It Happened To Us In Montana
The Nick and Donna Nickerson Family
From the time Donna took her first steps in the deep South, she loved those cowboy boots her Papa got her. Nick grew up in the Rockies and wearing a cowboy hat was more than a token thing to do when he went to ride or play with a new colt. Both loved the woods, mountains, nature, outdoor adventures and living life. God led the two of them together and then life together led them to the big sky country of Montana. As time passed and their family grew, the Nickersons and their children all dreamed of homesteading, ranching, farming, growing older, and hopefully growing a little younger, in the mountains. Their family's life mission and calling was, and is to serve others, and they had plans to get a ranch in the Rocky Mountains where they could share the beauty and relaxation of God's Creation with others. They worked. They saved. They searched...for years. Then, finally...they found. Their eldest son found the ranch and it was everything, and even more, the Nickersons could have ever dreamed of finding as a place to call and be their home. A log house they could finish themselves; acres and acres of pasture for livestock, field crops, vegetable crops, berries, fruit trees, and green houses; mountains, streams; trees; views; incredible breathtaking views; room for expansion for future generations; and a whole lot more. It was unanimously love at first sight, and that can be a big accomplishment for such a large family.

Because of the Nickersons' excellent and strong credit (a personal banker said it was called perfect) and a well-established long term and solid relationship with Wells Fargo Bank, N.A., obtaining financing was a breeze and the Nickersons were able to close on their new ranch....


We have left out a lot of details of our story, but hopefully this excerpt submitted to the District Court in our Amended Answer, Counterclaim and Demand For Jury Trial provides an introduction of how we first met and fell in love with our Montana property. Our family has been fighting a long time to save our home, organic farm, working ranch, ministry retreat, and entire life savings from a wrongful foreclosure that is being pursued without cause or right. Unfortunately, Judge Mike Menahan of the First Judicial District Court relied on procedural manipulation and false and unverified claims to render his prejudicial judgments. Thus, our home was scheduled to be sold on May 3, 2017. We appealed to the Montana Supreme Court and they stopped the sale pending appeal. However, on August 22, 2017, the Supreme Court denied our appeal and closed the litigation. We are shocked, saddened, and more committed than ever to save our ranch, clear our name, and fight the systemic corruption that is allowing this foreclosure to take place. If our home and family ranch can be taken away from us when proof of fraud, mortgage abuse and prevention of performance are within the chambers of the Montana District Court and the Montana Supreme Court, no home in Montana is secure. No home in America is secure.

The truths of this matter stand on their own so we have trusted democracy and justice to eventually prevail and stop our victimization.  We committed no action or inaction that warrants or justifies this foreclosure or any of the actions being taken against us. We did not default. We are victims of an unbelievably malicious assault by Wells Fargo, HSBC Bank N.A., JP Morgan Chase, PHH Mortgage and their accomplices.

Please pray and help us fight all the way for our home. We cannot win this battle alone. It happened to us, and it could happen to you.

We are adding more details and documents to this page and site as time allows. We are fighting a lot of bad guys right now so we are having to be wise in how we expend our time and resources. We appreciate you taking the time to read our story. Pray and use whatever authority or networks you have to put pressure on anyone who may or will take the authority against the national banks to stop this injustice.

We are resting in the fact that no matter what happens God is still on His Throne and He will render the Final Judgment.

Resting and trusting in Him,
The Nickerson Family

Be still, and know that I am God: I will be exalted among the heathen, I will be exalted in the earth. Psalms 46:10




More Of The Story
A Historical Timeline Of Our Battle To Save Our Montana Home


The fraud began at the closing table.
Wells Fargo colluded with HSBC to steal our ranch by breaking Montana and federal laws.
Wells Fargo refused our payments and prevented our performance.
Wells Fargo created a second assignment to give away what they had already given away.
Wells Fargo continued to refuse our payments or work with us in any way.
Wells Fargo "began" harassing us.
HSBC filed for foreclosure on April 1, 2013.
We followed the rules and directions provided to us.
HSBC and Erika Peterman did not follow the rules.
HSBC closed all doors of formal discovery regarding this foreclosure in May 2013.
We have conducted extensive informal discovery.
Our attorney admitted he had not been working for us.
We approached the Court with the truths of this matter to give democracy and the judicial system a chance to prevail.
HSBC has no standing.
We continued to conduct discovery.
Democracy is redacted and justice is denied with legal chicanery and procedural wizardry.
Read carefully and you will KNOW why mortgage fraud and servicing abuse continues.
The Supreme Court remanded our case.
Wells Fargo would not allow us access to our records or their employees.
Wells Fargo and HSBC have thwarted justice and our Constitutional and contractual rights throughout this litigation.


The fraud began at the closing table.

Wells Fargo originated the loan on our Montana ranch in 2007. When we executed a Note and Mortgage with Wells Fargo through Wells Fargo’s Private Mortgage Banking side of the Wells Fargo branch in Helena, Montana, our financial portfolio was solid and credit was perfect. Jeffrey Olech, a Wells Fargo Private Mortgage Banker in Bozeman, Montana, coordinated this loan. We had perfect credit, a large down payment, and thought the loan was being executed in good faith. We had no knowledge of its fraudulent creation; predatory cohesiveness; Wells Fargo’s criminal scheme to defraud us by the Note and Mortgage presented; or Wells Fargo’s intentions or ability to prevent our performance, attack our entire financial portfolio, and try to steal our investment in the future. We trusted Wells Fargo to do the right thing by us and the investment we were entrusting to them. Unfortunately, time has proven Wells Fargo is not trustworthy and we have found ourselves innocent and undeserving victims of mortgage fraud, servicing abuse and predatory lending.
 
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Wells Fargo colluded with HSBC to steal our ranch and seize our substantial equity by breaking Montana and federal laws.

Without our knowledge or consent, Wells Fargo executed a fraudulent and robo-signed assignment of mortgage allegedly assigning our note and mortgage to HSBC in April 2010 and again in August 2012. To be more specific, Wells Fargo Bank N.A. executed two assignments giving all their beneficial interests to HSBC Bank USA. Two? Yes, that is correct. Wells Fargo allegedly gave all their beneficial interest away, then did it again. No, this is not possible. We were not notified or provided a Notice of New Creditor on either of these assignments in violation of 15 U.S.C. § 1641(g) and Regulation Z 12 C.F.R. §§ 1026.39.

12 U.S.C. § 1641(g) Notice of new creditor
(1) In general In addition to other disclosures required by this subchapter, not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer, including—
(A) the identity, address, telephone number of the new creditor;
(B) the date of transfer;
(C) how to reach an agent or party having authority to act on behalf of the new creditor;
(D) the location of the place where transfer of ownership of the debt is recorded; and
(E) any other relevant information regarding the new creditor.

12 C.F.R. § 1026.39  Mortgage transfer disclosures.
Link to an amendment published at 78 FR 80130, Dec. 31, 2013.  

(a) Scope. The disclosure requirements of this section apply to any covered person except as otherwise provided in this section. For purposes of this section:  

(1) A “covered person” means any person, as defined in §1026.2(a)(22), that becomes the owner of an existing mortgage loan by acquiring legal title to the debt obligation, whether through a purchase, assignment or other transfer, and who acquires more than one mortgage loan in any twelve-month period. For purposes of this section, a servicer of a mortgage loan shall not be treated as the owner of the obligation if the servicer holds title to the loan, or title is assigned to the servicer, solely for the administrative convenience of the servicer in servicing the obligation.  

