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Brief In Support of Motion To Set Aside Judgment and Summary Judgment Order
Filed February 12, 2020

Brief In Support of Motion To Set Aside Judgment and Summary Judgment Order


COMES NOW, Defendants, Nick and Donna Nickerson, submit this brief in support of our Motion to Set Aside Judgment and Summary Judgment Order. Opposing counsels, Wells Fargo, and HSBC have repeatedly denied Wells Fargo’s and HSBC’s true involvement in this action to deceive the Court and manipulate the law of the case, unlawfully thwart our effective defense of this lawsuit, and deny our ability to obtain relief from this Court and other governing oversight agencies. These acts demonstrate intent to defraud, breach any alleged contract or rights to action, preclude any judgments in favor of the Plaintiff, are criminal in nature, and establish new and compelling evidence that the outcome of this case has been willfully and intentionally controlled by deceit and fraud. Without question, the Plaintiff’s relentless concealment of the truth has sabotaged this case, resulted in a wrongful foreclosure being granted, and nearly dispossessed an innocent family of their homeland, good name, and life savings. Significant, severe, and substantial harm, damage, and loss has been needlessly suffered due to the malicious concealment of truths by this material misrepresentation of fact. Both Erika Peterman and Kenneth Lay have clearly stated Wells Fargo was not a party to this suit. (See Exhibit A)

“MS. PETERMAN: Well, Wells Fargo isn't a party to this case, so it doesn't create a factual dispute, I don't think, for HSBC.” Transcript, 14:2-4

“MS. PETERMAN: Wells Fargo assigned it to the Plaintiff in this case. The Plaintiff, in this, in all of the interest and all of the rights associated with that note, all of that transferred to HSBC --the Plaintiff in this case.”
Transcript, 58:6-11

“However, Wells Fargo is a non-party to this action…HSBC is the Real Party in Interest With the Right to Foreclose. HSBC is the owner and foreclosing party…The undisputed facts establish that HSBC is…the real party in interest.” Answer Brief of Appellee HSBC Bank

These false misrepresentations precipitated premature summary judgment proceedings and adversely impacted our ability to present our claims and defenses. Further, truth, facts and evidence were denied rightful opportunity to testify when the Montana Supreme Court remanded our file to this District Court so we could present our evidence of prevention of performance. Hiding behind collusive deceit and fraud, Wells Fargo blocked all access to our records, notations, witness testimony, and other proof of prevention of performance, and thus, circumvented any available oversight assistance. As this Court was previously informed, HSBC has denied all involvement in this litigation from its onset. This has prevented any oversight assistance from Montana governing agencies. Truly, grave miscarriages of justice have occurred in this courtroom due to the deceit and fraud perpetrated by opposing counsels, Wells Fargo, and HSBC.

Now, Kenneth Lay and Hillary McCormack have clearly stated Wells Fargo is a party to this suit. (See Exhibit B and C.) Opposing counsel is attempting an illegal ‘bait and switch’ technique of obtaining a judgment in HSBC’s name and attempting to execute judgment in Wells Fargo’s names. Opposing counsel has lied, misrepresented and fraudulently concealed the true identity of the Plaintiff for seven years despite our repeated attempts to ascertain the truth. In either case, execution must be stayed to prevent further grave miscarriages of justice.

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

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.”

MCA § 37-61-402. 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.”

Due to this new and compelling evidence we demand the attorneys of record be immediately required to produce proof of authority and appropriate disciplinary actions be taken. Our family has been severely and substantially injured and prejudiced in this prolonged wrongful foreclosure action and we stand to lose substantial investments and equity. HSBC and Wells Fargo have never been injured or prejudiced by anything we have done. We fulfilled our obligations and we did not default. All truth, facts, affidavit testimony, and admissible evidence entered in the record and maliciously quashed by Wells Fargo and HSBC’s criminal concealment of meritorious facts corroborate this. Among other injuries, the concealment of Wells Fargo’s involvement has prejudiced us in the following ways:

Opposing counsels denied Wells Fargo’s involvement to secure summary judgment and thwart our defense of prevention of performance.

