Appellants' Petition For Rehearing

Comes now, Nick and Donna Nickerson, in accordance with M.R.App.P. 20, submit this Petition for Rehearing to compel this Supreme Court to recognize a mistake in judgment has been made and to grant immediate relief.

I. The Supreme Court Has overlooked facts material to the decision.

A. Facts and evidence regarding Wells Fargo’s unlawful rejection of our payment attempts have been overlooked that demand judgment be reversed:

Unrefuted testimony in the record establishes Wells Fargo refused to accept our payments. Bank employees have corroborated our commitment to our financial obligations, affirmed our word is credible, and provided documentation we tried to pay. A sworn to, signed and notary seal stamped payment slip that states, “Tried to make pay” is in the record. Amanda Nickerson, Chad Nickerson, Stephanie Nickerson, Kristin Wright and Jeannie Smith have provided eyewitness testimony of prevention of performance, abuse and fraud. These witnesses were properly disclosed in the Witness List and their testimony is not refuted by HSBC. Per Black’s Law, this evidence and testimony cannot be deemed “mere allegations” when it is the best evidence that can be attained. Additionally, the District Court denied and has repeatedly ignored requests to provide testimony even though adults present and with firsthand knowledge of all interactions with Wells Fargo have requested opportunity to intervene and provide additional testimony. Account records, communication notations, recorded conversations, employee testimony, and other such evidence fully corroborate all our claims and are readily available for production. However, HSBC and Wells Fargo have concealed this evidence, and the District Court has quashed all our attempts to compel this evidence be produced. Montana authorities have admitted Wells Fargo prevented our performance and is unlawfully targeting our entire financial portfolio, but no Montana authority has been willing to stand up to Wells Fargo. This Court has overlooked the prejudice caused and impossibility created by Wells Fargo’s actions and inactions. Fact which establish we have made every reasonable attempt to secure our records and have presented the best evidence lawfully available to us to prove prevention of performance are unrefuted.

Two parties - Wells Fargo and our family - have firsthand knowledge Wells Fargo wrongly rejected our payments. We have testified and BEGGED for all records to be disclosed. They have hidden our account documentation and threatened their employees. This judgment cannot lawfully stand. See Emergency Motion to Enforce Stay including exhibits.

B. In its Opinion ¶17, the Court erroneously states, “Their failure to pay is undisputed. The Nickersons admitted they had not paid the mortgage payment since 2012.”

We reject and have denied the allegation we have not made a mortgage payment since March 2012, or that our alleged failure to pay is undisputed. The evidence does not support those allegations.

“[Mrs. Nickerson] Secondly, We never stopped making payments. The bank stopped accepting payments. There is a big difference. For her to say there’s no argument that we missed payments, there is a big difference in whether o not we admit we stopped making, or whether she stopped - Wells Fargo stopped accepting them.” Transcript, p. 62:14-20.

Our only admission regarding payments is the fact Wells Fargo stopped accepting payments and we heroically fought to make them work with us. The Court has erred in claiming we admitted we have not paid a mortgage payment since 2012. The banks maliciously prevented our performance. Neither HSBC nor Wells Fargo has denied they did not reject our payments nor have they presented any evidence or testimony to refute ours. Payment refused excuses the debtor. Wells Fargo 1) repeatedly broke promises to provide account documentation before and during this litigation, 2) threatened employees with personal knowledge of Wells Fargo’s refusal to accept our payments from providing testimony, 3) refused to obey federal laws requiring they provide our records upon request, and 4) refused to submit to our subpoena for records. Emergency motion to Enforce Stay -  Exhibits 2-5

C. The Court erred in stating, “the Nickersons have failed to produce evidence showing their payment was wrongfully refused.” Opinion ¶18:

The Affidavit of Nick Nickerson in Support of Motion for Extension of Time to Complete Discovery at ¶18, presents testimony demonstrating Wells Fargo wrongfully refused our payments attempts by violating MCA § 32-9-170. Mortgage Servicer Duties. In addition, we provided further evidence and argument detailing Wells Fargo’s violations of agreements with Montana and Montana law:

Ÿ Brief in Support of Motion for Extension of Time to Complete Discovery - p. 7, L 26 - p. 8, L 11.