(2) A “mortgage loan” means any consumer credit transaction that is secured by the principal dwelling of a consumer.  

(b) Disclosure required. Except as provided in paragraph (c) of this section, each covered person is subject to the requirements of this section and shall mail or deliver the disclosures required by this section to the consumer on or before the 30th calendar day following the date of transfer.  

(1) Form of disclosures. The disclosures required by this section shall be provided clearly and conspicuously in writing, in a form that the consumer may keep. The disclosures required by this section may be provided to the consumer in electronic form, subject to compliance with the consumer consent and other applicable provisions of the Electronic Signatures in Global and National Commerce Act (E-Sign Act) (15 U.S.C. 7001 et seq.).  

(2) The date of transfer. For purposes of this section, the date of transfer to the covered person may, at the covered person's option, be either the date of acquisition recognized in the books and records of the acquiring party, or the date of transfer recognized in the books and records of the transferring party.  

(3) Multiple consumers. If more than one consumer is liable on the obligation, a covered person may mail or deliver the disclosures to any consumer who is primarily liable.  

(4) Multiple transfers. If a mortgage loan is acquired by a covered person and subsequently sold, assigned, or otherwise transferred to another covered person, a single disclosure may be provided on behalf of both covered persons if the disclosure satisfies the timing and content requirements applicable to each covered person.  

(5) Multiple covered persons. If an acquisition involves multiple covered persons who jointly acquire the loan, a single disclosure must be provided on behalf of all covered persons.  

(c) Exceptions. Notwithstanding paragraph (b) of this section, a covered person is not subject to the requirements of this section with respect to a particular mortgage loan if:  

(1) The covered person sells, or otherwise transfers or assigns legal title to the mortgage loan on or before the 30th calendar day following the date that the covered person acquired the mortgage loan which shall be the date of transfer recognized for purposes of paragraph (b)(2) of this section;  

(2) The mortgage loan is transferred to the covered person in connection with a repurchase agreement that obligates the transferor to repurchase the loan. However, if the transferor does not repurchase the loan, the covered person must provide the disclosures required by this section within 30 days after the date that the transaction is recognized as an acquisition on its books and records; or  

(3) The covered person acquires only a partial interest in the loan and the party authorized to receive the consumer's notice of the right to rescind and resolve issues concerning the consumer's payments on the loan does not change as a result of the transfer of the partial interest.  

(d) Content of required disclosures. The disclosures required by this section shall identify the loan that was sold, assigned or otherwise transferred, and state the following:  

(1) The name, address, and telephone number of the covered person.  

(i) If a single disclosure is provided on behalf of more than one covered person, the information required by this paragraph shall be provided for each of them unless paragraph (d)(1)(ii) of this section applies.  

(ii) If a single disclosure is provided on behalf of more than one covered person and one of them has been authorized in accordance with paragraph (d)(3) of this section to receive the consumer's notice of the right to rescind and resolve issues concerning the consumer's payments on the loan, the information required by paragraph (d)(1) of this section may be provided only for that covered person.  

(2) The date of transfer.  

(3) The name, address and telephone number of an agent or party authorized to receive notice of the right to rescind and resolve issues concerning the consumer's payments on the loan. However, no information is required to be provided under this paragraph if the consumer can use the information provided under paragraph (d)(1) of this section for these purposes.  

(4) Where transfer of ownership of the debt to the covered person is or may be recorded in public records, or, alternatively, that the transfer of ownership has not been recorded in public records at the time the disclosure is provided.  

(e) Optional disclosures. In addition to the information required to be disclosed under paragraph (d) of this section, a covered person may, at its option, provide any other information regarding the transaction.

During this time, Wells Fargo prevented our performance and tried to force us into foreclosure. Kenneth Hayes, Bryan Proctor, and countless other Wells Fargo employees helped us stop Wells Fargo’s intentional prevention of performance and can testify to our heroic efforts to meet any and all alleged obligations regarding this loan. Their testimonies, records, and the timing of both assignments demonstrates Wells Fargo’s history of preventing our performance, corroborates Wells Fargo’s intentional prevention of performance, documents our faithfulness to perform when permitted to do so, invalidates the legality of the April 2010 and the subsequent 2012 assignment, and demonstrates the existing ownership and the alleged status of our loan disqualified the account from ever being assigned to HSBC as claimed.

Subsequently refusing our payments in April 2012 without cause or right, then assigning the allegedly delinquent loan a second time into the same closed Trust to stop us from curing any created default, demonstrates Wells Fargo’s immoral and illegal predatory patterns and practices. Wells Fargo or any other entity trying to take our ranch away from us by claiming non-performance has no factual foundation whatsoever.

Wells Fargo and HSBC knowingly and willingly violated state and federal laws and pursued foreclosure against our property without cause or right.

“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.

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 .

Two of the key servicing provisions that have been violated in this case are:
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.

Ends Robo-signing: Requires accuracy, personal knowledge by signatories, no reliance on inaccurate affidavits, pleadings, notices of default, sale, etc., requires standards for training & supervision of those signing docs, and prohibits volume-based compensation incentives. In nonjudicial states, servicer must review competent and reliable evidence to substantiate default and right to foreclose prior to referral to foreclosure. Id.

Single Point of Contact (SPOC)
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 and refused to appoint a SPOC despite repeated requests. This 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.

No Robo-signing
The foreclosure complaint filed with the District Court on April 1, 2013, was robo-signed by Montana Attorney Erika Peterman – a fraudulent activity banned by Wells Fargo’s agreement with the Montana Attorney General. No person from HSBC or Wells Fargo ever signed or verified the complaint or any evidence included within it. Rather, HSBC denied, in writing, all involvement with the foreclosure. As a matter of record, neither HSBC, nor their alleged Servicer Wells Fargo, ever signed or verified anything within the Complaint. We presented evidence to the Court all documents presented to establish standing are robo-signed and do not comply with federal or state laws.

Nonetheless, the Court granted summary judgment in favor of HSBC.
M.R.Civ.P. 56(e)(2) states, "When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading. Rather, its response must -- by affidavits or otherwise provided in this rule -- set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party."

Quote from Attorney Erika Peterman:

So it could create a factual dispute with Wells Fargo, but not with HSBC… I mean, they can bring claims against Wells Fargo, or against HSBC, for either of them maybe not accepting payments… Well, everything they say could create an issue of fact.
                                                                                            Transcript, 14:6-8; 28:18-21; 47:22-23

An attorney named Erika Peterman from Missoula, Montana, without affidavit or proof of authority, filed a Complaint claiming to represent HSBC Bank and claiming HSBC had beneficial interest in our property. Her Complaint was filed under Peterman Law. Then without notification, her filings listed Routh, Crabtree and Olsen "RCO Legal" as the firm prosecuting the Complaint.

Throughout the summary judgment process, Erika Peterman’s false representations created ghost truths and interests that we have been judicially denied opportunity to refute. These unlawful and inadmissible representations have also been used to prevent our access to account records and witnesses that irrefutably expose their counterfeit origin and enforceability. Erika Peterman’s representations have been used as a gavel to condemn us of default in the absence of lawful witness testimony and admissible evidence. This is when all truth declares we, except when prevented, have faithfully honored any and all obligations regarding Wells Fargo.

