractual redress, and full and fair opportunity to present meritorious claims have been procedurally, not meritoriously denied.

Therefore, due to the unlawful interest rate daily continuing to injure, harm and prejudice us and third parties, we move the Court to vacate this unlawful judgment, rescind the writ of execution, and set aside the invalid sale so appropriate relief and lawful resolution may be found.

 

3. The unlawful Final Judgment principal balance has no basis in fact or law.

The judgment references a principal balance of REDACTED, instead of the principal balance on the alleged note of REDACTED. This unverified, inaccurate and wrongfully inflated principal balance, coupled with the unlawful interest rate, caused the final judgment amount as of February 12, 2020, to be wrongfully increased by over REDACTED. This is even higher than the shockingly low price of REDACTED the bank’s agent began to credit bid for our entire 224-acre ranch at the January 29, 2020, sale. Such unlawful inflation and premeditated extortion violates any statutory or contractual rights to act and defies any jurisdictional powers of enforcement.
Therefore, due to the unsubstantiated principal balance, unlawful interest rate, and in the interest of justice, fairness, and respect for the law and integrity of the judicial system, we move the Court to vacate the unlawful final judgment and reverse, rescind, set aside and void the writ of execution, sale and any other action taken on this judgment.

 

4. HSBC violated the Court’s order by credit bidding less than the judgment amount.
In their complaint, HSBC requested, “…that the Foreclosure sale be for cash, except that HSBC Bank USA…be allowed to credit bid up to all sums owed to it under the foreclosure decree;” (emphasis added). Instead, the Court’s order specifically states “Plaintiff may bid its judgment as opposed to cash” (emphasis added). HSBC did not bid its judgment in direct violation of the Order on Motion for Entry of Final Judgment. As a matter of record, the credit bid was over a million and a half dollars less than the judgment at the original sale when any one of our 3 parcels could be sufficient to satisfy the original loan amount. MCA § 25-13-704 specifically states, “After sufficient property has been sold to satisfy the execution, no more property may be sold.” In violation of this statute, all 3 parcels of our property were purchased by the bank’s shockingly low and unlawful credit bids. Although we maintain this entire action is fraudulent, wrongful, illegal, and the judgment relied upon was void (see point #7), bidding the judgment amount in compliance with the order would have reduced injury for all parties by satisfying the judgment amount while preserving some of our established equity. In the interest of fairness, legitimate sale prices, and because HSBC violated the Court’s order by credit bidding a partial judgment amount, we move the Court to set aside the sale.

 

5. The Writ of Execution was invalid.
MCA § 25-13-301 specifically states the writ must state the “amount actually due on the judgment” and it “must be computed and stated as near as may be possible in dollars and cents.”
Unless the Plaintiff is claiming that the current judgment amount is the exact amount provided in this Court’s 2016 order, the writ does not contain the precise figures required by the law.

 

MCA § 25-13-301.  Form and contents of writ.
(1) The writ of execution must:

(c)  intelligibly refer to the judgment, stating the court and the county where it was entered and, if it is for money, the amount of money and the amount actually due on the judgment; and

(2)  In executions, the amount of the execution must be computed and stated as near as may be possible in dollars and cents, rejecting fractions of a cent.

 

When we requested the exact amount needed to satisfy the judgment, Deputy Clint Pullman told us to calculate it ourselves as the Bank failed to provide the actual amount needed. Further, Deputy Pullman told us we had to move the entire amount (a bid that should have started in the millions) into a Helena Bank. He stated he would not acknowledge or accept any payment option from us that did not originate from a Helena branch. He told us we had to present him with the cash at the sale or walk with him to a bank to give him the funds in full after the sale. Frankly, due to Montana’s comprehensive failure to protect our family or advocate against Wells Fargo in this entire matter, we were understandably leery and fearful of this demand. We sought counsel to validate its authenticity and origin but found none. Since Nick was unable to attend the sale, this demand prevented and hindered any resolution our family felt safe or secure proffering, especially in the time allotted.
Therefore, in the interest of justice, fairness, and because this writ was invalid and irregular on its face, we move the Court to rescind the Writ of Execution and vacate the sale.

 

6. Our property was sold at a price so grossly inadequate as to shock the conscience.
We objected to the opening bid as grotesquely inadequate, citing case law that should have postponed the sale to prevent the “sacrifice of the property.” We offered proof of the value of the property but were deliberately ignored. When Donna began to speak, Deputy Pullman talked over her objections and attempts to share the following case with him.

