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Reply Brief In Support of Request For Emergency Injunction To Postpone Sale
Filed February 28, 2020

Reply Brief In Support of Request For Emergency Injunction To Postpone Sale


COMES NOW, Nick and Donna Nickerson, as Defendants Pro Se per 28 U.S.C. § 1654,  submit this Reply Brief in Support of Request for Emergency Injunction to Postpone Sale. We hereby incorporate our Motion to Set Aside Judgment and Summary Judgment Order, and Brief in Support of Motion to Set Aside Judgment and Summary Judgment Order; Motion for Leave to Amend Answer, Counterclaim, Third Party Complaint, and Demand For a Jury Trial, and Brief in Support of Motion for Leave to Amend Answer, Counterclaim, Third Party Complaint, and Demand For a Jury Trial, and the Affidavit of Nick Nickerson in Support of Motions in their entirety in this reply brief.

Due to their fraudulent concealment of and recent revelations of HSBC and Wells Fargo’s true involvement in this matter, we frequently refer to both throughout this Reply Brief. Although HSBC’s brief is now recorded as being filed on February 11, 2020, members of our family were at the Lewis and Clark County Courthouse on February 12, 2020, and their response brief was not present on the court docket. We were served by mail, and received the Plaintiff’s response on February 14, and this reply brief is due on today, February 28, 2020 per M.R.Civ.P. 6(d). Further, HSBC waiting until the day before the postponed sale to respond to our Request for Emergency Injunction to Postpone Sale (emphasis added) shows bad faith, and an effort to undermine our request for an emergency injunction. Fair and just should have caused them to stipulate to an extension.

This Emergency Injunction should have been granted under MCA § 27-19-201(4).

 

MCA 27-19-201.  When preliminary injunction may be granted. An injunction order may be granted in the following cases:

(4)  when it appears that the adverse party, during the pendency of the action, threatens or is about to remove or to dispose of the adverse party's property with intent to defraud the applicant, an injunction order may be granted to restrain the removal or disposition;

 

We move the Court to vacate the sale and grant our Request for Emergency Injunction to Postpone Sale. The requested relief would minimize harm to all parties and non-parties and could prevent needless time and expense of future actions.

INTRODUCTION AND BACKGROUND

In March of 2007, Well Fargo loaned us $952,000 on our 3-parcel property. This loan was based solely on land value as our custom built log home was unfinished at the time, and was not considered in value computations.

At the same time, we were presented with a Deed of Trust by Wells Fargo to secure the loan. We refused to sign the illegal Deed of Trust presented because we had a sufficient understanding of the difference in our legal rights with a mortgage versus a deed of trust. The title agent identified in our witness list can confirm we left the closing table, but he called us back a few minutes later and told us Wells Fargo made a mistake and had now sent over the correct paperwork. We walked back in and were presented with a document titled “Mortgage.” Because of our longstanding relationship with Wells Fargo as a financial partner, we signed what we were assured was a mortgage. We have since learned this document was illegal, fraudulently edited, adhesive, and unconscionable.

As the record shows, five years and around a quarter million dollars of monthly payments later, our on time monthly payment was recorded by Wells Fargo on March 1, 2012. HSBC filed their complaint based on a default as of this date in error. Even though we have provided evidence from Wells Fargo this is in error, this fatal flaw and deficiency of HSBC’s Complaint has been prejudicially ignored. Since that time, Wells Fargo obdurately refused all offers of payment and refused all attempts to cure their intentionally created default. Wells Fargo and HSBC have never at any time communicated their willingness to accept payments since that time. All payment attempts even by third party intervenors have been refused.

HSBC’s Brief in Opposition to Defendant’s Request for Emergency Injunction to Postpone Sale stated, “On or about March 4, 2013 HSBC filed this action seeking a Court order declaring the Note and Mortgage to be in default.” As a matter of record and accuracy, this lawsuit was filed on April 1, 2013. HSBC has attempted to play us and this Court as fools to circumvent, trample on, and violate our Constitutional, contractual, and regulatory rights by their legal chicanery ever since. HSBC and their accomplices know we did not default and that we made every payment we were allowed to make. They have collusively attempted to foreclose and steal our hard-earned life savings, time and monetary investments, equity, chosen way of life, retirement, heritage, family home and ranch, and over $500,000 we have tendered to Wells Fargo toward the ownership of our property.

