Response In Opposition To Motion To Quash

COMES NOW, Defendants, Nick and Donna Nickerson, request this Court protect their right to discovery and deny HSBC’s Motion to Quash. HSBC’s motion is untimely and its claim of undue burden is unsubstantiated and unfounded. In addition, HSBC’s claim the subpoena exceeds the limitations of the remand order is broad and vague, and HSBC’s statements regarding discovery, summary judgment and prejudice are false and misleading. Therefore, HSBC’s motion to quash must be denied.

We respond to HSBC’s motion to quash as follows:

STATEMENT OF FACTS

Contrary to the assertions of HSBC and the presumed belief of this Court, we have conducted discovery from the very beginning of this action and continuing even now.

The moment this case began in April 2013 we initiated discovery. We immediately contacted HSBC in an effort to discover who they were and what involvement they had with our loan because HSBC never notified us after the alleged assignment in 2010 or the alleged assignment in 2012 that they were our new creditor as required by federal law (15 U.S.C. 1641(g) – Notice of New Creditor). 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. During this time we continued to perform informal discovery because that was our only option. As a result of that discovery it became obvious HSBC did not have standing to pursue this complaint, and that fraud was present in our loan documents, in the alleged assignments and in HSBC’s complaint. According to our legal research, it appeared we were supposed to file for summary judgment regarding standing, before filing anything else, which we did, and at the same time prepare our amended pleadings reflecting the results of our discovery efforts and submit them in accordance with the schedule. Our discovery efforts resulted in 24 affirmative defenses and 11 causes of action.

HSBC filed a cross brief without a motion for summary judgment without performing any discovery. Then,  without proper notice to prepare, oral argument on summary judgment was conducted. During oral argument, we detailed the prevention of performance of Wells Fargo, and in rebuttal to HSBC’s claim that no one from Wells Fargo provided anything to corroborate our testimony, we provided evidence from Wells Fargo’s employees that stated we tried to make our payments. A motion for intervention was made and denied. Even with our testimony and the evidence demonstrating Wells Fargo’s prevention of performance, this Court still granted summary judgment to HSBC. The entire summary judgment process consumed over a year of time.

In accordance with the rules, we appealed the summary judgment and ultimately the Montana Supreme Court issued a remand to allow us to provide additional evidence and testimony regarding Wells Fargo’s prevention of performance. The appeal process consumed over 11 months. Throughout this time period, we continued to research what could be done and to discover a way to compel Wells Fargo to provide our records. These efforts led us back to the Montana State Auditors office and Jesse Laslovich in January 2016. At that time he and his team agreed to review the case and ultimately told us it was his opinion Wells Fargo could make this right. Jesse told us Wells Fargo employee Ron Long would contact us to address our concerns and make it right. However, despite repeated contact attempts throughout the following months, Ron Long did not contact us. Wells Fargo was apparently stalling in an attempt to delay justice and to let the appeal and remand timelines expire. However, Wells Fargo did not know of our relationship with some of their employees who had personally been involved with trying to force Wells Fargo to take our payments and personally experienced Wells Fargo’s intentional prevention of performance. Wells Fargo was also unaware of the fact we had been in contact with one of their former employees, Heather Hummel, who has provided testimony on our behalf.

In accordance with the Montana Supreme Court’s remand, we were in contact with and later traveled to meet with two of the Wells Fargo Home Mortgage employees who tried to help us back in 2012 to obtain written testimony regarding what happened when they personally attempted to process our payments. Their firsthand testimony substantiates our claims of prevention of performance even though Wells Fargo has failed to comply with production requests. Both of these employees remembered the situation and were willing to provide a verified written statement, but they wanted to make sure Wells Fargo would not fire them for helping us by providing a written statement. A request to provide a statement was sent via email to Wells Fargo’s Executive Office. Kobe Alic of Wells Fargo’s Executive Office finally responded to this request on September 21, 2016. Wells Fargo refused to allow their employees to provide the written statements. Since Wells Fargo refused to allow their employees to provide the requested statements, we were forced to request more time for discovery and to take further steps to compel them to produce this discovery.

We have produced Wells Fargo employees that can and are willing to provide testimony. In fact, these witnesses have already provided testimony of the true facts that occurred, to us and other third parties, but Wells Fargo has refused to allow their testimonies to be presented to the Court. Wells Fargo’s records provide additional witness testimony, but Wells Fargo has failed to respond to our requests for those records so we can secure the notations and contact information. To offset this obstruction of discovery, we produced affidavit testimony that validates the communications with these employees occurred. Wells Fargo refused our payments and prevented our performance without cause or right and in violation of their settlement agreement with Montana and Montana law. The fact this has occurred has been firmly established. We were prevented from performance and genuine material facts prove this. HSBC has not denied Wells Fargo prevented our performance. Rather, HSBC’s counsel during the summary judgment hearing indicated we needed to produce witnesses from Wells Fargo that could attest to the fact we attempted to pay them and we immediately did so. Now, we have produced additional witnesses who corroborate our claims but HSBC and Wells Fargo will not allow them to simply provide a written verified statement. Additional witnesses and evidence corroborates our claims, but Wells Fargo has prevented our access to these employees and records. Therefore, Wells Fargo���s refusal to provide the requested discovery is the only reason we were forced to request more time and forced to issue this subpoena at this time. Our research indicated all other attempts to gain information at our disposal had to be completed prior to filing a subpoena.