Ÿ Response in Opposition to Motion to Quash - p. 7, pp. 12-16

Ÿ Emergency Motion to Enforce Stay - pp. 6-9

Ÿ Amended Answer, Counterclaim and Demand for Jury Trial § Bank Errors pp. 6-12

 

Neither Wells Fargo nor HSBC have provided any evidence or testimony to refute this testimony and argument. Their violations prevented us from stopping this malicious assault.

Therefore, Wells Fargo’s violations of their settlement agreement with Montana and their violations of Montana law demonstrate Wells Fargo wrongfully refused our payments.

D. The Court erred when it stated, “Summary judgment was properly granted to HSBC.”

In response to our timely request the case be dismissed prior to trial based on issues of fact that established HSBC lacked standing, HSBC filed a Brief In Response To Defendant’s Motion For Summary Judgment And Brief In Support of Plaintiff’s Cross-Motion For Summary Judgment (one document filed a day after the extended deadline). HSBC never filed a cross-motion for summary judgment. This “response” expanded the summary judgment process though the discovery timeline was not complete and our motion related to issues of fact regarding standing. We clearly informed the Court of our need and intent to amend our pleadings, communicated the banks obstruction of discovery, and consequently filed our amended pleadings in accordance with the Court’s scheduling order. Fifty-three days post the deadline to respond, when our pleadings were deemed admitted, opposing counsel falsely claimed our rights to amend had been forfeited. This violated the rules, but the District Court prejudicially reversed our amended pleadings and denied us opportunity to expand the factual record to defend against HSBC’s expanded summary judgment motion. Consequently, due to the absence of those facts, summary judgment in favor of HSBC was granted.

E. HSBC has not established lawful ownership per Montana law, and the Court has overlooked the facts of this point vital to the decision.

A contract cannot arise out of an illegal act. Montana Penal Code, Part I, Title VII, Chapter 4, Section 232 codifies knowingly recording a false instrument is a felony offense. Thus a document’s public recordation does not, in and of itself, make it true. In our Brief - p. 28¶¶ 4) and 5), and Reply Brief - pp. 13-16 § D, we demonstrate and argue why the assignments are fraudulent and falsely filed.

Ÿ According to long standing precedent, the August 2012 assignment is a nullity because it only assigns the mortgage. First Nat’l Bank of Saco v. Vagg, 65 M 34, 212 P 509 (1922). Cornish v. Woolverton, 32 M 456, 81 P 4 (1905).

Ÿ HSBC did not believe the first assignment occurred in April 2010 because they did not provide the federally mandated notice of new creditor.

Ÿ Wells Fargo did not believe the April 2010 assignment was valid as evidenced by their claim in the alleged default letter of May 2010 that they had a security interest in our property, and because they filed a second assignment in August 2012.

 

For these reasons and more, clearly, the assignments recorded are a false testimony of the alleged transfer of ownership from Wells Fargo to HSBC and are invalid and unlawful. 

Common law, case law and other authority permit us to question the validity of the assignments from Wells Fargo to HSBC and injuries suffered grant us standing to challenge their enforceability. This Court erred in claiming otherwise. Ortiz v. Citimortgage, Inc., 954 F.Supp.2d 581 (S.D.Tex.2013). Miller v. Homecomings Financial, LLC, 881 F. Supp. 2d 825 (S.D. Tex. 2012)

Injuries suffered due to the alleged assignment being entered in a closed trust grants us standing to challenge the legality and enforceability of such an assignment. See Reply Brief, pp. 10-12 § C. Wells Fargo claimed they could not reinstate or modify our loan because it was allegedly put into the trust. This injured us and prevented us from stopping the pending foreclosure. Therefore, because the assignments into the trust caused us injury, we have standing to challenge those assignments and any agreements governing the trusts inter action with us. Printz v. US, 854 F. Supp. 1503 (D. Mont. 1994).

II. The Supreme Court’s decision overlooked the following questions that defeat judgment in favor of HSBC:

A. Has HSBC suffered any injury as a result of any alleged default?

See Brief - p. 34#5. This question and the argument presented in our Brief were totally overlooked by this Court. Since Wells Fargo is obligated to “advance from its own funds the full amount of Monthly Payments”, HSBC has sustained no injury, and thus, they have no standing to bring a complaint against us.