On January 22, 2015, this Court entered its Summary Judgment in favor of HSBC, not its final judgment as stated by opposing counsel their response. This Court granted summary judgment to HSBC by considering challenged, disputed, unauthenticated, and unsworn alleged account records from Wells Fargo, and an unauthenticated alleged default letter that indicates Wells Fargo is the lender, not HSBC. These were attached as exhibits to the Plaintiff’s Brief in Response to Defendant’s Motion for Summary Judgment and Brief in Support of Plaintiff’s Cross-Motion for Summary Judgment and were inadmissible per M.R.E. 803(6), 901, 902, and 1002. Yet, this Court incredulously used this inadmissible evidence to set an unproven and unsubstantiated default amount and determine a non-lender had fulfilled HSBC’s notice requirements under the alleged contract. This Court also inconceivably twisted factual statements made during oral argument that Wells Fargo refused our payments and prevented our performance to mean we admitted we failed to make our payments. Though this prejudicially corrected fatal flaws in HSBC’s false claims of default, unfairly converting our prevention of performance evidence and testimony to mean we had admitted we had not made payments does not align with the truth or the facts of the matter. We did not default. We made our payments. Thus, all truth and facts affirm any existing default or breach in contract was caused solely and entirely by Wells Fargo and HSBC, not by our family.

On May 26, 2015, we filed a Notice of Appeal of this Court’s summary judgment order to the Montana Supreme Court in Case No. DA 15-0332.

On February 19, 2016, this Court entered a Final Judgment.

On May 4, 2016, this matter was remanded to allow us to present our evidence Wells Fargo refused our payments. This Court ignored affidavits from eyewitnesses with personal knowledge of Wells Fargo refusing payments, refused to make Wells Fargo answer a subpoena, and ignored evidence that regulatory requirements were violated. This assisted HSBC and Wells Fargo in concealing evidence and procedurally manipulating the matter so it could be affirmed by the Montana Supreme Court. Substantial evidence and meritorious testimony based on personal knowledge was prejudicially quashed. Kenneth Lay of Crowley Fleck’s misrepresentations that we failed to present evidence implicates him as a willing accomplice to the slander and defamation of our character and the scheduled theft of our ranch. Montana Courts have and are violating our Constitutional and contractual rights by accepting these false accusations without allowing full and fair opportunity for us to defend ourselves.

On April 25, 2017, the Montana Supreme Court canceled the pending Sheriff’s Sale, rescinded the writ of execution, and instructed the District Court they had acted in error in issuing orders once the appeal had been filed. The Final Judgment was untimely issued after the appeal was filed, and thus was in error and without jurisdictional authority. We have been left in limbo until an action was filed we could challenge or appeal.

On August 22, 2017, due to the fraud, deceit, and concealment of evidence by HSBC, Wells Fargo, and their counsels of record, the Montana Supreme Court affirmed the Court’s summary judgment. No final judgment has ever been issued since this point.

On January 16, 2020, we received a letter in the mail that a public auction had been scheduled for January 29, 2020. This notice failed to comply with MCA § 71-1-224. This untimely and improper notice severely prejudiced our ability to protect and preserve our valid legal interests and security in our property.

Prior to the sale on January 29, 2020, we filed our Request for Emergency Injunction to Postpone Sale. Deputy Sheriff Clint Pullman informed us the Court denied our request. Contradictorily, the Court’s clerk told us the Court had not made a ruling, but indicated the Court was unwilling to consider our injunction until the bank responded. An agent who declined to confirm who she was allegedly representing was onsite to review the document with “the bank” telephonically. However, the Court did not respond to our injunction. Ultimately the sale was postponed because the alleged bank agent was unprepared to bid on all three parcels in accordance with MCA § 25-13-704. To accommodate the bank’s shortcoming, the sale was postponed until February 12, 2020. We properly objected to the sale. As of the morning of the sale, the Court had still not heard or responded to our request for an Emergency Injunction. Therefore, we moved the Court to vacate the sale to give lawful, statutory, and contractual opportunity so equal access to justice based on truth and reality could exist. We were denied access to the Court to seek relief.

On February 12, 2020, a sale of our property was held despite our objections and valid legal claims. Kenneth Lay of Crowley Fleck, allegedly represented HSBC at the sale. Kenneth Lay of Crowley Fleck appeared for Wells Fargo as “Plaintiff” on February 4, 2020, not HSBC. Further, he violated this Court’s order which only authorized the Plaintiff to bid its judgment amount and submitted as a credit bid an aggregate total of $355,807 for all three parcels.

 

ARGUMENT

In this case, a preliminary injunction is appropriate because we have demonstrated a

prima facie case throughout this document and our recent filings with the Court we are entitled to injunctive relief under MCA § 27-19-201(4).

 

MCA § 27-19-201.  When preliminary injunction may be granted. An injunction order may be granted in the following cases:

(4)  when it appears that the adverse party, during the pendency of the action, threatens or is about to remove or to dispose of the adverse party's property with intent to defraud the applicant, an injunction order may be granted to restrain the removal or disposition;

This Court is bound to ensure justice is served and that no party may take advantage of another through fraud. Fraud, deceit, procedural manipulation, and acute regulatory failure have prevented due process and a full and fair contest of the facts of this case.

 

“[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.