On September 30, 2016, we filed a Second Motion for Extension of Time in which we detailed what had occurred with Wells Fargo and why we needed more time.

On October 5, 2016, the Montana Supreme Court denied our extension of time without prejudice referring the matter to a determination to be made by this Court. No order from this Court came.

Since this Court was silent and we desired no further discovery delays, we filed a motion for extension of time with this Court and simultaneously served a subpoena for production upon Wells Fargo.

The due date for the subpoena information to be provided to us was November 21, 2016. All requested information is clearly relevant to our defense and claims of prevention of performance.

On November 21, 2016, HSBC filed a motion to quash.

ARGUMENT

A. Motion is untimely.

M.R.Civ.P. 45(d)(3)(A) states that a motion to quash must be filed timely.

HSBC filed their motion to quash on November 21, 2016, the same day the subpoena was due. This was 31 days after being served. Filing a motion to quash on the day the subpoena required production be produced and 31 days after the date of service does not constitute a timely motion. This has created undue prejudice for us in meeting the remand requirements. Further, according to Rule 45(d)(2)(B) the recipient of the subpoena only had 14 days after being served to object. “The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served.” Therefore, because HSBC waited until the day required for production which was 31 days after being served, the motion to quash is untimely and according to the law, it must be denied.

“Under Rule 45(c)(2)(B) [same content as M.R.Civ.P. 45(d)(2)(B)], CDCR and CCI were required to serve their objections either (a) before the time specified for compliance…or (b) 14 days after the subpoena was served… whichever was earlier…(citations omitted) Here the objections should have been served on Plaintiff within fourteen days…and they were not. Accordingly, the Court finds that the objections were untimely.

The failure to timely object usually waives objections, although courts have recognized an exception where the responding party establishes unusual circumstances and good cause for the failure. (citations omitted) In this case there has been no showing of unusual circumstance or good cause, and the court finds the objections have been waived.” Avila v. Cate, No. 1:09-cv-00918-LIO-SKD PC (E.D. Cal. 2013)

According to Rule 45(d)(2)(B), HSBC’s motion is untimely and HSBC has made no showing of unusual circumstance or good cause for their late response. Therefore, they have waived any objections and their motion to quash must be denied.

B. HSBC’s claim of undue burden is unsubstantiated and unfounded.

HSBC moved to quash under M.R.Civ.P. 45(d)(3)(A)(iv) claiming undue burden. Black’s Law Dictionary (10^th edition) defines undue burden as “A substantial and unjust obstacle to performance of a duty or enjoyment of a right.”

HSBC was not subpoenaed, and thus, it is not HSBC’s duty to respond. “A motion to quash ordinarily ‘should be made by the person from whom the documents…are requested,’ and parties lack standing to challenge a subpoena issued to nonparties unless they claim a personal right or privilege in the material. 9A CHARLES A. WRIGHT & ARTHUR MILLER, FED. PRACTICE AND PROCEDURE § 2463:1, see also…(collecting cases).” Webster v. NORTHWEST CANCER SPECIALISTS, P.C., No. 3:11-cv-01543-MO. (D. Oregon, 2012). Therefore, HSBC has no foundation or standing to claim undue burden. In addition, HSBC’s counsel is not representing Wells Fargo in this matter and has no foundation to claim Wells Fargo is being unduly burdened by this request. Further, there is no substance to HSBC’s request. HSBC has attempted to shift the burden to us to demonstrate why the subpoenaed records are necessary but they bear the burden of persuasion. “The party moving to quash a subpoena bears the burden of persuasion. Green v. Baca 225 F.R.D. 624, 853 (C.D. Cal 2005)” Id. HSBC provides no reason, substantiated or otherwise, why the subpoena creates an undue burden. Therefore, since HSBC failed to demonstrate how the subpoena creates undue burden, its motion must also fail. In addition, Wells Fargo did not object to the subpoena as causing undue burden and no undue burden can exist because the information and records being sought in the subpoena are required by the federal servicing rules and laws to be kept in the normal course of business and are required to be provided to the customer upon request. See Exhibit 1 - RESPA (Regulation X) as found at 12 CFR §§ 1024.36 and 1024.38(c)(2).
Therefore, HSBC ’s motion to quash must be denied because there is no foundation, basis or standing for it, nor has HSBC provided any reasoning or argument for why it creates an undue burden upon them. As the sections of RESPA referenced above demonstrate, Wells Fargo cannot lawfully object to the requested production because they know and have known federal law requires them to produce the information upon request. In addition, on November 21, 2016, Wells Fargo admitted they needed to comply with the subpoena and agreed to immediately provide this information to us. HSBC has been quick to claim Wells Fargo is not a party to this suit to prevent us from presenting our defenses and claims. HSBC must now let Wells Fargo answer for their responsibility regarding the subpoena. We have the right to our records per federal and Montana law, and we have the right to protect our property and defend against our accusers as citizens of Montana and the United States of America.

