Brief In Support of Summary Judgment

 

Summary judgment for the Nickersons is appropriate under M.R.Civ.P. 56(c)(3) because there is no genuine issue as to any material fact, and based on the undisputed material facts, the Nickersons are entitled to judgment as a matter of law. The purpose of summary judgment is to dispose of those actions which do not raise genuine issues of material fact and to eliminate the expense and burden of unnecessary trials. Hajenga v. Schwein, 2007 MT 80, 336 Mont. 507, 155 P.3d 1241. Summary judgment will prevent a needless trial with its incumbent expense and exhaustive effort by the parties, the court and the jury.

 

UNDISPUTED FACTS

I. The Defendants executed a Note and Mortgage on March 30, 2007.

The Nickersons executed a Note and Mortgage on March 30, 2007. Exhibits A and B of Plaintiff’s Complaint and incorporated here by reference “Note” and “Mortgage” appear to be copies of those instruments, but the Nickersons cannot attest that those exhibits are true and correct copies of the original instruments.

II. The Plaintiff, HSBC, lacks legal standing to bring this complaint.

            Standing is the basic fundamental element of any civil action. HSBC lacks standing for the following reasons:

A. HSBC admits they do not have authority to foreclose. In response to the Nickerson’s inquiry about why HSBC is the Plaintiff in this action when the only entity the Nickersons knew in association with their mortgage was Wells Fargo, Christina Johnson, an executive officer of HSBC, sent the Nickersons two letters (Affidavit of Nick Nickerson in Support of  Summary Judgment, Exhibits A and B). Christina Johnson states; HSBC has only a “nominal role with respect to the properties owned by the trust”, and “under the agreements that establish the trusts, other companies are designated as the servicers of the loans and those servicers handle matters such as mortgage foreclosures…” Wells Fargo Home Mortgage is the servicer of our mortgage. Therefore, this complaint must be dismissed because, by admission of HSBC, Wells Fargo Home Mortgage, not HSBC, is the entity responsible for foreclosures and HSBC does not have the authority to foreclose due to the agreements that govern their trust and thereby lacks standing in this case.

B. HSBC is not the Note Holder. HSBC is not the holder of the Note and therefore, lacks standing to enforce it. See Note, page 4. The Note specifically states

WITHOUT RECOURSE
PAY TO THE ORDER OF

WELLS FARGO BANK, N.A.

BY __Joan Mills signature_

Joan M. Mills, Vice President

The U.C.C. defines “holder” as “the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.” U.C.C. § 1-201(21). In order for HSBC to be considered the note holder and hold standing for this complaint, they must be in possession of the note if it is deemed payable to bearer or it must be indorsed to them.

The Note provided with the Complaint is not indorsed to HSBC. The only entity referenced in the indorsement on this Note is Wells Fargo. HSBC is not mentioned, therefore, the Note is not indorsed to HSBC.

 HSBC is not in possession of the Note. The Complaint ¶ 1. Plaintiff, labels HSBC as the “Bank” and Complaint ¶ 4. Promissory Note, states “Nickerson is indebted to Bank under the Promissory Note, executed and delivered to the Bank on March 30, 2007…” HSBC is claiming possession of the Note based on the allegation in their complaint “…Note, executed and delivered to Bank” (meaning HSBC). This is simply not true. The Note states in ¶ 1. BORROWER’S PROMISE TO PAY “In return for a loan that I have received, I promise to pay…to the order of the Lender. The Lender is WELLS FARGO BANK, N.A.” The Note was specifically executed and delivered to Wells Fargo Bank, N.A. on March 30, 2007, not HSBC. HSBC cannot claim possession of the Note and that the Nickersons are indebted to them when the Note was executed and delivered to Wells Fargo.

Since the note is not indorsed to the Plaintiff and the note was executed and delivered to Wells Fargo, HSBC is not the note holder. Therefore, they lack standing to bring this action and their complaint must be dismissed. To allow an action to be brought by a party without standing puts the opposing party at risk of being held liable for the same debt twice.