 

The recent appearance of Kenneth K. Lay claiming the Plaintiff is Wells Fargo, coupled with the letter of instruction from Hillary R. McCormack to the Lewis and Clark County Sheriff’s Office claiming this lawsuit is “Wells Fargo v. Nickerson” (see Brief in Support of Motion to Set Aside Judgment and Summary Judgment Order, and the Affidavit of Nick Nickerson in Support of Motions for proof of fraud and deceit practiced by opposing counsels) is reason enough that any reasonable person would see the necessity of granting an injunction postponing the sale.
Kenneth Lay cited,

 

“The allowance of a preliminary injunction is vested in the sound discretion of this Court, which has a “duty to minimize the injury or damage to all parties in the controversy.” Porter, 192 Mont. at 181-182, 627 P.2d at 839.

 

The requested injunction will minimize damage to both parties as explained throughout this reply brief, and in consideration of the facts this Court denied our Motion to Amend Answer, Counterclaim, And Demand For Jury Trial 174 days after it was deemed admitted, this Court refused to require Wells Fargo to comply with a subpoena, and HSBC and Wells Fargo have violated at a minimum M.R.Civ.P. 5.2 Privacy Protection for Filings Made With the Court; M.R.Civ.P. 7.1, M.R.Civ.P. 17(a), MCA § 25-9-205, MCA § 28-1-201, MCA § 28-1-211, MCA § 28-1-403, MCA § 28-1-1301, MCA § 30-14-103, MCA § 30-1-201. General Definitions(2)(v) ”Holder”(i); MCA § 32-9-170, MCA § 37-61-406, MCA § 45-6-325, MCA § 71-1-224, Montana Penal Code, Part I, Title VII, Chapter 4, Section 232; and 15 U.S.C. § 1641(g) among many others, it would be in the best interest of all parties to grant this injunction. No right to action can arise from an illegal act.

In this case, the Plaintiff has failed to establish condition precedent for almost 8 years. Issuing the requested injunction would have and still could prevent further harm to both parties. No evidence has been proffered the counsels of record are working on behalf of HSBC. HSBC’s involvement as the Plaintiff or true party in interest is in dispute, and we have properly objected to their right to act. Allowing this foreclosure to be consummated will incur substantial tax liabilities to HSBC and unknowing investors of the trust due to their violations of trust agreements and IRS Code 860. The Plaintiff attempts to color their argument and criminal actions with the statement “Defendants live payment-free in the property.” Maintaining a working ranch under such restrictive uncertainty and defending our property and good name against the Plaintiff’s false accusations has proven far more costly than satisfying the entire loan amount. We reject and are appalled by this mischaracterization of the truth and submit we have suffered tremendous injuries and damages due to the malicious, intentional, willful, and fraudulent actions of the Plaintiff that have irreversibly harmed and injured us, our plans, investment opportunities, income, and production. Irrecoverable time, substantial wealth, personal and available resources, and comprehensive costs expended in fighting this wrongful foreclosure and persecution for our faith for 8 years far exceeds the monetary and other costs associated with any alleged loan. Time, the truth, and future actions most certainly will dispel these lies, myths, and false claims and quantify the extraordinarily significant losses suffered.

As the Plaintiff has admitted, “Defendants are the owners of certain real property located in Lewis and Clark County.” As a matter of law and undisputed fact, we have the stronger and prior claim. Therefore, HSBC must firmly establish standing and prove their claim to overtake our ownership. Regardless of their presentations to this Court and any prejudices caused by the David and Goliath status quo, there are real, significant, and inescapable issues with their claims and they have failed to substantially prove their case. Fatal flaws exist that cannot be lawfully or legitimately refuted or ignored. These flaws have circumvented and prevented us from exercising our contractual, codified, and Constitutional rights to defend our ownership.

HSBC, Wells Fargo and opposing counsels are attempting to steal our equity and derive unjust gain by this fraudulent foreclosure proceeding. The alleged loan was secured by land value alone. Our Swedish cope, 3600 sq. ft. log home was unfinished at the time of the loan, and not considered in establishing the loan-to-value ratio. Readily available public records demonstrate and confirm land sales and real estate offerings in the area have escalated since the loan origination. The current replacement value of our finished log home exceeds the original loan value. We paid over REDACTED in 5 years toward the ownership of our ranch, and honored all agreed to, alleged, and other obligations toward our ranch. In breach of any alleged agreements and governing laws, Wells Fargo illegally fabricated an adhesive contract that was a treasonous affront to our financial history, portfolio, and stellar reputation. This entire foreclosure action is nothing short of a racketeering scheme by HSBC, Wells Fargo, and the attorneys of record. Manipulating and abusing this Court and its proceedings to deprive us of our property ownership and built up equity should be prosecuted, not rewarded. Sound, unbiased, and unprejudiced discretion require this Court to consider that no reasonable person who had established the credit and accumulated the down payment to obtain a million-dollar loan in the first place, would conceivably decide to stop making payments and lose their entire life savings, equity, agricultural investments, and family home. Further, it is axiomatic that reasonable homeowners and Montana business persons would find no reasonable person would then continue to invest in their family ranch and resolutely stand by their claims despite extraordinary challenges for over 8 years unless they did not default and were standing on the truth. We move Montana Courts to concede our lawful and persistent actions earn us a fair representation in Court.