 

Granting that solicitors may properly advise the officer, still it must be borne in mind that the authority and discretion in making the sale are to a certain extent primarily vested in the officer designated in the decree. Unreasonable directions of the solicitor are not obligatory and should not be followed, as if the solicitor should direct the property to be struck off at great sacrifice when but a single bidder attended the sale. Under such circumstances, the officer might well refuse to do as he was directed, and he might be justified in postponing the sale to a future day to prevent the sacrifice of the property. Every such officer has a right to exercise a reasonable discretion to adjourn such a sale, and all that can be required of him is, that he should have proper qualifications, use due diligence in ascertaining the circumstances, and act in good faith, and with an honest intention to perform his duty. General rule is, that a sheriff is not bound to obey the directions of the attorney of the creditor to make an unreasonable sale of the property of the debtor, if he sees that the time selected, or other attending circumstances, will be likely to produce great sacrifice of the property; but he may in such a case, if he thinks proper, postpone the sale, especially if it appears that the creditor will not sustain any considerable injury by the delay…” Blossom v. Railroad Co., 70 U.S. 196, 18 L. Ed. 43 (1866)

Kenneth Lay, allegedly on behalf of HSBC, was the only bidder at the sale. He proffered what was irrefutably a grossly inadequate credit bid that was less than the judgment amount in violation of the judgment. Despite our properly presented objections, valid legal claims and authority, protests, and rights to ensure the sale was fairly conducted, Deputy Pullman proceeded with the sale. Deputy Clint Pullman repeatedly stated he was acting on behalf of, “the Sheriff’s Department.” Our research indicates no such department exists or can lawfully exist in Montana.

The security of Montana demands this prosecutable highway robbery be sanctioned, not ignored or endorsed. Montana Courts exist to ensure access to justice, not act as bank agents to exercise judicial tyranny. It is longstanding and firmly established a fair sale must be conducted, and that unfairness and inadequacy of purchase price are grounds for setting aside a sale.

 

Fair Sale
“In foreclosure and other judicial proceedings, this means a sale conducted with fairness and impartiality as respects the rights and interests of the parties affected. Lalor v. McCarthy, 24 Minn. 419. A sale at a price sufficient to warrant confirmation or approval when it is required.” Black’s Law Dictionary 4th Edition

Set Aside
“A judgment, decree, award, or any proceedings is to cancel, annul, or revoke them at the instance of a party unjustly or irregularly affected by them. Brandt v. Brandt, 40 Or. 477, 67 P. 508.” Black’s Law Dictionary 4th Edition

 

The lack of a sufficient bidding pool and scheduling a Sheriff’s Sale on a Roger’s Pass ranch in January/February caused a sale price so low that it should terrify any homeowners considering purchasing property in Montana, scare away any prudent investors from doing business in Montana, shock the conscience of any reasonable person, and anger all Montana citizens. Any creditor credit bidding a grotesque and ridiculously low amount to force the sale of multiple parcels, and unfairly, immorally, wrongfully, and fraudulently seize all parcels in a judicially endorsed fraud scheme, is unconscionable in nature and an affront to reasonable minds and the rule of law. Such outrageous, unjust, and irregular proceedings are barred and fatally fall outside any lawful authority. It is firmly established the consequences of foreclosing and taking someone’s home are too severe and injurious not to thoroughly ensure access to justice, relief, and redress. Thus, any creditor forcing a sale of multiple parcels must be required to demonstrate inability to satisfy the judgment by the value of one parcel. Holding a buyer pool deficient auction, credit bidding a grotesquely inadequate price, and then forcing the sale of additional parcels sets precedents that any creditor can require the sale of all parcels or lots, no matter how low or high the judgment obtained, and regardless of the worth and fair market value of the property. This would nullify regulatory protections and the intent of Montana statutes enacted by the Montana legislators, such as MCA § 25-13-704 and MCA § 71-1-222.

 

MCA § 25-13-704.  Conduct of sale.

(1) All sales of property under execution must be made at auction to the highest bidder, between the hours of 9 a.m. and 5 p.m. After sufficient property has been sold to satisfy the execution, no more property may be sold…
(2) …When the sale is of real property consisting of several known lots or parcels, the lots or parcels must be sold separately…The judgment debtor, if present at the sale, may also direct the order in which property, real or personal, must be sold when the property consists of several known lots or parcels or of articles that can be sold to advantage separately, and the sheriff shall follow the directions. (emphasis added)


MCA § 71-1-222.  Proceedings in foreclosure suits.
(1) There is only one action for the recovery of debt or the enforcement of any right secured by a mortgage upon real estate, and that action must be in accordance with the provisions of this part. In the action, the court may, by its judgment, direct:

(a)  a sale of the encumbered property or as much of the property as may be necessary; (emphasis added)

If the Plaintiff is required to bid based on the property value, in conjunction with the debtor directing the order of the sale as required by MCA § 25-13-704, debtors like us, with substantial equity, could maintain additional parcel(s), after satisfying the judgment. Ignoring property value in relation to the debt owed allows the creditor to receive an unjust windfall while severely prejudicing, injuring, and irreparably harming a debtor with substantial equity. Further, any value or trust in the Montana judiciary could be necessarily destroyed if this extreme of a grotesque sales price, exposed fraud, deceit, and irregular proceedings are permitted to stand and be endorsed by a Montana court. Clearly, the value of our Nickerson Family Ranch establishes the equity in the property being sold as too severe of a loss to the investment of the Nickerson Family’s or any Montana homeowner’s financial portfolio to allow this sale to stand.