MCA §28-1-1302. Effect when performance prevented by creditor. If the performance of an obligation is prevented by the creditor, the debtor is entitled to all benefits that the debtor would have have obtained if the obligation had been performed by both parties.

Per MCA §28-1-1302, our credit worthiness and testimony is not marred by Wells Fargo’s prevention of performance as, per Common Law, performance refused releases the debtor.
 
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Wells Fargo refused our payments and prevented our performance.

We paid our March 2012 payment on March 1, 2012. Then, beginning in April 2012, Wells Fargo began refusing our payments. We talked to everyone from the tellers up to the executive offices of Wells Fargo to compel Wells Fargo to take our payments, but Wells Fargo refused. Comprehensive phone logs and notations on our accounts document these conversations took place. Teresa Koepke and Jody Lauzon, among others, tried to help us make our payments. Both have firsthand knowledge of the fact Wells Fargo rejected our payments at their local branch and Wells Fargo prevented our performance.

We continued to request, plead, and demand Wells Fargo accept our payments. In June 2012, an employee of Wells Fargo told Donna Nickerson that Wells Fargo would fix the account and allow payment to be processed at the local branch. Wells Fargo never fixed the account and would not allow us to speak with this employee again. Wells Fargo then denied her existence. Witnesses can testify to the contents of this communication that was initiated by Teresa Koepke and Jody Lauzon’s attempts to resolve this situation.
 
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Wells Fargo created a second assignment to give away what they had already given away.

On August 22, 2012, Wells Fargo executed another fraudulent and robo-signed Corporate Assignment of Mortgage allegedly assigning our mortgage to HSBC a second time. One cannot give what one does not have. The Note was not included in this assignment, which means this assignment is null in Montana. No note with the mortgage. No assignment. The law is pretty straightforward.

     “assignment of a mortgage without the underlying obligation is a nullity.” Cornish v.
     Woolverton
, 32 M 456, 81 P 4 (1905).

The "delinquent" status of this account caused by Wells Fargo’s prevention of performance,
and the closed status of the Trust in August 2012, disqualified our loan from being assigned into this Trust. Simply put, the assignment could not and did not lawfully happen. No lawful assignment. No ownership. No indebtedness. No default. No standing. No case.

Further, Wells Fargo Bank N.A. failed to first assign the loan to Wells Fargo Asset Securities Corporation and failed to assign the Note with the Mortgage which further negates the legality of this instrument. This nullifies the enforceability of this assignment as claimed, and presents strong motivation for preventing our performance.

152. If the Nickersons loan is part of a trust as HSBC and Wells Fargo claim, then Wells Fargo could not have had any interest in the Note or Mortgage at the time of these assignments. In order for the Nickersons Note and Mortgage to legally be a part of this trust, Wells Fargo would have had to assign, transfer, sell all of its interest in the Nickersons Note and Mortgage to Wells Fargo Asset Securities Corporation for deposit into the trust prior to the closing date of the trust which is May 30, 2007. Therefore, Wells Fargo would not have held the Note nor would they have had beneficial interest in the Mortgage at the time either of these assignments to HSBC occurred. nemo dat quod non habit - one cannot grant what one does not have

153. Since Wells Fargo would not legally have had ownership or beneficial interest in the Note and Mortgage at the time of the transfer, these assignments are void, constitute fraud and implicate criminal activity. Montana Penal Code, Part I, Title VII, Chapter 4, Section 232 “Every person who knowingly procures or offers any false or forged instrument to be filed, registered or recorded in any public office within the State, which instrument, if genuine, might be filed or registered, or recorded under any law of this State, or of the United States, is guilty of felony.”

                                              Nickerson Amended Answer, Counterclaim and Demand For Jury Trial, pg. 82


Additionally, as stated previously, we were not provided a Notice of New Creditor in violation of 15 U.S.C. § 1641(g) and Regulation Z 12 C.F.R. §§ 1026.39.
 
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Wells Fargo continued to refuse our payments or work with us in any way.

At this time, our offers of all payments, fees, and unexplained blackmail fees added to our account of $3,000, had been refused repeatedly. We initiated numerous communications with Wells Fargo during this time to make payments, but all payment attempts were refused. We continually requested a Single Point of Contact (SPOC), but Wells Fargo refused. Wells Fargo’s phone logs and notations confirm these conversations took place and taped conversations validate the true occurrences of these conversations. Witness testimony from those present during these conversations confirms the content of these communications.
 
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Wells Fargo “began” harassing us.


Beginning in January 2013, Wells Fargo contacted us relentlessly, sometimes twice or more daily, to communicate the status of our account. These lengthy conversations involved callers asking us a battery of personal questions and then informing us our home was in foreclosure at the end of the conversation. The callers refused to answer any questions, provide us with any written documentation, or work with us in any way. During all of these conversations we confirmed the conversation was being taped and that the representative was making notations to the account. We then told Wells Fargo this is our home, we want to keep it and we have the wherewithal to keep it. We asked each representative if they were willing or able to accept payment or could help us make our payments. They said no. The callers refused all offers of money, in part and in full, and informed us the purpose of their call was not to collect money, but to communicate the status of our account. We questioned how the status had changed since they called hours earlier. No changes. These calls were received seven days a week, during and after legal call hours, even on holidays. At times, 45 minutes a call was spent dealing with these representatives. These calls continued after we were served with the complaint and continued until we provided Wells Fargo with a harassment cease and desist demand. All of these calls, along with other attacks on our financial portfolio, are evidence of predatory lending and abusive debt collection, and serve to prove Wells Fargo prevented our performance. Extensive proof of predatory lending and abusive debt collection practices based on prevention of performance experienced by us at the evil hands of Wells Fargo and those acting on their behalf are detailed in the records we subpoenaed.
 
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HSBC filed for foreclosure on April Fool’s Day.

On April 1, 2013, HSBC filed a Complaint for Foreclosure. The Complaint was robo-signed by Erika Peterman of Peterman Law/RCO Legal. No person from HSBC bank signed or verified the Complaint. In it, she alleged to represent HSBC, but failed to provide proof of authority from HSBC, despite judicial requests and a formal motion for proof of authority. Thus, Erika Peterman has been allowed to conceal her apparent true client in this matter, which appears to be Wells Fargo. Crowley & Fleck – the firm representing this matter before the Montana Supreme Court stated their client is Wells Fargo [not HSBC] in a disclosure letter from Crowley & Fleck to Justice Mike Wheat dated September 4, 2015. Nonetheless, Erika Peterman failed to provide proof of authority from HSBC, and therefore, has purposefully chosen and been allowed to deceive the Court and the Nickersons.

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.

This deceit has created insurmountable hardship for us in producing discovery needed to defend and support our claims and defenses throughout this case, specifically issues surrounding Wells Fargo’s malicious prevention of performance. Wells Fargo has refused to comply with record requests claiming they are not a party to the suit. HSBC has denied all involvement in the foreclosure action and directed all record inquiries to Wells Fargo.
 
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We followed the rules and the directions provided to us.