 

I. WE ARE ENTITLED TO RELIEF UNDER MCA § 27-19-201(4).

According to Buelow v. Willems, there is no formal, written application or petition for an injunction format established.

 

“Although reasonable notice of the time and place of making an application for a
preliminary injunction is required under this section, there is no Montana statute that requires a party to submit a formal, written application or petition for an injunction.” Buelow v. Willems, 225 M 225, 731 P2d 1309, 44 St. Rep. 189 (1987)

 

We are entitled to relief under MCA § 27-19-201(4) due to the recent evidence and disclosure of fraud and deceit practiced by HSBC, Wells Fargo, the counsels of record, and their accomplices (see Brief in Support of Motion to Set Aside Judgment and Summary Judgment Order, and the Affidavit of Nick Nickerson in Support of Motions).

 

MCA § 27-19-201.  When preliminary injunction may be granted. An injunction order may be granted in the following cases:

(4)  when it appears that the adverse party, during the pendency of the action, threatens or is about to remove or to dispose of the adverse party's property with intent to defraud the applicant, an injunction order may be granted to restrain the removal or disposition;

 

First, there is substantial evidence that indicates HSBC, Wells Fargo, and the counsels of record have manipulated and misrepresented truths of this matter to deceive and defraud us and this Court who the real party in interest is. This willful and intentional effort to sidestep discovery and avoid penalties for their violations of Montana and Federal law, and the National Mortgage Settlement has created grave miscarriages of justice that are threatening our home, wealth, and trust in the honesty and integrity of the Montana Judiciary.

The Plaintiff is attempting to hold this Court to the law-of-the-case doctrine in a premature and desperate effort to continue controlling the narrative of the case, and prevent their concealment, deceit, crimes, fraud, and wrongdoing from being exposed. Due process has not occurred because we have been denied opportunity to bring claims based on the truths of this matter due to fraud and deceit. Although this injunction was not requested under this rule, it should be noted that under M.R.Civ.P. 60(d)(1) and (3) this Court has the inherent power to reverse it decisions for the fraud and deceit practiced upon this Court by HSBC and/or Wells Fargo and opposing counsels. It is also long-standing case law, the law-of-the-case doctrine should never be used to allow manifest injustice, and the Court has the power to act to prevent injustice. We have approached this Court as innocent victims seeking advocacy in the law and relief by the Montana judiciary.

 

“The Supreme Court said in England v. Hospital of Good Samaritan, 14 Cal.2d 791, 795 [97 P.2d 813]:

"The doctrine of the law of the case is recognized as a harsh one (2 Cal.Jur. 947) and the modern view is that it should not be adhered to when the application of it results in a manifestly unjust decision. (United Dredging Co. v. Industrial Acc. Com., 208Cal. 705 [284 P. 922].) However, it is generally followed in this state. But a court is not absolutely precluded by the law of the case from reconsidering questions decided upon a former appeal. Procedure and not jurisdiction is involved. Where there are exceptional circumstances, a court which is looking to a just determination of the rights of the parties to the litigation and not merely to rules of practice, may and should decide the case without regard to what has gone before. (Messenger v. Anderson, 225 U.S. 436 [32 S.Ct. 739, 56 L.Ed 1152]; Seagraves v. Wallace, 69 F.2d 163; McGovern v. Eckhart, 200 Wis. 64 [227 N.W. 300, 67 A.L.R. 1381].)"

Also in Gore v. Bingaman, 20 Cal.2d 118, 122, 123 [124 P.2d 17], it is said:

"It is true that the law of the case doctrine is a procedural rule which is generally followed, not because the court is without power to reconsider a former determination, but because the orderly processes of judicial procedure require an end to litigation. In the absence of exceptional circumstances of hardship and injustice the need for attributing finality to considered judicial determinations compels adherence to the previous decision. But the rule should never be made the instrument of injustice. Thus, where the controlling rules of law have been altered or clarified in the interval between the first and second appeal and adherence to the previous decision would result in defeating a just cause, it has been held that the court will not hesitate to reconsider its prior determination.

Particularly is the rule inapplicable where the decision lays down a principle of law for future guidance which is unsound.

Respondent cites cases to the contrary, and urges that there has been no change in the facts and no intervening decision justifying reconsideration. Also it urges that not justice but the determination of controversies is the primary consideration of policy behind the organization of courts, and that this litigation should be brought to an end by a refusal to reconsider the legal question determined in our former opinion. We are not impressed with this argument and believe that we should reexamine the question of law involved in our former opinion in light of the facts now before us and the subsequent decisions referred to hereinafter.” Standard Oil Co. v. Johnson, 56 Cal. App. 2d 411, 132 P.2d 910 (Ct. App. 1942)

 

“The law of the case doctrine is not a constitutional mandate nor a limitation on the power of a court.