C. HSBC does not have a beneficial interest in the Mortgage. HSBC, in their Complaint contends they are the beneficiary of the Mortgage by virtue of the assignments recorded on April 16, 2010 and on August 24, 2012 (Affidavit of Nick Nickerson in Support of  Summary Judgment, Exhibits C and D and incorporated here by reference “Exhibit C” and “Exhibit D”). However, both of these documents are completely fraudulent and cannot be used to establish beneficial interest due to the following facts:

1. There are two assignments for the same transfer of beneficial interest. One cannot sell their interest in a mortgage twice nor can one sell a mortgage that has already been sold. In addition, the very fact there are two assignments, with no intervening assignments back to Wells Fargo, questions the validity of the assignments and the intent of the entities creating them. Wells Fargo Bank, NA, must have believed there was enough wrong with the first assignment recorded on April 16, 2010 (Exhibit C) to cause them to purposefully direct an additional assignment to be fabricated. Further, as shown below, it is an undisputable fact they tried to illegally transfer the note and mortgage on the same document and that the assignment was falsified by the deceptive authentication of Jeff Stenman. Therefore, these assignments cannot be used to prove a beneficial interest in this mortgage.
2. Exhibit C attempts to assign the Note along with the Mortgage. According to U.C.C. Article 3, notes must be negotiated, not assigned. Assigning a note on the same document as the mortgage is not legal and renders the assignment null and void.

3. Exhibit C was illegally executed by robo-signer Jeff Stenman. Robo-signers are: a) any persons in the mortgage industry who, under oath, sign a mortgage affidavit, assignment, power of attorney, etc. without personally verifying the information is true, b) individuals who forge executive signatures, c) lower-level employees who sign their own name and lie about their title, i.e. impersonate an officer of the company, d) people who execute documents when a notary is not present thereby causing the notary to lie about their signatures and, e) notaries who notarize fraudulent signatures, impersonators, and documents that are signed outside of their presence. In all cases, robo-signing involves unethical people illegally signing critical documents and falsely swearing to their truth and accuracy, while deliberately choosing not to verify the information they stated as absolute fact and for the express purpose to intentionally and maliciously fraud and defraud innocent homeowners. Jeff Stenman, the signer of this assignment, confessed to fraudulently authenticating and executing assignments. Mr. Stenman admitted in a deposition in Reiner v. Northwest Trustee he signed documents outside of the presence of a notary thereby forcing his notary to lie about their notarization. He further stated the information provided on the document was normally drafted by someone else (generally by Routh, Crabtree & Olsen, a.k.a. RCO Legal which is the firm representing HSBC in this matter) and sent to him for signature. Mr. Stenman admitted he did not personally validate the information contained in the documents was true or accurate before he executed them as fact. This not only constitutes criminal negligence, but its also deliberate and intentional fraud. Complete transcripts of Mr. Stenman’s deposition can be found at http://stopforeclosurefraud.com/wp-content/uploads/2014/01/Stenman-12-12-12-Condense.pdf . References to what he has done or perhaps more appropriately, has not done are on deposition pages 85-92 (Affidavit of Nick Nickerson in Support of  Summary Judgment, Exhibit E). Therefore, since Mr. Stenman has admitted to conducting the unethical and illegal practices associated with robo-signing in his normal course of business, there is serious doubt about the validity of any assignment he has executed and they cannot and should not be considered legally enforceable.

4. Exhibit C was notarized two days after it was signed. This assignment was signed and executed by Mr. Stenman as an attorney in fact for Wells Fargo on April 10, 2010, and the date it was notarized is April 12, 2010. According to the State of Montana’s, Notary Public Handbook as found on the Secretary of State’s website sos.mt.gov/notary/assets/pdfs/Notary_Handbook.pdf.

 

“Witnessing a signature is exactly that: You watch the signer sign the document. Occasionally, someone will bring a document to you that has already been signed, although the preprinted form calls for you to witness the person sign the document. In situations like that, you must have the person sign the document again in your presence. It is not necessary for the signer to cross out the first signature; he or she should just sign again as close to the original signature as possible.