When we received the Complaint, we filed our answers consisting of a general denial and reserving the right to amend as instructed by our attorney. He indicated he would file his appearance as soon as he was approved to practice in Montana. He met with Chuck Munson of the Attorney General’s office and First Judicial Clerk of the Court Nancy Sweeney to share our story and begin the process.

1. Defendants deny the following paragraphs of the Plaintiff's Complaint, 1 through 11.

2. Defendants deny each and every other allegation of the Plaintiff's Complaint not specifically admitted herein.

Defendants specifically reserve the right to amend their Answer to include affirmative defenses if such are justified by discovery or by the laws of this action.
                                                    
                  Excerpts from Nickerson's Answer to Complaint
 
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HSBC and Erika Peterman did not follow the rules.

We were unlawfully and improperly served by a process server climbing a locked gate and ignoring no trespassing signs in April 2013. No attempts to contact us by phone or mail had been made. We contacted HSBC to determine who HSBC was and how they were involved. We had never made any payments to HSBC, HSBC had never sent us a Notice of New Creditor as required by federal law, nor had HSBC ever sent us a notice of default or acceleration as required by the alleged loan documents. HSBC Officer Christina Johnson responded by stating HSBC had only a nominal role and to send any inquiries regarding foreclosure to Wells Fargo. We responded by providing proof HSBC was the named party to the suit. On May 31, 2013, Christina Johnson responded by stating HSBC was not responsible for foreclosing and stated, I am sorry we couldn’t be of more assistance, however, it is necessary to direct your concerns to Wells Fargo for resolution. HSBC’s executive office also affirmed this during a phone conversation and went further by stating HSBC did not have any account records, documentation or account notations, only Wells Fargo had this information. HSBC’s office communicated HSBC was unable to receive or process any payments on our behalf or require Wells Fargo to work with us regarding this account or its current status. HSBC denied any knowledge of Erika Peterman working for them or HSBC having an attorney or any role in this foreclosure. HSBC’s office also denied any involvement with or knowledge of this foreclosure to Chris Romano of the Montana Banking Commissioner’s office via email.

 
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Thus, HSBC closed all doors of formal discovery regarding this foreclosure in May 2013.

Montana First District Court Judge Mike Menahan ignored our requests for Erika Peterman to provide proof of authority. This prevented us from re-opening the door and has ultimately led to the adverse decisions against us that have been rendered in this case. By formally denying involvement, HSBC prevented Montana oversight agencies like the Banking Commissioner’s office from executing any powers of jurisdiction. We petitioned and have continued to petition the Court for proof of authority so we could a) force HSBC to admit involvement and secure the assistance of these agencies; or b) so HSBC would be forced to disclose Wells Fargo is pursuing this foreclosure in HSBC’s name to circumvent any public, civil, or criminal exposure for their vicious assaults against our family. Wells Fargo, allegedly acting on behalf of HSBC, was the record keeping entity regarding this account. Our right to access our records and witnesses to prove prevention of performance has been and continues to be denied by HSBC and Wells Fargo failing to disclose their true involvements in this action.
 
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We have conducted extensive informal discovery.

From May 2013 until the present we have been forced to conduct informal discovery because HSBC has averted any responsibility for this foreclosure action and Wells Fargo is not a party to this suit. We have made countless attempts for resolution with Wells Fargo personally, through third parties, and through pleadings to the Court. The Attorney General’s office and other oversight agencies could not help us because Wells Fargo formally denied involvement in this action. However, even though Wells Fargo continued to maintain they were not responsible for this lawsuit, in 2013, Mike Palzes of the Montana Attorney General’s Office of Consumer Protection agreed to reach out to Wells Fargo on our behalf and try to facilitate a resolution.

According to Mike Palzes, Wells Fargo repeatedly denied involvement formally so Consumer Protection was limited by how they could help. However, Mike indicated Wells Fargo was undoubtedly the entity foreclosing. Even though the laws were in place to save our home, Mike told us nothing could be done to stop Wells Fargo from taking it.

We attempted to contact Mike Palzes to testify on our behalf regarding his research and Wells Fargo’s eventual admissions including, but not limited to, the facts Wells Fargo refused our payments, admitted they failed to work with us, and claimed they could not work with us because of our loan allegedly being entered into the closed trust. Mike Palzes has firsthand knowledge Wells Fargo admitted we did not qualify for any type of loan modification or settlement because our loan was entered into the closed trust, and that Wells Fargo admitted, even if we cured the alleged default or met excessive financial demands, the foreclosure of our home could not be stopped because of its involvement with the trust. Apparently Wells Fargo needs our home off their books because of all they did wrong regarding it.

Mike’s office informed us Mike was no longer with Consumer Protection and denied knowledge of his current whereabouts. Extensive investigation to secure his testimony to corroborate the prevention of performance we experienced led us to him at his new assignment. Mike communicated he fully remembered the details of our case, was sorry he could not help us, but he has been specifically told he will lose his job if he talks to our family. He indicated he had been severely reprimanded and would be in bad trouble if he tried to help us in any way.

During this process, Wells Fargo employee Harold Lovelady communicated Wells Fargo could not provide a satisfaction of Note even if we paid the alleged loan in full or modify our loan no matter what we did or how much we paid, because it was entered in a closed trust. Harold admitted Wells Fargo had no intention of helping resolve this situation or allowing us to resolve this situation that was caused by Wells Fargo’s refusal to accept our payments in 2012. This is documented in Wells Fargo’s records. Taped conversations exist to corroborate Harold’s admissions. Witness testimony can corroborate the contents of the admissions. It is our understanding Mike Palzes reviewed these tapes. He left his position and the State of Montana shortly thereafter.

During this process, Wells Fargo repeatedly refused to research and provide documentation regarding their prevention of our performance in 2012.
 
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Our attorney admitted he had not been working for us.

As we said previously, our attorney met with the Montana Attorney General’s office and the Court on our behalf. We understood he filed an appearance, provided the Court with a status report, and that he was working with numerous state and federal agencies to hold Wells Fargo and HSBC accountable for their criminal actions and civil liability. However, in late August 2013, we found out our attorney had been lying to us regarding the true status of our case and his actions involving his representation of us. Our attorney had some addiction problems that caused him to fall prey to the schemes of the bank. He asked for the opportunity to make it right, but by the end of the year, our attorney client relationship in this matter was ultimately dissolved, and we were forced to proceed pro se.
 
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We approached the Court with the truths of this matter to give democracy and the judicial system a chance to prevail.

A scheduling conference was held. On September 30, 2017, the Court issued a Scheduling Order and set the due date for amended pleadings for December 20, 2013. On December 19, 2013, per instructions from the Court, we filed a motion to extend time for 90 days in order for us to file a motion for summary judgment regarding standing and file our amended pleadings. Our research had revealed HSBC had no standing to bring this case, and we had learned at the Montana State Self-help Law Library and through the Court that we would waive our rights to raise the issue of HSBC's lack of standing if we failed to go ahead and challenge it.

The motion was granted and the pre-trial schedule extended 90 days.

Our motion for summary judgment was filed on January 17, 2014, per the scheduling order. We filed our motion based upon the following undisputed material facts and we requested oral argument:

In accordance with M.R.Civ.P. 56(b) and 56(c)1)(A), Defendants, Nick and Donna Nickerson hereby moves the Court for its order granting summary judgment.