“There are limited circumstances which may justify reconsideration of an issue which was [an] issue decided in a prior appeal: … (2) the prior ruling was clearly erroneous and would result in a manifest injustice if allowed to stand;” State v. Jefferson, 31 S.W.3d 558 – (Tenn. 2000)

 

“Depending on the nature of the case or issue and on the level or levels of the courts or courts involved, a court may have discretion to reopen a previously resolved question under one or more of the following circumstances:

(1) the first decision was clearly erroneous;

(2) an intervening change in the law has occurred;

(3) the evidence on remand is substantially different;

(4) other changed circumstances exist;

(5) a manifest injustice would otherwise result.”

Thomas v. Bible, 983 F.2d 152 (9th Cir. 1993)

 

“Courts have distilled various grounds for reconsideration of prior rulings into three major grounds for justifying reconsideration: (1) an intervening change in controlling law; (2) the availability of new evidence or an expanded factual record; and (3) need to correct a clear error or to prevent manifest injustice.”
Louen v. Twedt, 2007 WL 915226 (E.D. Cal. March 26, 2007)

“[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)

 

The new evidence of fraud that has surfaced constitutes fraud on the Court, corroborates and validates our concerns and claims opposing counsels are acting without authority in this matter, and establishes a prima facie case HSBC, Wells Fargo, and opposing counsels are attempting to defraud our family and this Court. When Crowley Fleck previously admitted their client in this matter is Wells Fargo, Kenneth Lay denied it. Yet, on February 4, 2020, Kenneth K. Lay appeared claiming the Plaintiff in this matter is actually Wells Fargo. A letter of instruction to the Lewis and Clark County Sheriff‘s Office from Hillary R. McCormack has stated this lawsuit is “Wells Fargo v. Nickerson.” Counsels have thus admitted to a scheme to concealing the identity of the Plaintiff and practicing deceit regarding HSBC’s and Wells Fargo’s true involvement. This denial prevented us from obtaining discovery critical to proving our complete and total innocence in the accusations brought against us. Had Wells Fargo not been allowed to lie about their role in this matter, a different outcome would have occurred and summary judgment in HSBC’s favor could not have occurred. These acts violate M.R.Civ.P. 17(a)(1) and this Court has the responsibility to uphold MCA § 37-61-402 and 406.

 

M.R.Civ.P. 17

(a) Real Party in Interest.

(1) Designation in General. An action must be prosecuted in the name of the real party in interest.

 

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.

 

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.

 

These acts and evidence require further litigation, and grant us right to act. Our defenses against this fraudulent foreclosure are meritorious and based on applicable law, un-rebutted evidence, and the rules of this Court. The foreclosure of this property has violated our constitutional, contractual, and statutory rights to due process, equal access to justice, ability to face our true accuser, and the ability to present defenses and claims. The evidence we have presented demonstrating fraud and prevention of performance has been un-rebutted by testimony or evidence.

Second, we are entitled to injunctive relief because the sale process violated MCA § 71-1-224. We have no misperception of notice requirements for the sale, only an incorrect timeline requirement, and Montana law requires a 30-day notice, not 21 days. We were not personally served thirty days before the sale set for January 29, 2020, or the postponed sale of February 12, 2020. The facts demonstrate we were not personally served at all in violation of Montana law. Further, the two affidavits of posting attached as exhibit A to the Plaintiff’s response brief do not establish compliance with MCA § 71-1-224. The statute requires the advertising of the sale to occur at least 30 days before the date fixed for the sale in a newspaper, and if there is no newspaper in the county for it to be posted in five conspicuous places including the property being sold. In addition, the second affidavit impeaches itself be claiming the Notice of Sheriff’s Sale Postponement dated January 29, 2020, was posted for at least 20 days. This is impossible as the sale was only postponed 14 days. These affidavits also claim compliance with MCA § 25-13-701(e) in error as there is no part “e” in this statute.

These violations of Montana law harmed us by failing to provide us with adequate notice of the sale to allow us to take the actions delineated in our Request for Emergency Injunction to Postpone Sale. Also according to First Nat’l Corp. v. Perrine, this sale was void and must be set aside, and according to Peterson v. Montana Bank of Bozeman, this is a Constitutional issue and we move the Court to set aside the sale.

 

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, in a newspaper in the county in which such real estate is situated, and in case there is no newspaper printed and published in said county, then by posting notices in at least five conspicuous places in said county, one of which notices must be posted on the land so advertised for sale. Two other notices must be posted in conspicuous places in the township in which said land is situated, one in such conspicuous place in said county as will be most likely to give notice to all persons interested in said sale, and one of said notices must be posted in a conspicuous place at the front door of the county courthouse of the county in which said land is located, and in addition to the publication or posting, 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 if within the state of Montana and upon every person or persons having or claiming an interest of record in the real estate so advertised for sale who may be found within the state of Montana. (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).