 

“Where a grossly inadequate price is bid, such as shocks one's conscience, an equity court may set aside the sale, thus insuring within limited bounds a modicum of protection to a party who has absolutely no control over the amount bid and this, in effect, insures that the foreclosed property is not `given away.'” Nussbaumer v. SUPERIOR COURT IN & FOR CTY. OF YUMA, 489 P.2d 843, 107 Ariz. 504 (1971).

 

The effectual cost of securing the logs used to build our custom hand-peeled Swedish cope log home alone are significantly greater than the credit bid accepted for all three parcels. Per values readily available for public review, and cost research spanning 30+ years, a quality log home shell, which is generally considered only one third of the cost of finishing a log home, is conservatively valued at over $150 per square foot or $540,000. Thus, the logs of our home alone hold a market value at over $180,000 more than the grotesquely inadequate sales price accepted by the Office of the Lewis and Clark County Sheriff. These figures represent conservative estimates, long-standing industry price computations, and real cost to secure construction logs. Larger diameter logs, greater than 10-inch offer additional value. Our custom-built log home features hand-peeled, full-scribed logs that are mostly greater than 12” diameter and up to 17” diameter. All three floors have private entrances with over 1600 square feet of composite maintenance free deck, a sizeable 100+ square foot private sky roof balcony for the third floor, as well as over 400 square feet covered patio at the ground level. With over 4700 square feet under roof, a rock-anchored foundation, a 200 amp electrical service with 40/space oversize meter service, commercial grade septic system, gas and electric setups, 3 sources of heat, oversized central heat and air, natural light via primary glass gable ends, open floor plan, ceramic/hardwood/tile floors, hand forged decorative stair and deck rails, 1-piece aqua glass for tubs and showers, custom built knotty hickory cabinets (main floor kitchen, master bathroom, half bath), custom built oak and knotty pine cabinets (downstairs kitchen and bathroom), jetted tub with separate shower in one of main floor baths, antique claw tub and separate shower in third floor bath, high-end efficiency construction, significant upgrades, the value of this incredible family or corporate lodge, per the most conservative analysis, far exceeds the original loan amount.

Our ranch is centrally located alongside the Continental Divide one hour from Helena; one hour from Great Falls; and around one-and-a-half hours from Missoula. It is close to national forest, state land, BLM, and is adjacent to lands protected under conservation easement. Our property has a variety of terrain, mostly buildable acreage, with marketable timber. Agents and investors have confirmed the views, topography, amenities, and highly desirable location of this high mountain ranch establish it as a high value property. Parcel I and II were subdivided for residential development before our family rescued this unique Montana acreage for a multi-generational family ranch. This ranch has a mile of road frontage, multiple entrances, prime real estate tracts, and unlimited development potential. Market property values have escalated three-fold in recent years with sales and listings affirming this is a prime real estate location. These unique parcels are one-of-a-kind and required appropriate and proper advertisement to secure a fair bidding audience to obtain true market value and worth. One of our three parcels with a proper and fair purchase price more than satisfies the fraudulently obtained judgment. To require the sale of our entire 224-acre, 3 parcel ranch with a custom built Swedish cope log home, outbuildings, developed agricultural operations, a mile of highway road frontage, and all the features listed above and below establish collusion, racketeering, and intent to injure us and unlawfully seize our family ranch and wealth.

PARCEL II, Lot A is an around 35-acre timbered parcel in a parklike setting with a creek, spring, timber, and over a ¼ mile of MT Highway 200 road frontage. This parcel was unlawfully sold for REDACTED, when a local Helena investor recognized the value of this 35-acre parcel alone as adequate to satisfy the entire judgment amount.
PARCEL I is a 167 acres parcel with live water, marketable timber, rolling and mostly buildable terrain, spectacular rock outcroppings, over a ½ mile (approximately 3,130 feet) of MT Highway 200 road frontage. This parcel was unlawfully sold for REDACTED when fair market well exceeded the loan or judgment amount. Requiring our family to surrender it to satisfy the fraudulently obtained judgment is irrefutably an unfair remedy, and should prick the conscience of even a prejudiced, biased, or tyrannical judiciary.
PARCEL II, Lot B was unlawfully sold for REDACTED. This parcel includes 21 acres, sizeable log home, outbuildings, organic gardens, pasture paddocks, landscaped yard, and established income potential. This sale price is evidence of racketeering.

Furthermore, our substantial cash down payment and the original loan amount of REDACTED validate the land value is significantly greater than the credit bid amount. We approached Wells Fargo Private Bank in Helena, Montana, as model borrowers with solid, strong, and historically perfect credit. We did not and would not risk the security of our financial portfolio by knowingly committing to a nearly million-dollar loan without Wells Fargo certifying the value of the land well exceeded the loan. Wells Fargo loaned REDACTED on the 224-acre property, based on the land value alone. The home was unfinished at the time of the loan and no other improvement or buildings existed or were factored into determining a loan-to-value ratio. Wells Fargo certified the land alone supported the value of the loan. All costs associated with finishing the home and property improvements were ours to bear and represent significant investments in Montana real estate that are now being stolen.