The Issue: The Plaintiff does not have legal standing to bring the complaint when:

1) The Plaintiff is not the Note holder.
2) The Assignments of Mortgage referenced by the Plaintiff are fraudulent or otherwise null and void as a matter of law and therefore, they do not have beneficial interest in the Mortgage.
3) The Plaintiff admits they do not have the authority to foreclose.
4) The Plaintiff is in breach of contract.

This motion is based upon the pleadings of record, the Affidavit of Nick Nickerson in Support of Summary Judgment, and the Brief in Support of Summary Judgment filed simultaneously with this motion demonstrating that the Nickersons are entitled to judgment as a matter of law, and that there is no genuine dispute of material fact.

Oral argument is requested.

Our Brief In Support of Summary Judgment demonstrated HSBC lacked standing to bring a Complaint against us. HSBC lacked, and lacks, standing and no genuine disputes of material fact exist in regards to standing. These facts are rooted in truth and law, and are still undisputed today. HSBC does not own or have lawful beneficial interest in our property:

HSBC does not have the authority to foreclose. HSBC Officer Christina Johnson stated HSBC is not responsible for foreclosure and that all concerns should be addressed to Wells Fargo for resolution. HSBC admitted they do not have the authority to foreclose verbally and in writing to us, the Montana Banking Commissioner’s office, and other third parties. HSBC has not disputed this fact.

HSBC is not the holder. No one from HSBC ever signed the Complaint nor claimed to be in possession of the Note. Attorney Erika Peterman generally claims HSBC is the holder of the loan documents, but has fatally failed to explain why the note presented in conjunction with HSBC’s complaint is endorsed to Wells Fargo Bank, not HSBC. The Note specifically states:

WITHOUT RECOURSE
PAY TO THE ORDER OF
WELLS FARGO BANK, N.A.
BY __Joan Mills signature_
Joan M. Mills, Vice President

According to Montana and federal law - MCA § 30-1-201(2)(v)(i) and U.C.C. § 1-201(2) - ‘Holder’ means: the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession. Right to enforce cannot be obtained through fraud or illegality. Per law and fact, HSBC is not the note holder and therefore lacks standing to enforce it.

HSBC does not have beneficial interest in the mortgage. Both assignments of mortgage were fraudulent, forged and robo-signed. There is no assignment from Wells Fargo to Wells Fargo Asset Securities as required by the Trust Agreements in order for HSBC to be assigned the note. HSBC did not dispute these facts, but Attorney Erika Peterman unlawfully claimed and misled the Court into believing we could not challenge the assignments because we were not a party to them.

The common law rule permits a debtor to assert against an assignee any ground that renders the assignment void or invalid…

The obligor of an assigned claim may defend a suit brought by the assignee on any ground that renders the assignment void or invalid,… 6 Am.Jur.2d Assignments § 119 (database updated May 2012)...

Miller v. Homecomings Financial, LLC, 881 F. Supp. 2d 825 (S.D. Tex. 2012) HSBC cannot claim beneficial interest based on 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).

HSBC is in breach of contract by commencing this action and not providing notice.
The contract specifically requires the lender to provide notice, not the servicer. The alleged notice does not fulfill the obligations of the contract; indicates Wells Fargo, not HSBC, has a security interest in the property; and confirms HSBC is in breach of contract. It is undisputed HSBC did not provide us with notice or opportunity to cure the alleged default prior to filing their complaint.

HSBC’s claims are fraud – HSBC is not the note holder. HSBC’s assignments and documents are fraudulent, void, and cannot be relied upon to claim beneficial interest. HSBC has admitted they do not have the authority to foreclose. HSBC is in breach of contract. HSBC knows that foreclosing on our property constitutes fraud, yet they are intentionally, willfully and maliciously allowing a wrongful foreclosure to occur.

Clearly, HSBC does not have standing to bring a Complaint against us and summary judgment in their favor in not appropriate. Read the Brief In Support of Summary Judgment below.


Brief In Support of Summary Judgment

 

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

 

UNDISPUTED FACTS

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

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

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

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

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

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

WITHOUT RECOURSE
PAY TO THE ORDER OF

WELLS FARGO BANK, N.A.

BY __Joan Mills signature_

Joan M. Mills, Vice President

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

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

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

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

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

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

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

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

 

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

 

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

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

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

· Have the signer sign the document as you watch”

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

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

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

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

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

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

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

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

III. HSBC has breached the contract

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

HSBC is in breach of contract by commencing this action and not providing notice. In section 20 of the Mortgage (Complaint Exhibit B) the second paragraph states. “Neither borrower nor Lender may commence, join, or be joined to any judicial action (as either an individual litigant or the member of a class) that arises from the other party’s actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action.” And section 22 states” Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument…” HSBC, in alleging ownership of the loan documents by virtue of assignment, is therefore bound to all of the provisions within those documents. HSBC has breached the contract in the following ways:

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

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

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

IV. HSBC’s claims are fraud.

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

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

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

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

ARGUMENT

Standard for Summary Judgment

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

 

HSBC IS NOT ENTITLED TO FORECLOSE

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

1. They are the note holder.

2. They have beneficial interest in the mortgage.

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

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

5. They are not in breach of the contract.

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

Wherefore, the Defendants request the following:

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

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

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

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

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


 
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HSBC has no standing.

All of these genuine issues of material facts, that prove HSBC has no standing to bring this Complaint, are still undisputed by HSBC. Thus, genuine issues of material fact in the record dispute HSBC's standing to bring this Complaint . Therefore, we continued to file additional pleadings that we should have been granted summary judgment on our motion, and that HSBC does not have standing.

On February 3, 2014, Erika Peterman asked for more time to file her response to our motion. An order was granted on February 4, 2014, granting her until February 10, 2014, to respond. On February 11, 2014, one day late, Ms. Peterman email filed her response and cross-motion without any explanation as to why she disregarded the Court’s order to provide a response by February 10, 2014. In addition, she filed a brief in support of a cross-motion without properly filing a cross-motion. This caused us confusion on how to respond and prejudiced our defense because HSBC had sought no discovery as to why we denied their complaint and HSBC had denied any involvement in the foreclosure.            

HSBC sought summary judgment based on their claims that we initiated a debt with Wells Fargo, Wells Fargo assigned the debt to HSBC, we agreed the debt could be assigned, that we were in default for the payment due March 1, 2012 [which we were not], and that we have made no payments since. HSBC then claimed we could not challenge these assertions because we filed for summary judgment which meant we had claimed there were no issues of material fact surrounding this case. The record clearly negates HSBC's claims.

Reply briefs and responses were filed in which each party argued their respective positions. In our defense, we set forth facts detailing our efforts to get Wells Fargo to accept our payments in 2012 and demonstrating we paid our March 1, 2012, payment. The record shows we did not and were not in default on March 1,2012, as claimed in the Complaint. Any alleged default in existence after that was solely caused by Wells Fargo prevention of performance.

Throughout the summary judgment process we continued discovery, and as a result of that discovery, we filed our motion to amend per the Court’s Scheduling Order on March 21, 2014. Our motion contained our amended pleadings. From February 27, 2014, through March 21, 2014, Nick alone logged 320.5 hours working on discovery and preparing responses, amended answers and counterclaims. The combined efforts of the rest of Nickersons is more than triple those hours. We conducted extensive discovery to support our claims of prevention of performance and document the extreme motives and foundations for Wells Fargo and HSBC’s actions.  As a result of our discovery, we produced our amended pleadings which detail 16 bank errors, 24 affirmative defenses and 11 causes of action including pleading fraud with specificity. Read the pleadings below.
 