 

When witnessing a signature, the notary will do the following:

· Identify the signer as the person who is supposed to sign the document

· Determine that the signer is knowingly and willing signing the document

· Have the signer sign the document as you watch”

A notary cannot legally or ethically notarize a signature they could not have witnessed because it occurred two days in the past. That is notary fraud. Since the purpose of notarization is to record the assignment in the County records, notary fraud is every bit intended as part of a larger conspiracy to commit fraud not only on the Nickersons but the court as well. In light of the timing of the execution of this document and its subsequent notarization, Mr. Stenman falsely and unethically executed this assignment and the notary committed fraud. This establishes doubt about the truthfulness, accuracy and validity of this assignment. Therefore, this document (Exhibit C) cannot be clearly represented as a genuine, legal assignment and is thereby, null and void.

5. The assignment recorded on August 24, 2012, (Exhibit D) is full of inaccuracies and inconsistencies which invalidates the document itself and is an intentional and malicious attempt to defraud the Nickersons.

a. Exhibit D is titled COPORATE ASSIGNMENT OF MORTGAGE, however, page 2 of the assignment is titled CORPORATE ASSIGNMENT OF DEED OF TRUST. One document cannot be both a Mortgage and a Deed of Trust. It has to be one or the other.

b. Exhibit D is an assignment of mortgage, however, within the document itself it calls our Mortgage a Deed of Trust five times and assigns “beneficial interest under the Deed of Trust.” These are significant errors because in Montana Mortgages and Deeds of Trust are treated differently. For example, Deeds of Trust fall under the Montana Small Tract Financing Act which allows properties that are under 40 acres in area to be foreclosed by a Power of Sale with no right of redemption. Whereas, Mortgages must be foreclosed upon using the judicial process and have very specific redemption rights. Attempting to mischaracterize the Nickerson’s Mortgage as a Deed of Trust is an intentional attempt to defraud the Nickersons.

c.  Exhibit D states: “IN WITNESS WHEREOF, the assignor has executed these presents the day and year first above written:” The date first above written is August 22, 2012. The date it was actually executed by Carla M. Naughton was August 23, 2012. The signature of an authorized signer is what constitutes execution. Therefore, the signer cannot swear to execution on a date different than when it was signed (executed).

6. Exhibit D was robo-signed by Carla M. Naughton. As stated earlier, robo-signing involves unethical people illegally signing critical documents and falsely swearing to their truth and accuracy, while deliberately choosing not to verify the information they stated as absolute fact. This document is full of inaccuracies as detailed above and could not have been validated by the signer, Carla M. Naughton. We have also found additional evidence implicating Carla M. Naughton as a robo-signer. She signed our assignment as Vice President Loan Documentation, however, in her LinkedIn account she states she is in Client Relations at Wells Fargo http://www.linkedin.com/pub/carla-naughton/5/332/3a0. See Affidavit of Nick Nickerson in Support of  Summary Judgment, Exhibit D. Therefore, there is a question as to whether she is really a Vice President or impersonating an officer in order to produce illegal documents. However, there is no question as to whether or not she verified the accuracy of the document she signed because of the numerous inaccuracies and false statements within it. Carla Naughton illegally executed this assignment with the intention to defraud the Nickersons. Therefore, this assignment (Exhibit D) is fraudulent as well and thereby, null and void.

7. Wells Fargo did not have beneficial interest at the time of the assignments.
Based on the Plaintiff’s caption on the complaint, HSBC is indicating they are the TRUSTEE FOR WELLS FARGO ASSET SECURITIES CORPORATION, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-7 trust. If this is alleging our mortgage is part of a Mortgage Backed Securities Trust, then Wells Fargo Bank, N.A. could not have had any ownership or beneficial interest in our Note and Mortgage at the time they assigned them to HSBC. Wells Fargo would have already sold, assigned, indorsed or otherwise transferred all of their interest in our Note and Mortgage to Wells Fargo Asset Securities Corporation (the depositor) for deposit into the trust. Additionally, by Wells Fargo assigning interest of the Note and Mortgage to HSBC after the closing date of the trust, they are thereby introducing new assets into the trust which violates IRS and SEC compliance laws and regulations. Therefore, not only are both assignments fraudulent because Wells Fargo Bank, N.A., had no legal interest in the Note or Mortgage at the time of those assignments, but HSBC and their accomplice Wells Fargo are violating IRS and SEC laws and regulations regarding the tax exempt status of the trust and an illegal action cannot be used as proof of ownership.