Not only was the sale price grotesquely inadequate, but the lack of statutory notice, untimely scheduling of the sale, and Nick being restrained from being present at the sale due to extraordinary circumstances, prevented us from securing funds to satisfy the fraudulently obtained judgment, advertising the property for sale to expand the buyer pool, or securing legal assistance stopping the unlawful theft of our home. We requested relief to address these issues prior to the sale but were denied opportunity by this Court’s refusal to answer our emergency motions. This Sheriff’s Sale was clearly grossly inadequate, and the bids by the bank represent a fraudulent attempt to devalue the property and defraud the wealth of our family portfolio. It is firmly established Courts have held and agreed that sales for much less than fair market value should be invalidated. Clearly, this sales price of our ranch is far less than even a fire sale and defies fair market value. Further, this sale price statutorily fails to comply with codified requirements for bankruptcy, eminent domain or other forced dispossession efforts. It is an affront on the integrity of Montana land value and corroborates our meritorious claims this attack on the wealth of our financial portfolio is persecutorial and tyrannical in nature, fact and reality.

 

MCA § 70-30-313.  Current fair market value.
Current fair market value is the price that would be agreed to by a willing and informed seller and buyer, taking into consideration, but not limited to, the following factors:

(1)  the highest and best reasonably available use and its value for such use, provided current use may not be presumed to be the highest and best use;

(2)  the machinery, equipment, and fixtures forming part of the real estate taken; and

(3)  any other relevant factors as to which evidence is offered.

Fair Market Value
“Price at which a willing seller and a willing buyer will trade. … Assumes agreement between owner willing but not obliged to sell for cash and buyer desirous but not compelled to purchase. … It means neither panic value, auction value, speculative value, nor a value fixed by depressed or inflated prices. … It resides in estimate and determination of what is fair, economic, just and equitable value under normal conditions. … Price such as a capable and diligent business man could presently obtain from the property after conferring with those accustomed to buy such property. … Price which property would bring at a fair sale between parties dealing on equal terms.” (citations omitted)
Black’s Law Dictionary 4th Edition

“It is clearly established that Schmidt may testify himself to the value of the property:
‘One who knows the real property in question and is familiar with the uses to which it may be put, may testify as to its market value. The witness need not know of any sales and he need not be a technical expert. (Citing cases.)’” Dept. of Highways v. Schumacher, 180 M 329, 590 P2d 1110 (1979).

“The ‘actual value’ is the market value, ‘the price that would in all probability result from fair negotiation, where the seller is willing to sell and the buyer desires to buy.’”…To arrive at the market value, many factors…may be taken into consideration. Evidence may be introduced as to the various uses to which the property is adapted, even though it has never been put to such use in fact. In this connection the location of the land, the character of the neighborhood, and all things surrounding the property may be shown as all are matters which a purchaser would consider in attempting to ascertain the market value. Here, it must be borne in mind the ultimate inquiry is the market value. To arrive at the market value, however, it is always proper to introduce evidence as to the uses to which the land may be put, as well as the uses to which it has been put, for a witness to detail its adaptability for a particular use, and then to state its market value. The use is not the market value. However, the use should be considered in arriving at the ultimate inquiry, the market value itself.” St. v. Peterson, 134 M 52, 328 P2d 617 (1958).
Determination of "Fair Market" Value in Mortgage Foreclosure:  
“…‘Fair market’ is the intrinsic value of the real property with its improvements at the time of sale under judicial foreclosure, without consideration of the impact of foreclosure proceedings on the fair market value.” Trustees of the Wash.-Idaho-Mont. Carpenters-Employers Retirement Trust Fund v. Galleria Partnership, 239 M 250, 780 P2d 608, 46 St. Rep. 1661 (1989). (Case Note under MCA § 71-1
-222, Montana Code Annotated)

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

“A court may order an execution sale set aside on the basis of two grounds: First, the purchase price received at the sheriff's sale may be so inadequate as to shock the conscience of the court and justify setting aside the sale, (Citing authority). Second, where there is an inadequacy of price which in itself might not be grounds for setting aside the sale, slight additional circumstances or matters of equity may so justify... .” Peterson v. Montana Bank of Bozeman, NA, 687 P.2d 673, 212 Mont. 37 (1984)

“…both in England and this country a sale will not be set aside for mere inadequacy of price, unless that inadequacy be so gross as to shock the conscience, or unless there be additional circumstances against its fairness. But if there be great inadequacy, slight circumstances of unfairness in the conduct of the party benefited by the sale will be sufficient to justify setting it aside. Graffam v. Burgess, 117 U.S. 180, 191, 192.” Ballentyne v. Smith, 205 U.S. 285, 27 S. Ct. 527, 51 L. Ed. 803 (1907)

 