 

“In Mason, the Arizona court set aside an execution sale when it appeared the proper notice had not been given to the judgment debtor of the upcoming sheriff's sale…The situation here, in the interests of due process, required actual notice to Peterson. As the Arizona court said in Mason:

‘Whether notice was required to be given in spite of the statute is a matter of constitutional law. The U.S. Supreme Court has held that notice and opportunity to be heard are fundamental requisites of due process. Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The general rule that emerges from Mullane is that notice by publication is not enough with respect to a person whose name and address are known or very easily ascertainable and whose legally protected interests are directly affected by the proceedings in question. Under the circumstances here, we disagree with appellee that a right to notice is a `frivolous' claim. Appellants, as well as the Pekruls, by virtue of their respective interests in the property were directly affected by the proceedings and should have received actual notice.

(Citing authority.)’ 568 P.2d at 1155-1156.”

Peterson v. Montana Bank of Bozeman, NA, 687 P.2d 673, 212 Mont. 37 (1984)

 

According to the law and the Montana Supreme Court, this law is jurisdictional and not procedural. This is a Constitutional issue, and therefore the sale is void. We are and will be irreparably harmed if this sale is allowed to stand due to the violations of the statutory process, and the deceit and fraud of HSBC and/or Wells Fargo, and the opposing counsels. The only correct view that can be taken of this foreclosure proceeding is HSBC and Wells Fargo have manipulated the Court into transforming our testimony that Wells Fargo prevented our performance by refusing to allow us to make payments, into an admission we failed to make payments. This is unjust, and if this determination can stand, this Court will have effectually obliterated this lawful defense of a contractual breach for all Montanans.

The admissible evidence of payment history provided to this Court of affidavits of eyewitness testimony we attempted to make payments, a statement from a Wells Fargo banker we made the March 1, 2012 payment HSBC has alleged default on, a payment slip from a Wells Fargo teller confirming we attempted to make a payment, statements from other third parties that corroborate our heroic attempts to force Wells Fargo to comply with record requests, and other such evidence has not been rebutted. The only evidence of alleged default presented by HSBC in this matter is an unauthenticated, unsworn, and inadmissible account record allegedly from Wells Fargo Bank, N.A., and an unauthenticated, unsworn, and inadmissible alleged default letter from Wells Fargo Home Mortgage that indicates the lender is Wells Fargo Bank, N.A., not HSBC. Further, these alleged account records produced with Wells Fargo Bank, N.A. on them from 2007-2012, connected with the fact Wells Fargo Bank, N.A. is the lender under the alleged note and mortgage, provide corroboration the alleged assignments of record are illegal, fraudulent, forged, void. An invalid foreclosure or a foreclosure obtained through fraud on the Court causes severe and irreparable harm and injury, not only to the party foreclosed on, but on their community, their near and distant relations, local land values, and the integrity of the judiciary.

The potential of significant harm and injury present in all residential foreclosures, which by their nature deprive homeowners of their right to possess and occupy property, should compel this Court to scrutinize and carefully consider any banks claim of the right to foreclose, especially considering the billions of dollars in fines national banks have been forced to pay due to their illegal handling of loans and wrongful foreclosures. We did not force HSBC into court to foreclose. A mortgage requires judicial foreclosure in the state of Montana. HSBC and/or Wells Fargo failed to mitigate damages, failed to meet any conditions precedent, prevented our contractual right of performance, and intentionally created their own injury, in order to fraudulently and maliciously steal our ranch and punish us in a targeted attack for our faith and disfavored worldviews that promote freedom and justice for all. It is the duty and obligation of every property owner and citizen to defend their property from unlawful attack. If we had defaulted or been unable to make payments, as principled borrowers, we would have properly sold our property or given substantial enough equity to satisfy the loan to the bank. After working together for a lifetime to purchase and own our dream property that was ordained as our generational family ranch, carelessly allowing our home and the inheritance of our children to be stolen would betray our very persons and defined reasons for existence. Doing nothing to fight such unlawful, un-Constitutional, un-American, and un-Montanan acts, and negligently allowing a giant banking corporation known for illegal practices to steal our property, equity, and years of money tendered, would defy the duties and obligations of our American citizenship and render us financial fools and freedom preserving slackards. We properly moved the Court for a postponement of sale based on meritorious issues and valid legal claims. Fraud, deceit, and procedural manipulation by opposing counsels and the banks should move the integrity and passion for justice of the Court to provide all injunctive relief necessary to shield our innocent family from being unfairly and unjustly harmed, damaged, and injured.

Third, the principal balance of $986,708.31 in the Court’s final judgment has not been proven or established, has no basis in facts or admissible evidence, and the 10% interest on the judgment is in violation of MCA § 25-9-205(2).