Amended Answer

We the Nickerson family grateful to God for the quiet beauty of our state, the grandeur of our mountains, the vastness of our rolling plains, and desiring to improve the quality of life, equality of opportunity and to secure the blessings of liberty for this and future generations do hereby present this Amended Answer and Counterclaim. We humbly entreat the Court to protect and defend our inalienable rights to a clean and healthful environment, to pursue life’s basic necessities, to enjoy and defend our lives and liberties, to acquire, possess and protect our property, and seek safety, health and happiness in all lawful ways. We have recognized and performed to the best of our abilities our corresponding responsibilities with integrity and proper regard for our obligations, and hereby entreat the Court to use its power to order the Plaintiff to cease and desist from this fraudulent assault on our family, way of life and constitutional rights once and for all and to make rightful reparations and restitutions for the wrongs they have committed against us. May God and this Court render justice for our family, for the citizens of Montana and for the world at large. (adaptation from the Constitution of the State of Montana)

 

"If the American people ever allow private banks to control the issue of currency, first by inflation, then by deflation, the banks and corporations that will grow up around them will deprive the people of all property until their children wake up homeless on the continent their fathers conquered."

Thomas Jefferson, 3rd President of the United States of America,
Author of the Declaration of Independence

 

“I accepted this assignment on a pro bono basis because of its high and urgent value to the public trust, and to educate the 50 Attorneys General who are brokering a settlement with the subject banks in an attempt to resolve fraudulent foreclosure practices…On this point I can attest to the fact that of the 176 assignments of mortgage I examined where the mortgage was allegedly being conveyed into a securitized trust, or to the trustee thereof, not even one of them is valid; all of them are invalid and violate the terms of the Pooling and Servicing Agreements that govern the trust, New York State trust and other laws, and the requirements of the I.R.S. for obtaining favored tax status under the REMIC rules.”

                        Marie McDonnell, Affiant Mortgage Fraud and Forensic Analyst
                       
Certified Fraud Examiner, ACFE
                       
From: Forensic Examination of the Essex Southern District Registry
                        © 2011 McDonnell Property Analytics, Inc., All Rights Reserved

 

“Under New York Trust Law, every sale, conveyance or other act of the trustee in contravention of the trust is void. EPTL § 7-2.4. Therefore, the acceptance of the note and mortgage by the trustee after the date the trust closed, would be void.”

Supreme Court, Kings County, NY
Wells Fargo Bank, NA v. EROBOBO, 2013 N.Y. Slip Op 50675 (Sup. Ct. 2013)

 

“A signed notarization is the ultimate assurance upon which the whole world is entitled to rely that the proper person signed a document on the stated day and place. Local, interstate, and international transactions involving individuals, banks, and corporations proceed smoothly because all may rely upon the sanctity of the notary’s seal. This court does not take lightly the importance of a notary’s obligation to verify the signor’s identity and the date of signing by having the signature performed in the notary’s presence.”

Supreme Court of Washington
Klem v. Washington Mut. Bank, 295 P.3d 179, 176 Wash. 2d 771 (2013)

 

“I assume that there is no authority that we are required to follow in support of the proposition that a party who has perpetrated a fraud upon his neighbor may, nevertheless, contract with him in the very instrument by means of which it was perpetrated, for immunity against its consequences, close his mouth from complaining of it and bind him never to seek redress. Public policy and morality are both ignored if such an agreement can be given effect in a court of justice. The maxim that fraud vitiates every transaction would no longer be the rule but the exception.”

Supreme Court of Montana
Bails v. Gar, 171 Mont. 342, 558 P.2d 458, 461 (1976).

ANSWER

COMES NOW, Defendants, Nick and Donna Nickerson, hereby answer Plaintiff’s Complaint as follows:

1. Defendants deny paragraphs 1-11 of Plaintiff’s Complaint or lacks sufficient knowledge, information or belief regarding the allegations therein and therefore denies the same.

2. Defendants deny each and every other allegation of Plaintiff’s Complaint not specifically admitted herein.

3. In the interest of justice being served, Defendants request the Court take notice of the inconsistencies, falsehoods, misrepresentations, fraud and other problems with, and in the Plaintiff’s Complaint.

BANK ERRORS

Inconsistencies, falsehoods, misrepresentations, fraud and other problems with,

 and in the Plaintiff’s Complaint

1. The Invisible Bank. Paragraph 1 claims “HSBC Bank USA, National Association as Trustee for Wells Fargo Asset Securities Corporation, Mortgage Pass-Through Certificates, Series 2007-7 (“Bank”), is a corporation conducting significant business in Montana.” However, according to the Montana Secretary of State, HSBC Bank is not a registered or licensed business entity in Montana. HSBC Bank apparently does not even have one branch location or an ATM in the State of Montana. MCA § 35-1-1027. Consequences of transacting business without authority. “(1) A foreign corporation transacting business in this state without a certificate of authority may not maintain a proceeding in any court in this state until it obtains a certificate of authority.” HSBC cannot initiate a judicial action because they do not have a certificate of authority and their complaint should and must be dismissed.

2. The Bank without a Promissory Note. Paragraph 1 identifies HSBC as the “Bank” and in Paragraph 4 HSBC states, “Nickerson is indebted to the Bank under the Promissory Note, executed and delivered to the Bank on March 30, 2007…” The Nickersons did not execute and deliver a Note to HSBC. The Note executed by the Nickersons was specifically executed and delivered to Wells Fargo Bank, N.A. on March 30, 2007, not HSBC. HSBC cannot imply or claim possession of the Note as of March 30, 2007, or that the Nickersons are indebted to them when the Note executed by the Nickersons was executed and delivered to Wells Fargo. Nor can HSBC claim a true and correct copy of the Note delivered to the Bank is attached as Exhibit A, because the Note attached as their Exhibit A is executed to Wells Fargo. If HSBC is claiming a true and correct copy of the Note executed to Wells Fargo is attached, then someone from HSBC with the authority and personal knowledge to do so must swear under oath that it is a true and correct copy in order for this claim to have any legal effect or validity. Furthermore, in order for HSBC to claim true holder status and ownership they must, at a minimum, produce the original Note and Mortgage for this Court. “…in an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and the evidence of default.” Rebuplic National Bank of New York v. Zito, 280 A.D.2d 657 (2001) 721 N.Y.S.2d 244. HSBC has not provided a Note executed to them and therefore, their complaint must be dismissed.

3. Cashed check. In paragraph 2.a HSBC falsely states, “Nickerson has defaulted on the payment due March 1, 2012…” A review of a true, correct and authenticated copy of the payment history should, must and will show the Nickersons made the March 1, 2012, payment on March 1, 2012. RESPA Regulation X - 12 C.F.R § 1024.38 requires servicers to “(iv) Provide owners or assignees of mortgage loans with accurate and current information and documents about all mortgage loans they own;” MCA § 32-9-170 (1) requires servicers to “safeguard and account for any money handled for the borrower.” The alleged default amount stated by the Plaintiff is inaccurate. They have not maintained accurate and current information. Therefore, they cannot have a true and correct default amount, and thus, their complaint must be dismissed.