C. HSBC’s claim the subpoena exceeds the limitations of the remand order is broad and vague

HSBC makes a general claim the request for production and information exceeds the information we are allowed to request pursuant to the remand order. However, this claim is broad and vague. HSBC failed to identify which requests exceed the limitation, and we contend all information sought falls within the scope of the remand order because it all either demonstrates Wells Fargo rejected our payments and prevented our performance, or supports the argument of why it was wrong for Wells Fargo to reject our payments. One reason it was wrong to reject our payments is because by so doing Wells Fargo violated their settlement agreement with Montana. Wells Fargo refused to work with us in any way to cure the alleged default and save our family ranch. Wells Fargo failed to appoint a single point of contact (SPOC) to help us resolve the alleged default situation despite our pleading for them to do so.

“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/

Servicing reforms are a requirement of the settlement agreement and are intended to implement “real reforms in the mortgage servicing industry to end sloppy and fraudulent business practices… and provide new standards for communicating with borrowers and other loss mitigation activities.” Center for Responsible Lending – Summary of National Mortgage Settlement 3-12-12.pdf § I. Servicing Reforms. One of the key servicing provisions that has been violated in this case is:

 

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). Id.

Included in the servicing reforms is a requirement that in the event of a delinquency the servicer must appoint a single point of contact (SPOC) to help walk the homeowner through the process and communicate the options available to the homeowner. Wells Fargo failed to appoint a SPOC despite repeated requests.

Throughout this ordeal, the Nickersons repeatedly requested begged, entreated and pled to speak to a single point of contact with the authority necessary to resolve this situation so they could help them save their home. Nothing. Wells Fargo would not and did not contact us. Wells Fargo would not and did not accept payments. Wells Fargo would not and failed to answer any questions. What Wells Fargo did do was lock our account down while they created a default and executed their premeditated plan to force a foreclosure.” Response in Opposition to Plaintiff’s Motion for Summary Judgment, p. 16, L. 17-22

Wells Fargo’s failure, or perhaps more accurately, their refusal to appoint a SPOC prevented our performance, prejudiced our ability to secure a resolution, and violated agreements set forth to protect us from Wells Fargo’s “fraudulent business practices.” It also prejudices us now by preventing us access to a SPOC we could present to this Court to corroborate our claims.

In addition, Wells Fargo violated Montana law by rejecting our payments.

MCA § 32-9-170. Mortgage Servicer Duties. “In addition to any duties imposed by federal law or regulations or the common law, a mortgage servicer shall: …(7) in the event of any delinquency or other act of default on the part of the borrower, act in good faith to inform the borrower of the facts concerning the loan and the nature and extent of the delinquency or default and, if the borrower replies, negotiate with the borrower, subject to the mortgage servicer’s duties and obligations under the mortgage servicing contract, if any, to attempt a resolution or workout pertaining to the delinquency or default.”

 

“At no time in 2012 with regards to our mortgage did Wells Fargo adhere to the Servicing Objectives or Servicer Discretion requirements detailed in their Servicing Agreement with HSBC that required Wells Fargo to “ vary its collection techniques to fit individual circumstances, avoiding a fixed collection pattern which may be ineffective in dealing with particular Borrowers,” and “to extend appropriate relief to Borrowers who encounter hardship and who are cooperative and demonstrate proper regard for their obligations.” We made every attempt we could to get Wells Fargo to be responsive and accept our payments including fees, but Wells Fargo’s response was consistently, no we won’t take your money, and then later it was no we have already put you into foreclosure so we can’t take your money or work with you in any way because the property is in foreclosure and the trust your note is in disqualifies you from any help whatsoever. Wells Fargo made no attempt to avoid a fixed collection pattern and made no attempt to extend any relief to us, and thus, Wells Fargo violated Montana law.” Affidavit of Nick Nickerson in Support of Motion of Extension of Time to Complete Discovery, ¶18.

Also see Exhibit 2 – Mortgage Servicer Duties Referenced in Amended Answer and Counterclaim.

Below is the list of records required by the subpoena to be produced with an explanation of how they are necessary to adhere to the discovery required by the remand. We have declared a need for these records from the beginning of this action. These records are relevant and necessary to our defenses and claims. One issue related to the remand that the subpoenaed records will demonstrate is the fact that starting back when our April 2012 payment was first refused, we consistently and persistently attempted to establish a single point of contact within Wells Fargo that could resolve this situation. These records will also corroborate all facts and claims regarding prevention of performance made by us.

· Communication records – Demonstrates and corroborates comprehensive prevention of performance. Quantifies the severity and maliciousness of prevention of performance experienced. Shows Wells Fargo made a mockery of their agreement with the Montana Attorney General’s office in dealing with us and our account and how this allowed them to prevent our performance.

· Account notations – Documents contacts with Wells Fargo. Identifies employees involved in communications. Corroborates testimony we attempted to make payments. Demonstrates Wells Fargo rejected our payments and why it was wrong to reject our payments.  Provides a basis for why it was wrong for Wells Fargo to prevent our performance. Further, account notations will demonstrate we informed Wells Fargo we wanted to keep our home, had the wherewithal to keep our home, and were going to fight to keep our home. Documents notification we would request these notations along with all our other records at a later date was also entered as account notations on repeated occasions. Shows extent of harassment we suffered trying to fulfill our obligations. Shows Wells Fargo made a mockery of their agreement with the Montana Attorney General’s office in dealing with us and our account and how this allowed them to prevent our performance.