B. What entity is prosecuting the complaint?

This question is decisive to the case. Are opposing counsels working for HSBC or Wells Fargo? Kenneth Lay of Crowley & Fleck has admitted to the Supreme Court their client in this matter is Wells Fargo. However, neither the District Court nor this Supreme Court has granted our lawful requests for proof of authority. MCA § 37-61-402. Brief in Support of Motion to Vacate and Objection to Order on Motion for Extension of Time p. 8, L. 6-19. HSBC and Wells Fargo have both denied involvement in this complaint. Affidavit of Nick Nickerson in Support of Motion for Summary Judgment - Exhibit’s A and B.

If Ms. Peterman had been compelled to answer this question and provide proof of authority, the entire face of this litigation could have been decisively different. The banks could have been forced to admit liability for their actions and inactions. Instead, Ms. Peterman’s deceit tortuously obstructed and interfered with justice.

C. Why was Wells Fargo wrong to refuse our payments?

The foreclosure burden is there a debt, does the alleged lender own the debt, and is their non-payment of the debt cannot be the governing standard when a servicer is interjected into the midst of the transactions. Justice requires the rule for foreclosure to be expanded to consider the servicers lawful obligations and duties as well. In this case, simply establishing non-payment of the debt is not enough to permit foreclosure. The evidence and testimony presented by us and the lack of evidence and testimony presented by HSBC make it an undisputed fact Wells Fargo prevented our performance, refused to work with us to resolve any alleged default, and violated Montana law - MCA § 32-9-170. Mortgage Servicer Duties and MCA § 28-1-211. Implied covenant of good faith and fair dealing. Emergency Motion To Enforce Stay - pp. 6-9. Further, Wells Fargo fatally failed to follow servicing agreement guidelines to resolve any alleged default. When there is a servicer involved in the mortgage processing,  the lender must be required to affirmatively present evidence that the servicer fulfilled all its obligations according to the law to lawfully foreclose. As claimed throughout this litigation, HSBC did not do so. Allowing the Servicer to violate Montana, Federal and common laws to conceal illegal acts; avert substantial and significant liability and exposure; and secure unjust gain is wrong. Therefore, since Wells Fargo violated Montana and governing laws and their obligations to Montana and us, breached any alleged contractual agreements, and HSBC did not present any evidence to the contrary, according to the law, HSBC must not be allowed to foreclose.

III. The Supreme Court’s decision conflicts with statures and controlling decisions.

A. Summary judgment standards:

In accordance with Yarbro, Ltd. v. Missoula Fed. Credit Union, 2002 MT 152, ¶¶ 9-10,310 Mont. 346, 50 P. 3d 158, we presented affidavit testimony demonstrating the material fact Wells Fargo wrongfully rejected our payments and this action is rooted and has been litigated in fraud. See supra §  (I).

In accordance with Clark v. Eagle Sys., 279 Mont. at 284, 927 P.2d at 998 (1996), all reasonable inferences from the record in this case are in our favor. HSBC and Wells Fargo prevented our performance, committed illegal acts, and breached and violated all laws and any alleged contracts involving this property. Their failure to refute this provides further inferences in our favor.

The authority found in Sparks v. ALLSTATE MEDICAL EQUIPMENT INC., Case No. 1:14CV00166EJLCWD. (D. Idaho, 2015) taken in conjunction with Yarbro, requires our affidavit testimony to be believed. Further, this Court is not to act as a trier of fact but to determine an issue of material fact. It is undisputed Wells Fargo’s prevention of performance is an issue of material fact.

In accordance with Hiebert v. Cascade County, 2002 MT 233, 311 Mont. 471, 56 P. 3d 848 (2002), HSBC has failed to produce any summary judgment admissible evidence. They have failed to provide any affidavits, and the documents presented were not sworn to or validated by anyone with personal knowledge. Since HSBC has flagrantly ignored and violated the requirements of M.R.Civ.P. 56, summary judgment in their favor is unlawful.