Therefore, in the interest of justice, because the unfair and grossly inadequate sale price shocks the conscience of any reasonable mind, one parcel would satisfy the fraudulent judgment amount while preserving our substantial equity, and selling more would unfairly prejudice and unlawfully seize our home, livelihood, equity, significant financial and time investments, and personal wealth, we move the Court to annul, vacate, and set aside this sale. Creditors are only entitled to sell as much of a debtor’s property as is sufficient to satisfy the judgment, and no more. Allowing this creditor to procedurally deny our contractual right to assert the non-existence of a default and then seize all our property and substantial equity by credit bidding a grossly inadequate sale price on individual parcels is judicially authorized theft, not satisfaction of judgment. Even if the bank had not breached the contract; prevented our performance; practiced fraud and deceit; concealed their true involvement; defied and violated state, federal, and common laws; they would still only be entitled to require the sale of such property sufficient to satisfy a lawfully calculated judgment, no more (MCA § 25-13-704).

 

7. The order the Writ of Execution references is void.
The Order on Motion For Entry of Final Judgment that the Writ of Execution references is void. Our notice of appeal was filed on May 26, 2015. The Order on Motion For Entry of Final Judgment was filed on February 19, 2016. The Supreme Court did not file their final opinion until August 22, 2017. The Supreme Court gave the following discussion on April 25, 2017 when they rescinded a writ of execution and canceled the sale scheduled for May 3, 2017.

 

““Since 1954 it has been an established rule in Montana that when a notice of appeal has been filed, jurisdiction over the parties to the controversy and subject matter passes from the District Court and vests in the Supreme Court. It becomes the Supreme Court’s duty to maintain the status quo of the parties until the controversy can be determined.” Julian v. Buckley, 191 Mont. 487, 490-91, 625 P.2d 526, 528 (1981) (citing Benolken v. Miracle, 128 Mont. 262, 273 P.2d 677 (1954)). See also ABC Collectors, Inc. v. Birnel, 2006 MT 148, ¶9, 332 Mont. 410, 138 P.3d 802. The Nickersons’ appeal remains pending before this Court. Once the notice of appeal was filed, “the District Court was without authority and jurisdiction to make or enter any further order except in matters embraced in the action and not affected by the order appealed from.” Julian, 191 Mont. at 491, 625 P.2d at 528.” Order of Supreme Court, Filed April 25, 2017.

 

Because the Order on Motion For Final Judgment was filed after the notice of appeal was filed, when “the District Court was without authority and jurisdiction to make or enter any further order except in matters…not affected by the order appealed from,” this order is void and the sale must be vacated. Allowing this order to stand challenges the integrity of this judiciary and violates long standing and established rules in Montana. It is extremely prejudicial, unfair, injurious, and unethical to show leniency to the Plaintiff by ignoring laws and codes, while blocking access to justice and an effective defense by the Defendant. Therefore, because the sale was based on a void judgment and in the interest of impartiality, equality and integrity, we move the Court to vacate this sale and order.

 

8. Opposing counsels have practiced deceit and fraud regarding the real party in interest.

MCA § 27-1-712.  Liability for damages for deceit.

(1) One who willfully deceives another with intent to induce that person to alter the person's position to the person's injury or risk is liable for any damage that the person suffers.

(2)  A deceit, within the meaning of subsection (1), is either:
(a)  the suggestion as a fact of that which is not true by one who does not believe it to be true;
(b)  the assertion as a fact of that which is not true by one who has no reasonable ground for believing it to be true;
(c)  the suppression of a fact by one who is bound to disclose it or who gives information of other facts that are likely to mislead for want of communication of that fact; or


“Under this section acquisition of another's property by deceit is illegal, and all acts done in furtherance of a purpose to so acquire it become tainted with the illegality...”
Biering v. Ringling, 74 M 176, 240 P 829 (1925).

dolus et fraus nemini patrocinentur, (patrocinari debent.) - Deceit and fraud shall excuse or benefit no man.

 

Kenneth Lay stated in his notice of appearance dated February 4, 2020, that he was appearing on behalf of Wells Fargo. Hillary McCormack, in her letter of instruction to the Lewis and Clark County Sheriff, states the letter is “Re: Wells Fargo v. Nickerson.” (See Affidavit of Nick Nickerson in Support of Motions, Exhibits B and C.)

 

M.R.Civ.P. 17(a)(1) An action must be prosecuted in the name of the real party in interest.

 

nemo alieno nomine lege agere potest. No one can sue in the name of another. allegans contraria non est audiendus - One making contradictory statements is not to be heard. pendente lite nihil innovetur - During litigation nothing should be changed.