· Written and verbal correspondence – Provides documentation of the communications between us and Wells Fargo. Identifies employees involved in the communications. Demonstrates why it was wrong for Wells Fargo to reject our payments. Establishes how refusing to provide records of changes and notations to our account prevented us from performance. Shows Wells Fargo made a mockery of their agreement with the Montana Attorney General’s office in dealing with us and our account and how this allowed them to prevent our performance.

· Recordings of conversations – Validates our claims of prevention of performance and why it was wrong to prevent performance. Provides authenticity and accountability to the other records being provided to make sure complete, accurate and unedited records are provided. Recordings will prove we requested the conversations be taped, had representatives read their notations back to us, exercised extreme efforts to create a documentation trail that would protect us from Wells Fargo stealing our home. Will also provide employee comments concurring with our assessment that Wells Fargo was wrong in preventing our performance. Indisputably proves abusive debt collection practices suffered. Provides proof of predatory lending, abusive debt collection, mortgage fraud and how these were used to prevent our performance. Necessary to protect authenticity of records provided since Wells Fargo has failed to comply with record requests in a timely manner and opportunity to alter records has existed.

· Any and all internal emails, notes or other communications of Wells Fargo employees, contractors, representatives or agents regarding these accounts – Demonstrates our proper regard for our obligations to Wells Fargo which supports why it was wrong for Wells Fargo to reject our payments. Critical to establishing Wells Fargo knew they were preventing performance and continued to do so anyway.

· Any internal or external requests for research or other account inquiries and the results of those requests including any changes or corrections made to the account for any reason whatsoever – Demonstrates Wells Fargo intentionally locked down our account to prevent performance without cause or right and identifies employees who challenged those actions. Validates attempts to facilitate resolution.

· Documentation as to why local branch access to accept payments on the accounts was terminated and who made the decision to deny local branch access to accept payments on the accounts – Demonstrates Wells Fargo intentionally locked down our account to prevent our performance and identifies who made the determination to lock the account down. Provides motive for this foreclosure action. Supports argument why preventing our performance was wrong.

· Documentation as to who decided to refuse the Nickersons’ payments and prevent the Nickersons’ performance and what date(s) this decision was made – Demonstrates Wells Fargo intentionally locked down our account to prevent our performance and identifies who made the determination to lock the account down. Provides motive for this foreclosure action. Supports argument why preventing our performance was wrong.

· Details of any and all inquiries and requests for research from Wells Fargo employees, representatives, contractors or agents regarding their rejected attempts to process the Nickersons’ payments – Documents when and where we attempted to make our payments. Identifies employees with firsthand knowledge of prevention of performance suffered. Demonstrates maliciousness of prevention of performance.

·Any and all other documents, correspondence, communications internal or external, file transfers and reporting associated with these accounts – Details we were prevented from performance and why it was wrong to prevent our performance and reject our payments. Identifies employees who were forced or instructed to refuse payments.

· Comprehensive results and conclusions of the independent review processes that determined the Nickersons were due compensation for the wrongdoings of Wells Fargo regarding these accounts – Provides evidence for why it was wrong for Wells Fargo to reject our payments and provides testimony from a third party that Wells Fargo’s handling of our account was wrong. This evidence can support prevention of performance occurred and legitimizes the fact it was wrong for Wells Fargo to prevent our performance.

·Proof of authority for the attorney Wells Fargo chooses to represent them in this matter and proof of authority and the dates that authority was provided for any attorney(s) regarding these accounts – Ensures there is no deception on the part of counsel during this subpoena process that is obstructing us from complying with the remand order or that has obstructed us from meeting discovery requirements during this litigation as a whole. Allows us to secure assistance from agencies created and funded to protect us from the fraudulent business practices of HSBC and Wells Fargo.

·Original loan documents – Provides the contractual reason for why it was wrong to prevent performance and the foundation for them to prevent our performance. The failure or inability to provide the original loan documents provides motive for refusing to work with us and for rejecting our payments.

· Proof of ownership of loan, note and mortgage and dates of any transfers of ownership or servicing - to establish Wells Fargo’s authority to accept payments or establish reasons why Wells Fargo refused payments. The need to fix their records provides motive for prevention of performance.

· Current access status of loan in Wells Fargo’s system, detail any changes to access that have occurred and when those changes occurred since March 2012 – Proves Wells Fargo locked down the account and would not let us pay them.

· Dates, times and names of all bankers, tellers, Wells Fargo employees, contractors or agents who accessed or attempted to access the accounts – Identifies additional witnesses who can attest to Wells Fargo’s prevention of performance and shows the heroic efforts we pursued to work with Wells Fargo to resolve this issue. Also, shows the enormity of time we spent dealing with this and validates the unnecessary burdens and hardships intentionally inflicted upon us. Also demonstrates harassment by Wells Fargo and proves no legitimate collection attempts were made.

· All correspondence, written and verbal, between Wells Fargo and government agencies, consumer advocates and state employees or representatives regarding these accounts – Demonstrates why it was wrong to prevent performance and shows what lengths we went to trying to force Wells Fargo to take our payments and work with us to save our home.