THE COURT: And there appears to be a history of them attempting to make payments
after that initial default, but they continued to engage the servicer of the loan, Wells
Fargo, in an attempt to pay. Does that create a factual dispute?
MS. PETERMAN: Well, Wells Fargo isn't a party to this case, so it doesn't create a
factual dispute, I don't think, for HSBC…So it could create a factual dispute with Wells
Fargo, but not with HSBC.
Transcript, 13:21-14:8

 

Wells Fargo and HSBC both denied involvement in this foreclosure to thwart discovery and avert the authority and jurisdiction of governing agencies.

“In response to us and to inquiries initiated on our behalf by Chris Romano (Montana Banking Commissioners office), HSBC denied any involvement in this foreclosure and instructed us to address our concerns to Wells Fargo for resolution. By doing so HSBC closed the door to obtaining any discovery from them. In accordance with HSBC’s response, we contacted Wells Fargo, however, they also denied any involvement with this foreclosure. We then contacted the Montana Attorney General’s office who instructed us to file a complaint with their consumer protection division and they also told us that since Wells Fargo denied involvement with this foreclosure they did not think there was anything they could do. Our complaint was eventually assigned to Mike Palzes who worked on our behalf to obtain our records from Wells Fargo and attempted to negotiate a resolution. However, Wells Fargo would not release our records and informed us a resolution was not possible because our loan was put into the trust.
We have utilized every resource available to us to require this information be provided including but not limited to soliciting the assistance of the Attorney General’s office, Banking Commissioner’s office, Consumer Protection, Secretary of State, State Auditor’s office, and others. Because this Court has not required Erika Peterman to provide proof of authority, and HSBC and Wells Fargo have refused involvement in this foreclosure, we nor these entities have been able to establish authority or jurisdiction to force Wells Fargo to work with us.” Reply Brief in Support of Motion for Extension of Time to Complete Discovery

Wells Fargo denied and concealed their involvement during the years the National Settlement Agreement was in effect to hide their criminal activity.

Wells Fargo breached their Settlement Agreement by refusing our payments, failing to provide a SPOC, robo-signing documents, and engaging in other sloppy and fraudulent business practices. In addition, nothing submitted by the Plaintiff  in this case has been sworn to or verified by the bank.  HSBC did not even sign the alleged complaint in violation of the national mortgage servicing standards and guidelines that are a part of the settlement agreement between Wells Fargo and the Montana Attorney General, M.R.Civ.P. 56 (the summary judgment rule) and M.R.E. 803(6). Wells Fargo then carefully concealed their involvement with this lawsuit during 2012 through 2015 when the settlement agreement was in full effect and they could have been cited for non-compliance.

“On February 9, 2012, the Montana Attorney General’s Office joined a landmark agreement with the nation’s five largest mortgage servicers that provides help for struggling homeowners and requires national standards to protect consumers from the abuses of these five large banks. The settlement stems from a national investigation of the five biggest banks and the discovery that these institutions routinely violated state and federal laws by signing foreclosure documents outside the presence of a notary public – a practice commonly called “robo-signing” – and without knowing if the facts contained in the documents were even correct.” Keep My Montana Home – Montana Department of Justice- https://dojmt.gov/consumer/foreclosure/

Ends Robo-signing: Requires accuracy, personal knowledge by signatories, no reliance on inaccurate affidavits, pleadings, notices of default, sale, etc.,..(emphasis added) Center for Responsible Lending – Summary of National Mortgage Settlement 3-12-12.pdf § I. Servicing Reforms

Single Point of Contact (SPOC): Bank/servicer to establish a SPOC for communicating with the borrower. The SPOC will be expected to explain available options to borrowers, coordinate documents, inform borrower of status, ensure borrower is considered for all options and have access to those with ability to stop foreclosure proceedings). Center for Responsible Lending – Summary of National Mortgage Settlement 3-12-12.pdf § I. Servicing Reforms.

Additionally, the concealment of Wells Fargo’s involvement prevented governing agencies from requiring Wells Fargo to work with us outside the court system to take our payments and resolve this entire matter. It also caused us to refrain from presenting defenses and demanding discovery that would have only applied to Wells Fargo – not HSBC.  It is well established in case law that courts have the power, jurisdiction and duty to ensure that judgments are not obtained by fraud or deceit and thereby made the instrument of injustice instead of justice. When it becomes evident this has occurred, the judgment must be set aside. Wells Fargo’s concealment, thwarting our discovery and defenses, blatant disregard for laws and regulations, and fraud on the Court itself require this Court to set aside the judgment in the interest of justice for all.