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

The Plaintiff has restricted our access to justice and procedurally prevented our contractual right to assert non-existence of a debt by claiming Wells Fargo was not a party. Prior to and at the sale, we objected to the sale based on fraud, deceit, and right to act. Among other issues, we objected to Kenneth Lay bidding on behalf of HSBC and questioned whether he was an authorized agent. The Plaintiff was only authorized by the Court to bid its judgment amount and the only party authorized to procure a credit bid. Kenneth Lay, credit bid only REDACTED, less than one fourth of the judgment amount.
Opposing counsels have repeatedly claimed HSBC is the Plaintiff, though no admissible or verified evidence in the record supports their allegations and HSBC has repeatedly denied their involvement. No Notice of New Creditor (required per
15 U.S.C. § 1641(g)) was sent after either of the illegal, fraudulent, forged and void assignments “HSBC” has used to fabricate standing. Nothing produced by HSBC has been signed or verified by any bank employee. Opposing counsel has refused to provide proof from HSBC that they are acting on their behalf. We have repeatedly moved this Court to address this issue under MCA § 37-61-40 (See Affidavit of Nick Nickerson in Support of Motions, Exhibit E.) If this issue had been appropriately and properly litigated during the Summary Judgment process, additional exposure of the collusion, racketeering, fraudulent and deceitful actions would have surfaced, prohibited summary judgment, and resulted in the end of this unlawful and unwarranted attack on our family.

 

MCA § 37-61-40. Production of proof of authority to court.

The court or judge, on motion of either party, may require the attorney of the adverse party to produce and prove the authority under which the attorney appears and may stay all proceedings until the authority is shown and may at any time summarily relieve a party from the consequences of the acts of an unauthorized attorney.

“The court may, on motion of either party made in good faith and upon a showing supported by affidavit or otherwise, require the attorney of the adverse party to produce and prove the authority under which he appears and, if it be shown that the attorney has no such authority, dismiss the action. In re Astibia's Estate, 100 M 224, 46 P2d 712 (1935)” Missoula Belt Line Ry. Co. v. Smith, 58 Mont. 432, 193 P 529 (1920)

Wells Fargo and HSBC have both denied involvement in this action to avoid, prevent, and obstruct oversight and intervention by governing agencies. Wells Fargo, HSBC, or any national bank conducting business in Montana outside the oversight of any governing authority places all Montana homeowners at risk and effectually denies all protections under the law. Our family can testify to the inerrant risks, danger, and vulnerability this creates. Opposing counsels’ have independently and collusively practiced deceit and fraud to conceal this willful breach of any alleged contract and racketeered scheme to prevent us from preserving our property ownership. These actions severely prejudiced our ability to defend ourselves, properly present Wells Fargo’s prevention of our performance, address illegalities surrounding the unconscionable alleged contracts, and have blocked our access to justice, due process, relief, and prevailing on remand. Opposing counsels are liable under MCA § 37-61-406.


MCA § 37-61-406. Penalty for deceit.

An attorney who is guilty of any deceit or collusion or consents to any deceit or collusion with intent to deceive the court or a party forfeits to the party injured by the deceit or collusion treble damages. The attorney is also guilty of a misdemeanor.

We have the Constitutional right to face our accuser. This is a fundamental human right. One cannot face or properly and effectively defend against an unknown entity. Thus, the Constitution guarantees, and legislatures have enacted safeguards to prevent this atrocity. We have been systematically and procedurally denied opportunity to face Wells Fargo and HSBC because of fraud and deceit. Therefore, in the interest of maintaining the integrity and trust of the Montana judiciary and preventing great injustice to us, due to the fraud and deceit of opposing counsel and the question of who actually bid at the sale, this sale must be set aside to discover the true identity of the Plaintiff and allow their alleged rights to be established or disputed.

9. Our Warranty Deed is superior in right, prior in time, and paramount in title.
The Order on Motion For Final Judgment is in error when it states HSBC’s lien is superior to any right or title held by us.  The county records demonstrate our title, granted by our Warranty Deed, is prior in time, superior in right and paramount title to any other title, lien, or claims allegedly held by HSBC, Wells Fargo, or any other entity. We dispute any debt is owed to HSBC, and affirm HSBC does not and has never held lawful title to our property. Our Warranty Deed, which states our property was free from all encumbrances, was executed March 30, 2007, and is filed as instrument #3125920. The illegal, fraudulent, adhesive, and unconscionable Mortgage HSBC has claimed the right to foreclose on is recorded as instrument #3125921. Contrary to their claims we did not consent or agree to be an accomplice to their crimes and illegal business practices and transfers. We held and hold our land as fee simple absolute in possession and did not transfer title to any entity in March, 2007, or anytime thereafter. Any lien granted to Wells Fargo was subordinate to our clear title, which remains in our possession. Additionally, long standing law, even internationally in principle, clearly establishes since our equity is over 51% of our property value, we possess controlling right and no power on earth has the authority to foreclose and take our property when we did not default. Montana should have required the bank to accept our payments or this Court should have recognized prevention of performance voided their rights to enforce. Our right and title to our property is superior in right and prior in time to HSBC’s claim. We hold paramount and priority title to the property, and HSBC’s claims are junior and subordinate to our Warranty Deed. All claims or judgments to the contrary are in error and void as a matter of law and fact.

 

qui prior est tempore potiorest jure - He who is prior in time is superior in right. He who is first in time has the strongest claim in law.