· All correspondence between HSBC and Wells Fargo regarding these accounts – Provides records regarding the actual relationship between HSBC and Wells Fargo and demonstrates Wells Fargo did not have the authority to reject our payments and demonstrates why it was wrong for them to reject our payments.

Therefore, as detailed above, all records are required and relevant to demonstrate we showed proper regard for our obligations, we attempted to pay Wells Fargo, and we exhausted every effort to work with Wells Fargo to resolve the alleged default back in 2012. The records will also be used to show Wells Fargo did not vary its’ collection techniques or make any attempts to work with us to resolve this situation. Further, the records will validate why it was wrong for Wells Fargo to reject our payments, why it was wrong for Wells Fargo to refuse to provide these records prior to now, and why it is wrong for HSBC to be allowed to pursue this foreclosure without being required to produce or to be forced to require their alleged Servicer to produce these records. Further, the remand limits discovery and argument to deal with prevention of performance, but federal regulations and our established business relationship with Wells Fargo guarantees us the right of complete access to our records. These records must be provided to us in their entirety without Wells Fargo being allowed to purge any incriminating evidence. We have the right and need to review all the existing records for ourselves and determine what can and should be presented to the Court. Our ranch is being wrongfully foreclosed upon. Wells Fargo is the mandated record keeper in our dealings with them so Wells Fargo cannot lawfully or ethically deny us access to our account records. Additionally, as stated previously, Wells Fargo was clearly notified by us and their employees of our intent to request these records be produced at the time they were created. The subpoenaed records will confirm all testimony we have provided throughout this litigation.

D. HSBC’s statements are false and misleading

HSBC’s alleged counsel claims the subpoena should be quashed because we conducted no discovery, because it was allegedly issued after the deadlines set by the remand, because we stated there were no issues of material fact when we filed for summary judgment based on standing, and because HSBC will suffer prejudice.

1. Wells Fargo prevented compliance with the remand.

First and foremost, this Court must realize and recognize, this subpoena for production would not have been required at this time had Wells Fargo simply provided records repeatedly requested or allowed their employees to provide written statements regarding their interactions with us and the failure of Wells Fargo to accept our payments – period! The remand instructed us to provide sworn and verified evidence. We have complied with the Montana Supreme Court’s remand to the extent HSBC and Wells Fargo have allowed us to comply and have been diligent in attempting to obtain discovery in every way we could. We obtained an affidavit from former Wells Fargo employee, Heather Hummel, to support our argument as to why it was wrong for Wells Fargo to reject our payments. Heather Hummel’s affidavit states in part,

“During my 17 plus years with the Bank I never encountered a more honest, hardworking, committed and passionate individual as Donna Nickerson. I could always count on Donna to keep whatever arrangements she had made with me…Mrs. Nickerson never asked the Bank to take her word on something – she provided proof. She is organized, resourceful, thoughtful and most importantly a mother trying to raise her family on the ranch they have worked so hard for. I believe Donna Nickerson to be an exemplary human being.” Sworn and verified statements of Heather Hummel

Further, in our efforts to comply with the remand order and to provide more proof of Wells Fargo’s prevention of performance and as detailed above, we attempted to secure verified statements from witnesses we had contact information for. Wells Fargo has failed to provide notations, account records, and contact information so we could reach out to employees we worked with in various branches around the country so we attempted to secure verified statements from two Wells Fargo employees, Teresa Koepke and Jody Lauzon, whose whereabouts were known to us. Teresa and Jody have firsthand knowledge of Wells Fargo’s rejection of our payment attempts and their testimonies would undoubtedly prove Wells Fargo prevented our performance. However, Wells Fargo would not permit Teresa and Jody to provide written verified statements, and thus, Wells Fargo forced this subpoena upon itself because Wells Fargo’s records, if unaltered, will condemn them. It is Wells Fargo who is not in compliance with the Montana Supreme Court’s remand, not us. It is far more prejudicial toward us to allow Wells Fargo to continue to conceal and withhold evidence and obstruct justice than any alleged prejudice to HSBC. The undisputed facts remain HSBC never sought discovery regarding any alleged default and HSBC has not provided any evidence or testimony to refute our testimony regarding prevention of performance. In fact, HSBC has not provided any admissible or lawful evidence at all. Nothing submitted by HSBC has been sworn to or verified by HSBC and HSBC did not even sign its’ 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).

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

However, based on lack of foundation, the Nickersons request the court to take note that all of the Plaintiffs exhibits included in their reply and cross-motion must be stricken because they have not been verified or authenticated by the personal knowledge of the Plaintiff or one of the Plaintiff’s employees. Requiring the Plaintiff to show foundation and standing of evidence is necessary in order to protect the Nickersons and the world at large from this or other wrongful foreclosure actions and to allow this suit to be defended effectively. Any person could travel to the Lewis and Clark county courthouse and retrieve a copy of the loan documents on file. Any person could fabricate a loan history to show a default. In order to substantiate HSBC’s alleged default and create an accurate history of the true and correct transactions between the Nickersons and the loan servicer, an accurate loan history must be presented into evidence. This loan history must be provided, validated, authenticated, and verified by an authorized representative who has the access, ability, and personal knowledge of the Nickersons’ account to validate its foundation, reliability and relevancy, and to defend the inconsistencies the Nickersons intend to demonstrate to the Court.
…
Despite their objections and attempts to circumvent safety nets put into place to protect innocent and trusting homeowners such as the Nickersons, the Plaintiff must present someone in authority to validate the Complaint, claim and show legal and physical possession of the note, verify when that possession took place, confirm that possession is still in place, establish irrefutable proof of default, show how the alleged default has created a loss for them, in order for their complaint to pass the standing threshold. Reply Brief in Support of Defendant’s Motion for Summary Judgment – p. 2, L 1-15; p. 11, L 18-23.