4. MISSING: Over a Quarter Million Dollars. Also, in paragraph 2.a and finishing the sentence above “…and has not made any payments on the loan.” This assertion is claiming the Nickersons have not made any payments on the loan which is absolutely false. A review of a true and correct copy of the Nickersons payment history should, must and will reveal the Nickersons have made well over a quarter million dollars of periodic payments towards the loan agreement. The Nickersons resent and consider libelous, slanderous, and malicious the allegation and assertion that the Nickersons have not made any payments on their loan. The truth, in fact, is the Nickersons have faithfully made every payment they have been allowed to make, and sincerely wish they had been allowed to continue to make their payments. Therefore, because the Nickersons were prohibited from making payments, they did not cause the default and HSBC’s complaint must be dismissed.

5. True and Correct Copy. In paragraph 4, HSBC claims to present a true and correct copy of the Note executed to them. In order for HSBC to state this exhibit is true and correct, it must be true and correct. In this context, (“the Note executed and delivered to the Bank”), the Note HSBC is claiming to present as a true and correct copy, would have to have been executed to them, HSBC. The Nickersons did not execute a Note to HSBC, and HSBC has not presented evidence to show otherwise. In fact, the “true and correct copy” presented is not executed to HSBC, but to a completely different entity. Furthermore, the compulsory rules of evidence require this copy to be verified under oath and in front of a notary in order to provide foundation and grounds to establish the truthfulness and veracity of it as an exhibit. Counsel has failed to lay this foundation, and therefore, the evidence presented is inadmissible hearsay M.R.E. 802. Therefore, HSBC has not presented a true and correct copy of a Note as stated in their claim and the complaint must be dismissed.

6.  The Felony Assignments. Paragraph 5 states “The Mortgage was assigned to HSBC Bank…the Assignments were recorded…on April 16, 2010…and on August 24, 2012.” HSBC is attempting to fraudulently present to the Court and the Nickersons that they received ownership of the Nickersons Note and Mortgage at the time of these assignments knowing that these assignments are false, forged, and could not legally transfer ownership. HSBC knew these assignments were void because they are not allowed to convey anything into or out of the alleged trust after the closing date, which was May 30, 2007. “Section 11.20 Closing Date. The Closing Date is May 30, 2007.” EX-4.1 - Pooling and Servicing Agreement, SEC file number 333-137620-12. “Section 10.04 Governing Law; Jurisdiction. This Agreement shall be construed in accordance with the laws of the State of New York (without regard to conflicts of laws principles), and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.” EX-4.1 - Pooling and Servicing Agreement, Id. “Under New York Trust Law, every sale, conveyance or other act of the trustee in contravention of the trust is void. EPTL § 7-2.4. Therefore, the acceptance of the note and mortgage by the trustee after the date the trust closed, would be void.” Wells Fargo Bank, NA v. EROBOBO, 2013 N.Y. Slip Op 50675 (Sup. Ct. 2013). Further, for the record, the second assignment only assigns the Mortgage which is a nullity. “assignment of a mortgage without the underlying obligation is a nullity.” Cornish v. Woolverton, 32 M 456, 81 P 4 (1905). Additionally, the second assignment was fabricated after foreclosure proceedings had been initiated which clearly points toward the intention to commit fraud upon the Nickersons, the Court and the county land records by recording a rushed, inaccurate, robo-signed, and wrought with fraudulent elements assignment to record a false beneficial interest transfer to HSBC. Montana Penal Code, Part I, Title VII, Chapter 4, Section 232 “Every person who knowingly procures or offers any false or forged instrument to be filed, registered or recorded in any public office within the State, which instrument, if genuine, might be filed or registered, or recorded under any law of this State, or of the United States, is guilty of felony.” Therefore, since the assignments HSBC is relying upon for ownership of the loan documents are illegal and void, their complaint must be dismissed.

7. A Mortgage is not a Deed of Trust. Paragraph 7 states, “As of the date of the Note and Deed of Trust (“Loan Documents”)…” The paragraph is ascribing “Loan Documents” to a Note and Deed of Trust. The Nickersons have and only agreed to have a Mortgage not a Deed of Trust on this property. It is impossible for HSBC or anyone else to claim or have any ownership or rights in regards to the Nickersons property by a Deed of Trust. Therefore, HSBC’s complaint must be dismissed.

8. Would the real Assignment please stand up? Paragraph 8 states, “HSBC…holds the loan documents and is beneficiary of the Mortgage by virtue of the Assignment.” HSBC defines “loan documents” as Note and Deed of Trust which does not and cannot exist on this property, and HSBC is claiming to be beneficiary by virtue of “which” assignment? There are two assignments referenced in the Complaint so which one is HSBC claiming gave beneficiary interest to HSBC, or does HSBC claim both assignments gave beneficiary interest? Either way they claim it, both assignments are null and void. See paragraph 6 above. Therefore, their complaint must be dismissed.

9. 2037. Paragraph 9 states, “Nickerson defaulted…by their failure to pay the same on or before its stated maturity date.” The Nickersons humbly request the Court note the stated maturity date is April 1, 2037. The Nickersons have obviously not been given the opportunity to pay until that date which is twenty-three (23) years from now, so, of course, the Nickersons should not be expected to have paid it in full yet.

10. Despite Demand. Paragraph 9 also states, “Despite demand, Nickerson has failed and refused to pay…” HSBC has never sent the Nickersons a demand letter nor was one included with the complaint. According to section 22 of the Mortgage presented by HSBC, HSBC was required to send a notice to the Nickersons but they failed to do so. In order to prove to the Court HSBC demanded the Nickersons pay, an authenticated copy of the demand letter should have been provided with the Complaint. The only correspondence the Nickersons received from HSBC are the two letters from Officer Christina Johnson which places all responsibility for foreclosure on Wells Fargo (Affidavit of Nick Nickerson in Support of Motion for Summary Judgment, Exhibits A and B). Furthermore, the Nickersons have not failed or refused to pay. Their payments have been rejected. In fact, it would be more accurate to say, that despite demand, Wells Fargo has failed and refused to receive or accept payments from the Nickersons. Therefore, HSBC’s complaint must be dismissed.

11. Nothing comes from nothing. Paragraph 10 mentions Loan Documents again, “recoverable under the Loan Documents.” Again, HSBC defines “loan documents” as Note and Deed of Trust which would be an impossibility to exist on this property. There is nothing that can be recoverable under a document that does not exist and cannot be used on the Nickersons property. Therefore, HSBC’s complaint should and must be dismissed. ex nihilo nil fit - from nothing nothing comes, ex dolo malo non oritur action - no right of action can have its origin in fraud

12. No Default. Paragraph 10.a states, “As a result of the default of Nickerson.” However, any presumed or alleged default is the direct, and, or, indirect result of the actions or inactions, in whole, or in part, of the Plaintiff, HSBC, and, or, by and through the servicer Wells Fargo and not the Nickersons. The Nickersons contend and maintain any alleged 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. Furthermore, HSBC’s complaint should and must be dismissed, and HSBC should be held liable because of the clearly false misrepresentation of default and other falsehoods in their complaint.