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

Priority - “2. He who has the precedency in time has the advantage in right, is the maxim of the law; not that time, considered barely in itself, can make any such difference, but because the whole power over a thing being secured to one person, this bars all others from obtaining a title to it afterwards.” 1 Fonb. Eq. 320 A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.

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

 

Therefore, in the interest of justice, truth and right, because we hold the controlling right in our property, and HSBC does not hold any lien superior to our right and title, we have moved the Court to vacate the sale.

 

10. HSBC breached the alleged contract and nullified their rights to enforce.

 

“Once a contract has been breached, its terms may not be unilaterally resumed. The breaching party cannot claim entitlement to the contract benefits, and the nonbreaching party has no duty to perform under the contract terms.” W. Media, Inc. v. Merrick, 232 M 480, 757 P2d 1308, 45 St. Rep. 1212 (1988)

nullus commodum capere potest ex sua injuria propria - No one can derive an advantage from his own wrong.

 

A. HSBC breached the alleged contract by violating state and federal laws.
The alleged mortgage requires compliance with state and federal laws. Failure to follow these laws constitutes a breach of contract and thereby nullifies the rights of the lender to enforce the alleged contract.

 

“This Security Instrument shall be governed by federal law and the law of the jurisdiction in which the Property is located. All rights and obligations contained in this security instrument are subject to any requirements and limitations of Applicable Law.” Section 16 of Alleged Mortgage

HSBC and Wells Fargo have, at a minimum, violated and ignored over 45 laws, codes and rules as we have presented to this Court throughout our filings. Numerous additional and direct claims would have demanded a different outcome had Wells Fargo’s involvement not been concealed. These violations breach the alleged contract, demonstrate the illegality and fraudulent construction of the alleged contract, nullify the Plaintiff’s or the courts right to enforce the alleged contract, and thereby, invalidate the sale and the enforceability of the sale.

 

B. HSBC breached the alleged contract, by and through their alleged servicer, Wells Fargo, by preventing our performance.
It is well established in common, codified and case law one cannot prevent performance to complain of nonperformance. Money refused releases the debtor. We have demonstrated, supported, and confirmed Wells Fargo’s prevention of performance in our pleadings and affidavit testimony submitted in accordance with MCA § 1-6-105 and MCA § 28-1-1304. HSBC cannot and has not provided any admissible evidence to the contrary despite any leniency or prejudicial discretion granted by Court renderings. Montana Code, case law, and legal maxims confirm a party cannot prevent performance to claim nonperformance.


MCA § 28-1-1301. When delay or failure to perform or offer to perform excused.

(1) when such performance or offer is prevented or delayed by the act of the creditor

MCA § 28-1-1302. Effect when performance prevented by creditor.

If the performance of an obligation is prevented by the creditor, the debtor is entitled to all the benefits that the debtor would have obtained if the obligation had been performed by both parties.

“…it is well-settled that ‘one cannot prevent performance of a contract and then avail oneself of its nonperformance’.” (citations omitted). Smith v. Farmers Union Mut. Ins. Co., 2011 MT 216, 260 P.3d 163 (2011)

“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

Therefore, because HSBC, by and through their alleged servicer, breached the contract by preventing our performance, they cannot then avail themselves of nonperformance, steal all our investment, hard work, improvements, livelihood, dreams, retirement, equity, and future as Montanans to reap an unjust, unlawful, and unwarranted extortion of what belongs to us. HSBC has demonstrated this attack is not just an attempt to now collect a debt, but a targeted assault through unlawful practices to steal all three parcels of our family ranch. A fair administration of the law moves this Court to set aside this sale.

 

C. HSBC breached the alleged contract by failing to fulfill the conditions precedent.

HSBC did not fulfill the conditions precedent of the alleged contract when they failed to send us notice of default.

 

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


Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument…The notice shall further inform the Borrower of the right to reinstate after acceleration and 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.”

Section 22 of Alleged Mortgage (emphasis added)

 

The alleged contract specifically recognizes the Servicer and Lender as separate and distinct entities with separate and distinct responsibilities under the alleged contract. Therefore, any supposed notice of default allegedly sent by Wells Fargo does not fulfill the requirements the alleged mortgage places on HSBC if they are alleging to be the Lender. We have never stated, implied or otherwise communicated that HSBC is or can be the true owner of our note and mortgage. HSBC does not own our note and mortgage, has committed illegal acts in their willful attempt to fraudulently fabricate standing, and has no ethical, moral, lawful, or legal right to sell our homeland. However, since this Court has fallen prey to fraud, lies, and deceit, and allowed this action to proceed as if HSBC owns our note and mortgage, at a minimum, the Court must recognize HSBC’s failure to fulfill their alleged contractual duties and the subsequent forfeiture of any alleged rights to enforce. Furthermore, the alleged, inaccurate default letter has never been validated by Wells Fargo or us, making this letter inadmissible and unable to be acted upon. This letter, disregarding M.R.E. 803(6), 901, 902, and 1002, was introduced as an exhibit attached to HSBC’s Brief in Response to Defendants’ Motion For Summary Judgment and Brief in Support of Plaintiff’s Cross-Motion For Summary Judgment and was never verified or sworn to by anyone. Finally, the verbiage of this alleged default letter presents Wells Fargo Bank, N.A. is the lender, not HSBC. This precludes HSBC’s claim to standing; testifies on our behalf; demonstrates the alleged assignments are illegal, fraudulent, forged, felonious, and void; requires reversal of summary judgment; and requires HSBC’s complaint be dismissed in its entirety and any and all actions taken as a result of their claims be immediately vacated and reversed based on irreparable and fatal flaws.