 

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 difference between the current judgment and a judgment amount based on the principal balance alleged in the complaint of REDACTED and the contractual interest rate of 6.25% is over REDACTED. This large of a sum obviously prejudices our ability to seek alternative methods of satisfying the judgment amount. Per the Montana Supreme Court’s order on April 25, 2017, this Court acted outside its authority in issuing a final judgment in this matter on February 19, 2016, and therefore that judgment is void. The Montana Supreme Court affirmed the Court’s summary judgment order due to the Plaintiff’s successful prevention of the introduction of evidence, and we have since waited for the Plaintiff to request a new final judgment in order to address this issue. The sale that took place on February 12, 2020, was illegitimate as the final judgment referenced is void and unenforceable. We perceived the silence of the Plaintiff for almost three years as a just and rightful admission they had acknowledged their severe liability in this matter for their violations of state and federal lending, servicing, foreclosure, taxation, and trust agreements, laws, regulations, codes, and guidelines. Their silence implied they had ceased their attack on us and our ranch. Suddenly, unexpectedly, and without statutory notice, a sale was scheduled without our having adequate time to respond or secure our interests. No advocate in the law could be found who could or would at such short notice represent our interests in this matter. We were out of state and unable to overcome the obstacles caused by the unexpected and untimely sale.

Fourth, our meritorious reasons and the genuine concerns expressed in our Request for Emergency Injunction to Postpone Sale have been validated by the illegitimate sale.

1) There was only one bidder at the sale.

2) All three parcels of our property were sold at so low a price it shocks the conscience.

3) Nick Nickerson was unable to attend the sale or enjoin any attempt to satisfy the unlawful judgment due to the timing of the sale.

4) We were unable to secure funds to satisfy the unlawful judgment on such short notice, a situation any reasonable homeowner or investor would validate as legitimate and no fault of our own. This was compounded by the banks failing to calculate an owed amount per MCA § 25-13-301.

5) Our redemption period will now end in February. This month arguably produces the worst winter weather conditions for our mountainous area, and will threaten the lives of our livestock, make moving severely difficult if not impossible at this time of year, and create unnecessary risk and hazard to Montana highways, our family, helpers, and
highway travelers.

Further, Kenneth K. Lay, allegedly on behalf of HSBC, violated the Court’s order the Plaintiff could bid its judgment amount, and instead credit bid REDACTED as the aggregate total for all three parcels. Readily available public record demonstrates this is an obviously grossly inadequate sales price for 224 acres with a mile of MT Highway 200 road frontage and an around a million-dollar replacement cost log home, with outbuildings, landscaping, organic gardens, and other improvements on the property.

 

II. THE REQUESTED EMERGENCY INJUNCTION IS PROPER AS IT PREVENTS SUBSTANTIAL HARM TO ALL PARTIES AND NON-PARTIES.

We have established a probable need for injunctive relief under MCA § 27-19-201(4). The requested injunction will minimize damage to all parties and non-parties. HSBC cannot claim injury by a postponement of sale because they have waited almost 2 ½ years to proceed with execution, and wrongfully inflated their judgment amount by almost $300,000. HSBC has not established it has legitimate rights or even that the counsels of record are acting with authority. Allowing the foreclosure sale to stand will create severe tax penalties for HSBC under IRS Code 860, as the assignments of record violate trust law and agreements, and are prohibited by New York law. This will harm and injure HSBC. The opposing counsels must also demonstrate HSBC is the entity prosecuting this action and is accepting full responsibility for their actions and violations of law. The alleged assignments of record HSBC has relied upon to claim ownership have been challenged as being illegal, fraudulent, forged, and void. HSBC has not denied or re-butted these assertions, but merely claimed we are not a party to these assignments and therefore cannot challenge them. This argument must fail because the alleged assignments are void, and are the direct source of the cause of injury to us. The Court properly recognizing these assignments as void would have quashed this wrongful and fraudulent foreclosure action and ended this litigation five years ago. Controlling case law clearly establishes we have a right to challenge the assignments of record. Further, in addition to case law, common sense and the protection of the homeowner must be taken into consideration and acted upon.

 

“[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.)

A homeowner experiences prejudice or harm when an entity with no interest in the debt forecloses. When a non-debtholder forecloses, a homeowner is harmed because he or she has lost her home to an entity with no legal right to take it. If not for the void assignment, the incorrect entity would not have pursued a wrongful foreclosure. Therefore, the void assignment is the cause in fact of the homeowner's injury and all he or she is required to allege on the element of prejudice. The critical issue is not the plaintiff's ability to pay, but rather whether the defendant's conduct resulted in the plaintiff's harm; i.e., a foreclosure that was wrongful because it was initiated by a person or entity having no legal right to do so; i.e. holding void title. As the Supreme Court stated in Yvanova, ‘the bank or other entity that ordered the foreclosure would not have done so absent the allegedly void assignment. Thus `[t]he identified harm — the foreclosure — can be traced directly to [the foreclosing entity's] exercise of the authority purportedly delegated by the assignment’. (Yvanova, supra, 62 Cal.4th at p. 937.)