B. Freely granting leave to amend pleadings when justice so requires:

HSBC has denied involvement in this action. Wells Fargo has refused to provide discovery. Our discovery efforts uncovered 24 affirmative defenses and 11 causes of action. Fraud (pled with specificity), breach of contract, negligent and intentional infliction of emotional distress, MCPA violations, breach of covenant of good faith and fair dealing, prevention of performance, unconscionability, unclean hands and more are detailed in our amended answer and counterclaim. See Amended Answer, Counterclaim and Demand for Jury Trial. According to the controlling decision First Sec. Bank v. Ranch Recovery Ltd., 1999 Mont. 43, 976 O,2d 956 (1999), which was overlooked by this Court, justice requires we should have been allowed to amend our answer and present our counterclaims. Judicial efficiency also requires we be allowed to amend and present our claims “so that all claims arising from the same transaction may be resolved in the same action.” First Sec. Bank. Id.

Further, this Court appears to totally ignore, disregard and misinterpret our arguments in our Brief because none were addressed or refuted in the Opinion, The Court states, “The Nickersons contend they did not have sufficient time to assert affirmative defenses or conduct discovery,” and then analyzes this issue considering this limitation. Our amendments were filed on time in accordance with the scheduling order. Our summary judgment to dismiss the complaint based on lack of standing was timely filed. Additional assertions made and controlling argument and cases presented that demonstrate we should have been allowed to amend and that an evidentiary hearing should have held were simply overlooked by this Court. Further, this Court overlooked how the District Court’s failure to assist with HSBC and Wells Fargo’s non-compliance has impeded our discovery attempts throughout this litigation and created undue injuries in the decision. See Brief - pp. 35-41 § B.

C. The Court has erred in its claims in Opinion ¶ 19 “HSBC presented evidence that it currently holds the note and mortgage…HSBC has established it is the current holder of the mortgage. As a matter of law HSBC is entitled to summary judgment.”

This is an error. According to Culbertson St. Bank v. Dahl, 190 Mont. 33, 617 P.2d (1980) and Deutsche Bank Nat. v. Mitchell, 422 N.J. Super. 214, 27 A.3d 1229 (2011), the Uniform Commercial Code (“UCC”) is the controlling law regarding transfers of ownership of promissory notes. The UCC (MCA § 30-1-201(2)(v)(i)) defines “holder” as the person in possession of the note that is either endorsed to the person in possession or endorsed in blank. In every instance, except if the note was lost or stolen, the person entitled to enforce must be in possession of the note - MCA § 30-3-301. HSBC has relied solely upon recorded assignments to claim holder status  which is NOT in compliance with controlling law. The UCC is clear. HSBC must have produced evidence that the note was in its possession and endorsed to HSBC or endorsed in blank. The copy of the note provided with the Complaint is endorsed to Wells Fargo and HSBC has provided no evidence demonstrating they are in possession of the note. Therefore, according to controlling law, HSBC is not the note holder, and thus, HSBC is not entitled to enforce the note.

Further, HSBC has denied all responsibility and any involvement in this foreclosure whatsoever and has not refuted our testimony or evidence they are not the holder. Wells Fargo has claimed ownership and holdership of the note after the alleged transfer of ownership took place. Thus, the record and all laws governing any alleged agreements prevent this foreclosure. See Reply Brief - p. 15.

CONCLUSION

Other facts, questions and controlling decisions addressed in our Brief and in the record have been overlooked. Word limit restrictions prevent us from addressing them in this petition. This Court has overlooked our arguments and evidence, failed to examine the authenticity of opposing counsel’s actions and arguments, and neglected to recognize  the prejudice created by the District Court and how it has impacted this litigation. The decision rendered is in error. Enormous precedents are being set that require this judgment to be reviewed on its merits. Therefore, we request the Court reconsider and modify its opinion to reverse summary judgment or schedule an evidentiary hearing to review the truths of this matter. Montana property rights are on trial. This is our home. we want to keep it. We have and have always had the werewithal to keep it. As a matter of truth, we have give no cause or right for our home to be taken from us. As a matter of fact and law, HSBC is not entitled to summary judgment.