The Nickersons are not certain what other English or Latin words they can or should as pro se litigants use to adequately construe their dispute that they do not believe nor has any evidence been presented that the Plaintiff holds, has ownership or is in possession of the original Note and Mortgage, any beneficial interest in their property, or that the Nickersons are obligated in any way to the Plaintiff for a Note and Mortgage both now or forever on this property. In order to be subject to the terms and conditions of any Note and Mortgage, the Nickersons and their experts must, and as a matter of law and the Montana rules of evidence, have the right, to see and examine the original Note and Mortgage used to support Plaintiff’s claims in order for them to verify its authenticity or be subjected to its terms.
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HSBC has submitted no evidence of default. Exhibit E attached to HSBC’s response/cross-motion has not been validated or verified by either HSBC or Wells Fargo and HSBC’s counsel lacks foundation to present this as evidence or to represent it as a true or valid account history or proof of default and therefore, this evidence is not permissible. M.R.E. 803(6) Requires records kept in the normal course of business “to be shown by the custodian or other qualified witness” otherwise it is just hearsay.  Response to Plaintiff’s Motion for Summary Judgment – p. 14, L 8-13.

The fact is HSBC and this Court have manipulated our testimony to rule against us and claim we admit we have not made any payments since March 2012 when our only admission is and the record clearly demonstrates that Wells Fargo has prevented us from making our payments since April 2012.

The Nickersons contend this complaint misrepresents and misconstrues the true and actual transactions regarding the giving and receiving of payments and the Nickersons challenge the existence of any default caused by the Nickersons. The Nickersons allege any default in existence was and is caused by the servicer refusing to accept regular periodic payments, refusing to allow the Nickersons to cure any default caused by the actions of the servicer, and refusing to work with the Nickersons in good faith to protect their interests in their home and this property. Reply Brief in Support of Defendant’s Motion for Summary Judgment – p. 2, L 24 – p. 3, L 5.

[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 or not we admit we stopped making, or whether she stopped – Wells Fargo stopped accepting them. Transcript, p. 62:14-20.

II. The Court abused its discretion in its findings of fact regarding default

Regarding default, this Court states: a) “Nickersons admitted during oral argument that they have not made a loan payment since 2012”…

During oral argument the Nickersons stated that Wells Fargo has prevented them from making any payments since 2012. The Nickersons in no way implied, expressed or otherwise inferred that they ever stopped making payments. On the contrary, the Nickersons testified that they made every possible attempt and sacrifice that could have been expected of them to make their payments and also expressed their intense desire to continue making their payments but they were prevented, blocked and otherwise barred from making payments by Wells Fargo. This Court is choosing to interpret this argument in favor of HSBC by freely accepting that payments have not been made and ignoring the fact Wells Fargo prevented the payments from being made which goes against this Court’s own summary judgment standard. “When presented with cross-motions for summary judgment, the Court must evaluate each on its own merits, ‘taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.’ Hajenga v. Schwein, 2007 MT 80, ¶ 18, 336 Mont. 507, 155 P.3d 1241 (quoting Ike v. Jefferson Nat. Life Ins. Co., 267 Mont. 396, 399-400, 884 P.2d 471, 474 (1994)).” The summary judgment standard cited by the Court requires the Court “draw all reasonable inferences against” HSBC in this instance. Clearly, as evidenced in this Court’s decision, the Court has done just the opposite in this case, and thus, abused its discretion by violating its own standard.

Furthermore, the facts regarding Wells Fargo’s prevention of performance were discussed in great detail in oral argument and when questioned by the Court, HSBC’s alleged counsel admitted Wells Fargo’s prevention of performance created genuine issues of material fact regarding default. The Nickersons wonder how this Court could interpret their oral argument stating Wells Fargo prevented their payments as acceptable evidence for non-payment to cite against them in a ruling but it is not acceptable evidence to demonstrate the current default is a result of the prevention of performance actions of Wells Fargo. In addition to the facts presented during oral argument, Nick Nickerson testified via affidavit regarding Wells Fargo’s prevention of performance actions. (See Affidavit of Nick Nickerson in Support of Objection to Orders, ¶ 17). It is important to note that HSBC presented no opposing affidavits, testimony or oral argument regarding this issue. These genuine issues of material fact regarding default have not been refuted or challenged by HSBC but, in fact, were admitted to by HSBC during oral argument and, according to this Court’s own summary judgment standard, requires summary judgment in favor of HSBC to be denied. Therefore, it was an abuse of discretion to grant summary judgment when the opposing party admitted there are genuine issues of material fact and the Court’s own summary judgment standard required summary judgment be denied. Brief in Support of Motion for New Trial and Motion to Alter or Amend Findings of Fact, Conclusions of Law and Judgment – p. 10, L. 31 – p. 12, L. 5.