There are also strong policy reasons favoring this approach. A contrary rule would lead to a legally untenable situation — i.e., that anyone can foreclose on a homeowner because someone has the right to foreclose…(citation omitted) Moreover, giving homeowners - - who have the most at stake and the most to lose – the ability to challenge improper loan assignments as being absolutely void will provide a proper incentive to lending institutions to employ due diligence to properly document assignments and confirm who currently holds a loan. ‘The consequences of wrongfully evicting someone from their home are too severe to be left unchecked.’” (Ibid.)

“(Yvanova, supra, 62 Cal.4th at p. 929, fn. 4 ["Tender has been excused when ... the plaintiff alleges the foreclosure deed is facially void, as arguably is the case when the entity that initiated the sale lacked authority to do so."].)” Sciarratta v. US Bank National Assn., 202 Cal.Rptr.3d 219, 247 Cal. App. 4th 552 (Cal: Court of Appeal, 4th Appellate Dist., 1st Div. 2016)

 

Further, opposing counsels have created extreme doubt that HSBC is the real party in interest in this matter (see Brief in Support of Motion to Set Aside Judgment and Summary Judgment Order, and the Affidavit of Nick Nickerson in Support of Motions) and that fraud on the Court has been committed. Newly disclosed evidence of Wells Fargo’s true involvement changes the status quo of this entire litigation and annuls any laws of the case that may, could, or might have been established in the underlying judgment. In addition, HSBC has suffered no injury as the alleged trust agreements require the servicer Wells Fargo to make payments from their own funds in the case of a delinquency.

 

Advance Responsibility During Delinquency- Exhibit 10.1 Servicing Agreement- Section 12.4.1 - pg. 59

“In the event of a Delinquency with respect to a Mortgage Loan, the Servicer [Wells Fargo] agrees to advance from its own funds the full amount of Monthly Payments (which may be net of the related Servicing Fee) for such Mortgage Loan. These advances shall provide the Trustee with a regular flow of funds on such delinquent Mortgage Loan. The advance obligation stated above is in addition to any other advance obligations which the Servicer has pursuant to the provisions of this Agreement. The Servicer must still advance funds in accordance with the provisions of this Agreement even if a forbearance has been granted.”

 

In closing, we were loaned a sum of money by Wells Fargo on our property whose value far exceeds the loan or the current hyper-inflated judgment amount. Wells Fargo unquestionably and according to witness testimony refused to allow us to make our payments, and HSBC and/or Wells Fargo are literally stealing our home and ranch. Despite their prevention of performance, HSBC, Wells Fargo, and opposing counsel have manipulated this Court and abused these proceedings to fraudulently steal our hard earned life savings, tremendous equity, years of life and investment, all improvements made to the property, our substantial down payment and five years of very large monthly payments. Further, their actions have held our life and rightful ability to move forward hostage in an 8 yearlong battle to stop their racketeering and extortion scheme. This tramples the long standing American principle of meritocracy, and decries the Court’s duty to protect homeowners as equally as banks. We move this Court to consider and incorporate the widely publicized nationwide fraud perpetrated by banks against homeowners in making its decision.

 

“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. Therefore, under those circumstances, the void assignment is the proximate cause of actual injury and all that is required to be alleged to satisfy the element of prejudice or harm in a wrongful foreclosure cause of action. The opposite rule, urged by defendants in this case, would allow an entity to foreclose with impunity on homes that were worth less than the amount of the debt, even if therewere no legal justification whatsoever for the foreclosure. 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).)

 

“On the issue of standing, the Supreme Court stated, "`[B]anks are neither private attorneys general nor bounty hunters, armed with a roving commission to seek out defaulting homeowners and take away their homes in satisfaction of some other bank's deed of trust.'” Sciarratta, Id.

 

This injunction should be granted as our request is supported by MCA § 27-19-201(4). Further, reversing the sale and granting an injunction will prevent irreparable harm to all parties and non-parties.

CONCLUSION

This is our home. We want to keep it. We have and have always had the wherewithal to keep it. We made our payments. We have sought relief lawfully and within the confines of protections and safeguards granted and guaranteed to us. We have committed no act or inaction to warrant, justify, or allow our home, ranch, and wealth to be taken from us.

Therefore, in the interests of justice, for the reasons listed in this reply brief, our Request for Emergency Injunction to Postpone Sale, our Motion to Set Aside Judgment and Summary Judgment Order, and Brief in Support of Motion to Set Aside Judgment and Summary Judgment Order; Motion for Leave to Amend Answer, Counterclaim, Third Party Complaint, and Demand For a Jury Trial, and Brief in Support of Motion for Leave to Amend Answer, Counterclaim, Third Party Complaint, and Demand For a Jury Trial, and the Affidavit of Nick Nickerson in Support of Motions, and to right wrongs needlessly suffered by and cruelly inflicted upon our family, we move this Court to grant our Request for Emergency Injunction to Postpone Sale.


Oral argument is requested.




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