Clearly, not only were the two assignments fraudulent because of their timing, but they were fraudulent because of their content and signatures as well, and therefore, cannot be relied upon to prove ownership which consequently leaves HSBC with a lack of standing to enforce the provisions of the contract and this complaint must be dismissed.

III. HSBC has breached the contract

The Nickersons do not admit to having a contract with HSBC. However, if the court determines there is a contract, then the Nickersons contend HSBC is in breach of that contract by bringing this complaint.

HSBC is in breach of contract by commencing this action and not providing notice. In section 20 of the Mortgage (Complaint Exhibit B) the second paragraph states. “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.” And section 22 states” Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument…” HSBC, in alleging ownership of the loan documents by virtue of assignment, is therefore bound to all of the provisions within those documents. HSBC has breached the contract in the following ways:

            1.  Pursuant to section 20 of the Mortgage, HSBC has breached the contract by commencing this action prior to notifying the Nickersons. HSBC has not sent any notice to the Nickersons alleging a breach of the Mortgage.

            2.  Pursuant to section 22 of the Mortgage, HSBC has breached the contract by not sending an acceleration notice to the Nickersons.

The only correspondence the Nickersons have received from HSBC are the letters referenced above where HSBC is placing full responsibility for foreclosure actions on Wells Fargo. Therefore, HSBC is in breach of the contract and this complaint must be dismissed.

IV. HSBC’s claims are fraud.

HSBC’s claims are fraud. Webster defines fraud as “deception; trick; artifice by which the right or interest of another is injured; a stratagem intended to obtain some undue advantage; an attempt to gain or the obtaining of an advantage over another by imposition or immoral means, particularly deception in contracts, or bargain and sale, either by stating falsehoods, or suppressing the truth.” HSBC’s claims are fraud because:

1. HSBC seeks to foreclose when they are not the Note holder.
2. HSBC seeks to foreclose on a property for which they have no beneficial interest.
3. HSBC seeks to defraud the Court and the Nickersons by using fraudulent documents to attempt to establish a false beneficial interest in the Nickerson’s property
4.  HSBC seeks to foreclose even though they have admitted they do not have the authority to do so.

5. HSBC seeks to foreclose even though they know they are in breach of contract.

Clearly, this action is based on claims that are deceptive and false. The motivation of such an intentional and malicious action can only be to obtain the undue advantage of stealing our beautiful home and family ranch and injuring our inalienable right to possess and protect our property.

ARGUMENT

Standard for Summary Judgment

Summary judgment must be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” M.R.Civ.P. 56(c)(3).  The court examines the pleadings, the discovery and disclosure materials on file, and any affidavits to determine whether there is a genuine issue as to any material fact relating to the legal issues raised and, if there is not, whether the moving party is entitled to judgment as a matter of law on the undisputed facts. Anderson v. Schenk, 2009 MT 399, ¶ 2, 353 Mont. 424, 220 P.3d 675.

 

HSBC IS NOT ENTITLED TO FORECLOSE

The Plaintiff, HSBC, in order to have standing to bring this complaint must, at a minimum, prove:

1. They are the note holder.

2. They have beneficial interest in the mortgage.

3. The documents they use to prove their interest are valid and not fraudulent
(i.e. not robo-signed or inaccurate or forged or unlawfully notarized, etc.)

4. They are not constrained from foreclosing by their trust agreements.

5. They are not in breach of the contract.

As evidenced above, the Plaintiff’s legal standing has failed on every count. The note is not indorsed to them, the assignments are fraudulent and not valid, they are in breach of contract, and by their own admission, they are not legally allowed to foreclose because their trust agreements grant specific authority to foreclose to other entities. Therefore, the Nickersons are entitled to judgment as a matter of law.

Wherefore, the Defendants request the following:

1. The Plaintiff’s claims to be dismissed with prejudice,

2. The Defendants be awarded all costs and fees associated with defending this claim,

3. The Defendants be awarded appropriate relief for emotional damages due to the attempt of the Plaintiff to illegally steal our family home and ranch from us and our children,

4. Any punitive action toward the Plaintiff for their intentional and malicious attempt to fraudulently foreclose on the Nickersons that would convey a meaningful public benefit by discouraging illegal foreclosure actions in this state and,

5. Any further relief the Court deems just and equitable.