It is obvious it is HSBC’s intention to keep this truth and evidence of this truth from coming out. HSBC should not be allowed to quash this subpoena because such a ruling empowers HSBC to obstruct justice and conceals criminal activity by HSBC and Wells Fargo including but not limited to mortgage fraud, abusive debt collection, and predatory lending practices.

2. The Nickersons have suffered prejudice – not HSBC.

HSBC’s claims for prejudice are far outweighed by the true prejudice we have suffered. Black’s Law Dictionary (10^th Edition) defines prejudice as, “Damage or detriment to one’s legal rights or claims.” We have been prejudiced since the outset of the case when HSBC stated they had nothing to do with this foreclosure and all concerns should be addressed to Wells Fargo for resolution. We are prejudiced by HSBC’s counsel’s refusal to provide proof of authority and her intentional deceit in regards to who her real client is.

HSBC denied their involvement and the letters provided are what the Nickersons were given to document their inquiry. If the Plaintiff has the authority to bring this complaint, then the Nickersons request proof to show it. As a matter of law the Nickersons have the right to know who is bringing suit against them. The Nickersons have uncovered and experienced so much deception and misrepresentation in the handling of their loan and the documents surrounding their property that they are understandably leery of this obsessively pursued, and to them, unlawful foreclosure action. Further, Routh, Crabtree and Olson (RCO) have yet to prove they have been retained by HSBC to conduct this lawsuit. Though the Nickersons and the Court would normally assume this to be an obvious conclusion, research on RCO’s involvement and alleged unlawful actions in other foreclosure actions has created real and substantiated fear for the Nickersons. Therefore, we fervently request the Court to require Plaintiff’s counsel to provide proof from an officer of HSBC who has the authority to contradict Christina Johnson and that can confirm HSBC indeed intends and has the right and sole right and authority to be the party foreclosing in this complaint. The only proof this Court has been presented with that HSBC is suing us is from an unsupported and unsworn statement from a law firm that from our research has shown allegedly utilizes questionable legal strategies. Defending this suit is not only physically, emotionally and mentally draining but it is distracting us from being able to invest the time needed to secure a resolution with Wells Fargo and save our home. If this is not a valid complaint, it must be dismissed immediately. Reply Brief in Support of Defendant’s Motion for Summary Judgment – p. 10, L 3-21.

We are prejudiced by HSBC’s false claims we have not conducted any discovery. We conducted extensive discovery and were prejudiced when this Court denied our amended answers and counterclaims that detailed the results of our discovery efforts at that time. Discovery efforts which consumed over 600 hours of our time to research, compile and present. We were prejudiced by the Court when it refused to recognize the evidence and testimony presented during oral argument that demonstrates and documents a genuine issue of material fact regarding the alleged default that was a result of the prevention of performance we suffered at the hands of Wells Fargo. We were prejudiced when Chad Nickerson made a motion for intervention based on M.R.Civ.P. 24 at oral argument and was prevented from providing input prior to summary judgment being rendered. We are prejudiced by Wells Fargo refusing to allow employees with firsthand knowledge who are willing to provide testimony to provide statements regarding their attempts to help us force Wells Fargo to accept our payments and fees. We are prejudiced by the fact we were procedurally forced into the subpoena process by the stalling tactics of Wells Fargo. We are prejudiced by Wells Fargo’s and HSBC’s concealment of the truth. In reality and in law, the only party to this action who is truly suffering prejudice is the Nickersons. We are also the only party that has suffered damages due to this lengthy litigation. HSBC nor Wells Fargo can incur lawful damages that can be restored by this Court when any alleged rights have been established by fraud. We on the other hand have suffered severe, significant, substantial and sizeable damages and injuries by Wells Fargo and their accomplices’ hostile takeover of our chosen, earned and established way of life. Damages such as the oppressive restrictions placed on the development of our farm and ranch operations due to this assault on our property ownership; the loss, refusal and prevention of the benefit of once in a lifetime interest rates to increase our family wealth and business operations; the embezzlement, damage and loss of value and usability of a lifetime of accumulated resources, financial reputations, equity assets, investments, monetary wealth, all moneys invested and spent on this property; among other such damages and injuries as detailed in our Amended Answer, Counterclaim and Demand for Jury Trial that have created impossibilities of circumstance we were and are powerless to reverse.

3. There were no issues of material fact regarding our claim for summary judgment.

Since HSBC has introduced this argument again, we will respond to their false statements regarding summary judgment. HSBC continues to manipulate our claim there were no issues of material fact when we filed for summary judgment in an attempt to deceptively infer we admitted there were no issues of material fact regarding the complaint. This inference is totally false and misleading. There were and are no issues of material fact regarding our claim for summary judgment based on standing. Even the Court stated we disputed almost everything material and non-material and that we “went into great detail setting forth a factual history with the servicer of the loan Wells Fargo…And there appears to be a history of them attempting to make payments after that initial default.” Transcript, p. 13:17-23. Our claim there were no issues of material fact was solely in regards to our claim for summary judgment on standing not, as the record clearly demonstrates and this Court recognizes, that there were no issues of material fact regarding HSBC’s claims.