“In the exercise of this power, a court, while it still retains jurisdiction over the cause in which the order was made, may, for sufficient cause shown, amend, correct, resettle, modify, or vacate, as the case may be, an order previously made and entered on motion in the progress of the cause or proceeding; and a statute empowering a court to modify its orders should be liberally construed.”
60 C.J.S., Motions and Orders, § 62

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

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

“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. (Supreme Court 1819)

“[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 (1969)

“Accordingly, we conclude that a homeowner who has been foreclosed on by one with no right to do so — by those facts alone — sustains prejudice or harm sufficient to constitute a cause of action for wrongful foreclosure. When a non-debtholder forecloses, a homeowner is harmed by losing her home to an entity with no legal right to take it.

The potential consequences of wrongfully evicting homeowners are too severe to allow such a result. (See Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 410 [186 Cal.Rptr.3d 625] (Miles).)

[O]nly the entity currently entitled to enforce a debt may foreclose on the mortgage or deed of trust securing that debt...." (Yvanova, supra, 62 Cal.4th at p. 928.) “It is no mere `procedural nicety,' from a contractual point of view, to insist that only those with authority to foreclose on a borrower be permitted to do so.” (Id. at p. 938.)
‘The consequences of wrongfully evicting someone from their home are too severe to be left unchecked.’ (Ibid.)
Sciarratta v. US Bank National Assn., 202 Cal.Rptr.3d 219, 247 Cal. App. 4th 552 at 566 (Cal: Court of Appeal, 4th Appellate Dist., 1st Div. 2016)

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

“There is no question of the general doctrine that fraud vitiates the most solemn contracts, documents, and even judgments.

Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client's interest to the other side, — these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing.”
United States v. Throckmorton, 98 U.S. 61, 25 L. Ed. 93, 25 L. Ed. 2d 93 (1878)

“Furthermore, tampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception and fraud.

Equitable relief against fraudulent judgments is not of statutory creation. It is a judicially devised remedy fashioned to relieve hardships which, from time to time, arise from a hard and fast adherence to another court-made rule, the general rule that judgments should not be disturbed after the term of their entry has expired. Created to avert the evils of archaic rigidity, this equitable procedure has always been characterized by flexibility which enables it to meet new situations which demand equitable intervention, and to accord all the relief necessary to correct the particular injustices involved in these situations.” Hazel-Atlas Co. v. Hartford Co., 322 US 238, 64 S. Ct. 997, 88 L. Ed. 1250 (1944)

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

Indeed these facts not only justify the inquiry but impose upon us the duty to make it, even if no party to the original cause should be willing to cooperate, to the end that the records of the court might be purged of fraud, if any should be found to exist.

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

Laws and regulations have been written and codified to protect the innocent. The role of the judiciary is to enforce and uphold these laws. Codified laws and regulations are adequate to comprehensively protect our interests in this matter. Our guaranteed rights under the constitutions of the United States and the State of Montana must not be violated any further. Equal access to justice is available to all only when an independent, fair, and impartial judiciary follows and adheres to an unprejudiced rule of law and officiates a full and fair contest of the true merits of the case. Deceit and fraud have dishonored and defiled these proceedings, unjustly changed the status quo of this case, and created obstacles and impossibility for our family to secure access to justice. Public confidence demands the rulings of this Court be lawful and rightfully competent.

“An independent, fair and impartial judiciary is indispensable to our system of justice. The United States legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law. Inherent in all the Rules contained in this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system. Judges…should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence.” Preamble to the Montana Code of Judicial Conduct

Wherefore, in the interest of justice, we move this court set aside the summary judgment order and final judgment so unresolved issues caused by the aforementioned deceit and fraud on the court can be necessarily addressed, and so we, the Court, and the World At Large may determine who the real party in interest is in this matter and insure justice is served and the rule of law appropriately followed.

Oral argument requested.




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