Therefore, because HSBC has breached the alleged contract by unlawful practices, violated and ignored state and federal laws, prevented our performance, by and through their alleged servicer Wells Fargo, and failed to perform the conditions precedent, they have nullified their rights to enforce the alleged contract and, in the interest of fairness and justice, this sale must be set aside.

Conclusion

Waiting almost 4 years after judgment to schedule a sale, failing to personally and properly notice us according to the law, and then trying to claim injury or prejudice to deny us properly and rightly requested injunctive relief necessary to protect our interests in our family ranch, demonstrates willful and hateful intent to harm, injure, and damage our family. In April, 2017, the Supreme Court rightly canceled a sale wrongfully scheduled while the District Court’s summary judgment was expressly held in abeyance. Since that time, HSBC has failed to secure a new judgment or schedule another sale, which has denied us procedural opportunity to address meritorious issues that could eliminate the loss of our home. Allowing HSBC to now claim urgency sufficient to deny equal consideration to both parties is grossly unjust and only serves to empower their ongoing harassment and persecution of our family.

This brief details extraordinary fraud, deceit and unlawful acts toward us and the Court, and is supported by fact and law. The unfairness and inadequacies of the sale (irregular proceedings, accepting a grossly inadequate and shockingly low sale price, referencing and acting on a void judgment, failing to meet statutory notice requirements, credit bidding below a judgment amount in violation of the secured judgment, seizing all three parcels by extortion and circumstance, violating statutory required notice, inflating the interest amount, among other such acts) and the collusively malicious circumvention of oversight and regulatory protections, firmly establish our valid legal claims and rights to relief and redress.

 

MCA § 28-2-701. What is unlawful.

That is not lawful which is:

(1)  contrary to an express provision of law;

(2)  contrary to the policy of express law, though not expressly prohibited; or

(3)  otherwise contrary to good morals.

MCA § 30-14-103. Unlawful practices.

Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful.

“…an unfair act or practice is one which offends established public policy and which is either immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.” Rohrer v. Knudson, 349 Mont. 197, 203 P.3d 759, 2009 M.T. 35 (2009)

“[W]hen a judgment is shown to have been procured by fraud upon the court, no worthwhile interest is served in protecting the judgment.” Id. at 653, 218 P.3d at 858 (internal quotation marks omitted). Estate of Adams ex rel. Adams v. Fallini, 132 Nev. 814, 386 P.3d 621, 132 Nev. Adv. Op. 81 (2016)

 

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

 

“(N.Y.) Execution will be stayed by order of court to prevent fraud or great injustice, either perpetually or for a definite time” Lansing v. Orcott, 16 Johns. 4.

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

“…every court has power ‘To amend and control its process and orders, so as to make them conformable to law and justice’.” JI Case Company v. McDonald, 76 Idaho 223, 280 P.2d 1070 (1955)

“I assume that there is no authority that we are required to follow in support of the proposition that a party who has perpetrated a fraud upon his neighbor may, nevertheless, contract with him in the very instrument by means of which it was perpetrated, for immunity against its consequences, close his mouth from complaining of it and bind him never to seek redress. Public policy and morality are both ignored if such an agreement can be given effect in a court of justice. The maxim that fraud vitiates every transaction would no longer be the rule but the exception.”  Bails v. Gar, 171 Mont. 342, 558 P.2d 458 (1976)

“Under that doctrine [clean hands] a party who seeks equity must enter the court with ‘clean hands.’ More specifically, a litigant may be denied equitable relief by a court on the ground that his conduct ‘has been inequitable, unfair and dishonest, or fraudulent and deceitful as to the controversy at issue.’ Gilbert v. Nampa School District No. 131, 104 Idaho 137, 145, 657 P.2d 1, 9 (1983);” Curtis v. Becker, 130 Idaho 378, 941 P.2d 350, (Ct. App. 1997)

 

These acts severely prejudice us, injure our wealth, expose criminal actions and inactions, and violate law, common decency, and fair debt collection. The accruing interest rate in effect during our redemption period is unlawful and continuing to injure and harm us.

Wherefore, we move this Court to immediately vacate, set aside, void, and annul the unlawful sale of our property; set aside the summary judgment order; recognize the final judgment was untimely, without authority and void; grant us leave to rightly amend our answer, counterclaim and third party complaint and present our defenses and valid legal claims; and establish a fair pathway to justice in this matter.

Oral argument requested.          

 




View this document page by page
View this document as a PDF
View other legal documents

Back to IHTU HOME PAGE