There were and are no issues of material fact regarding our claim for summary judgment based on standing. The record and the facts demonstrate HSBC does not have standing and we based our claim for summary judgment on these still undisputed material facts: 1) HSBC is not the note holder – No one from HSBC has ever claimed HSBC is in possession of our note and the copy of the note presented is indorsed to Wells Fargo not HSBC. 2) HSBC admits they do not have authority to foreclose and the Trust agreement governing their alleged involvement with this loan forbids it. HSBC officer Christina Johnson has denied HSBC’s involvement with this foreclosure and stated it was Wells Fargo’s responsibility to foreclose and all concerns should be addressed to Wells Fargo for resolution. 3) HSBC does not have beneficial interest in the mortgage – HSBC’s assignments are fraudulent, robo-signed and fatally fail to show a clear chain of title. Fraud vitiates all contracts. Assignments from Wells Fargo to Wells Fargo Asset Securities Corporation (WFASC) and then from WFASC to HSBC did not occur as would be required for a clear chain of title to exist and our mortgage to lawfully be a part of the Trust as claimed. 4) HSBC is in breach of contract because HSBC did not provide notice or opportunity to cure any alleged default. 5) HSBC’s claims are fraud – “fraud vitiates every transaction and all contracts. Bails v. Gar (1976), 171 Mont 342, 558 P.2d 458, 461.” Jenkins v. Hillard, 199 Mont. 1, 647 P.2d 354, 357 (1982). To this day HSBC has never refuted the note is not indorsed to them or verified it is in their possession, has never denied their claims they are not responsible for foreclosure and are not a party to this foreclosure, has never argued the assignments are not robo-signed and fraudulent, has not provided notice of default or opportunity to cure, and has never denied the fraud we have uncovered. Therefore, there were and are no issues of material fact regarding standing as raised in our motion for summary judgment.

CONCLUSION

The Montana Supreme Court instructed us to provide sworn and verified evidence from Wells Fargo (letters, affidavits, testimony – see Plaintiff’s Exhibit 1 – remand order). We complied with these instructions, approached Wells Fargo for records, and approached Wells Fargo’s current and former employees for written verified statements. Wells Fargo refused to provide the records and refused to allow their current employees to provide this testimony. We obtained written verified testimony from Heather Hummel, a former Wells Fargo employee who can testify to Wells Fargo’s malicious prevention of performance toward us and other customers. We presented affidavit testimony of others who personally witnessed Wells Fargo’s prevention of performance. We did not delay in issuing this subpoena. The subpoena became procedurally appropriate and was only necessary at this time because Wells Fargo refused to comply with the remand and refused to allow witnesses to testify.

We are being severely and unjustly prejudiced by Wells Fargo’s refusal to provide our records and to allow their employees (witnesses who have firsthand knowledge of our attempts to make payments, our commitment to this obligation and our long-term relationship with Wells Fargo, who are willing to testify) to simply provide written verified statements. Wells Fargo is intentionally blocking and withholding evidence required on remand, delaying the process, and prejudicing our defense. Therefore, Wells Fargo, allegedly acting on behalf of HSBC, has left us and this Court with no choice but to subpoena their records. There are no other avenues to justice for us to pursue.

As detailed above, the information requested by the subpoena is necessary because Wells Fargo has refused to provide our records and allow their employees to provide written statements regarding their attempts to assist us in making payments and the fact Wells Fargo rejected those attempts. Other than our personal testimony and those of our witnesses that were present which have been submitted to this Court, we are left with no other way to defend ourselves than to obtain the information from Wells Fargo’s records requested in this subpoena. Federal law (12 C.F.R. §§ 1024.36 and 1024.38) requires Wells Fargo to provide this information when requested whether or not a subpoena is present. Therefore, since 1) HSBC’s motion is untimely, 2) neither HSBC nor Wells Fargo will experience any undue burden, 3) federal law requires Wells Fargo to maintain and provide the information when requested, and 4) this information is necessary to our defense, HSBC’s motion to quash should be denied.

In addition, as demonstrated throughout this response, HSBC’s motion to quash is vague, without foundation, false and misleading, and is solely intended to delay justice and create prejudice for us. Refusing our April 1 payment started this action. HSBC is the moving party in this action so the burden of proof is theirs. A review of the record demonstrates we are the only party that has provided any admissible evidence thus far. We are the only party that has consistently followed the Court’s scheduling order and adhered to the Court’s deadlines. We have diligently prepared and presented discovery and provided argument with supporting documentation and legal authority. We have told the truth. This Court needs to honor our efforts by rendering a verdict based on the merits of the case. The State of Montana needs to protect us from losing our home and family ranch. This judgment has far reaching consequences, not only for us, but for future generations that will follow us, and for Montana homeowners as a whole, and must not be rendered without due consideration.

The information sought by our subpoena is clearly relevant. Wherefore, we request HSBC’s motion to quash be denied and Wells Fargo be compelled to comply with this subpoena.

An objection and motion to vacate this Court’s order denying our motion for extension of time with its supporting brief is being filed in conjunction with this response and should be incorporated herein.