13. Crime doesn’t pay. Paragraph 10.a states HSBC “is entitled to recover its attorney fees and expenses whether or not there is a lawsuit.” Since any alleged default is caused by Wells Fargo, and the assignments allegedly proving standing are illegal and fraudulently crafted, it is not appropriate, proper, or legal for the Plaintiff to recover any fees. ex dolo malo actio non oritur  - a right of action cannot arise out of fraud, ex maleficio non oritur contractus - a contract cannot arise out of an illegal act

14. Opposing Counsel. In paragraph 10.a, HSBC says they “found it necessary to retain the services of Erika Peterman of Peterman Law Office, PLLC.” However, Ms. Peterman is apparently now part of RCO Legal based in Bellevue, WA, a different law firm than was allegedly retained by HSBC. The Nickersons request the Court require Proof of Authority that HSBC has now retained Erika R. Peterman of RCO Legal, P.S.

15. May God and the Court save our home. Prayer for Relief Paragraph D requests Nickersons “be forever barred and foreclosed of and from any right, claim, lien or equity of redemption in the Deeded Property, and that the purchaser or purchasers at the Foreclosure Sale be entitled to immediate possession of the Deeded Property as allowed by law subject only to such statutory right of redemption the Defendants may have by law.” It is inappropriate, intimidating and intentionally inflicting emotional distress upon the Nickersons to threaten to take away their redemption rights or even to mention it in the Complaint when HSBC knows by law they can not, would not, should not, and will not be able to take away the Nickersons redemption rights.  Redemption - MCA §§ 71-1-228 and 229, Intimidation - MCA § 45-5-203.

16. The Missing Statement. HSBC has failed to provide a Disclosure Statement in accordance with and as required by M.R.Civ.P. 7.1. Disclosure Statement. A nongovernmental corporate party must file and serve a disclosure statement with its first appearance, pleading, petition, motion, response or other request addressed to the Court. Therefore, HSBC must provide a disclosure statement or their complaint must be dismissed.

AFFIRMATIVE DEFENSES

17. In asserting their affirmative defenses, the Nickersons are in no way accepting, admitting, or conceding to any of HSBC’s allegations including that HSBC could possibly be the rightful, legal owner or holder of the Nickerson Note and Mortgage. The Nickersons are not guilty of, or liable for, any of the allegations made by the plaintiff, nor can any allegation made by the Plaintiff be plausibly redressed with this, or any Complaint, against the Nickersons. However, in the interest of fully defending this action against their property and their persons, the Nickersons would be remiss in their duties to defend themselves by not presenting their affirmative defenses against this cause of action.

FIRST AFFIRMATIVE DEFENSE

Preemption by Montana Law

18. The Nickersons assert HSBC does not have a certificate of authority from the Montana Secretary of State and therefore, because of Montana law, HSBC could not and can not “maintain a proceeding in any court in this state.” MCA § 35-1-1027. Consequences of transacting business without authority. “(1) A foreign corporation transacting business in this state without a certificate of authority may not maintain a proceeding in any court in this state until it obtains a certificate of authority.” HSBC cannot initiate this judicial action because they do not have a certificate of authority and their complaint should and must be dismissed.

SECOND AFFIRMATIVE DEFENSE

Plaintiff lacks standing to bring this Complaint.

19. “At an ‘irreducible constitutional minimum,’ standing is comprised of three elements: ‘an injury in fact,’ or an actual or imminent invasion of a concrete and particularized legally-protected interest; a causal connection between the injury and conduct complained of; and the likelihood that the injury will be redressed by a favorable decision.” Printz v. US, 854 F. Supp. 1503 (D. Mont. 1994). A “Movant must show that it has an interest in the relevant note, and that it has been injured by debtor’s conduct (presumably through a default on the note). Such is necessary to establish constitutional standing.” In re Wilhelm, 407 B.R. 392, 398 (Bankr. D. Idaho 2009).

20. The Nickersons assert HSBC did not at the time they began this action nor do they now have any right or standing to bring this complaint or assert the claims at issue.

21. The Nickersons assert any damages or injuries allegedly suffered or sustained by the Plaintiff is 1) the responsibility and sole liability of the Plaintiff, and is, in part and in whole, due to the causal effect of actions committed or actions omitted by the Plaintiff, and, or, by and through the servicer Wells Fargo, 2) cannot plausibly be redressed with any complaint or judgment against the Nickersons, and 3) as a matter of law, must be dismissed.

22. HSBC has suffered no injury as the result of any alleged default. By agreement, the servicer, Wells Fargo, is required to make the monthly payment in the event of any delinquency in order to keep the cash flow current in the trust and to protect the investment of the certificate holders. “12.4.1. Advance Responsibility During Delinquency. In the event of a Delinquency with respect to a Mortgage Loan, the Servicer 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.” EX-10.1 - Servicing Agreement. SEC file number 333-137620-12. Since the monthly payment is presumably, or should be, based on the presentations and representations of the Plaintiff, still being deposited into the trust, then the trust is suffering no injury. Therefore, HSBC has no injury and no standing, and this complaint must be dismissed.

23. The alleged trust agreements place the responsibility and authority to foreclose upon the servicer.  “13.1.1. Foreclosure/Alternative to Foreclosure Initiation. …the Servicer shall either begin the foreclosure process or suggest an alternative to foreclosure…” EX-10.1 - Servicing Agreement. SEC file number 333-137620-12. (See also HSBC Officer Christina Johnson’s letters, Affidavit of Nick Nickerson in Support of Motion for Summary Judgment, Exhibits A and B). By the agreement of the trust, if foreclosure proceedings are to occur, it is the servicers, not HSBCs, responsibility to foreclose. Therefore, HSBC does not have the authority to foreclose, and this complaint must be dismissed.

24. HSBC has no legal claim to the Note and Mortgage. The assignments by which HSBC is claiming ownership interest are void and unlawful. The illegal attempt of HSBC and Wells Fargo to transfer assets into the trust violate Internal Revenue Code (860) and are void according to New York trust law (EPTL § 7-2.4). “Under New York Trust Law, every sale, conveyance or other act of the trustee in contravention of the trust is void. EPTL § 7-2.4. Therefore, the acceptance of the note and mortgage by the trustee after the date the trust closed, would be void.” Wells Fargo Bank, NA v. EROBOBO, Id. Furthermore, the Plaintiff cannot without providing proof of ownership and possession of the original Note (indorsed to them) and Mortgage at the time this complaint was filed, and continuing until present, simply claim “the beneficial interest belongs to the Plaintiff.” The Plaintiff must prove their standing, by at a minimum, showing they have ownership and have been and are in possession of the original and properly indorsed Note and Mortgage, and have, in fact, suffered an injury. Any beneficial interest claimed must include ownership and possession of the Note and Mortgage. To not require this could and would place the Nickersons in jeopardy of facing a double or greater liability both now and in the future. Without the originals in hand, with the proper chain of indorsements, HSBC or any other unscrupulous entity that might come forward could sell and resell the rights to the Nickersons property again and again for unjust enrichment and gain as news reports and litigation has reported mortgage terrorists across America have done and are still doing. “From the maker’s standpoint, therefore, it becomes essential to establish that the person who demands payment of a negotiable note, or to whom payment is made, is the duly qualified holder. Otherwise, the obligor is exposed to the risk of double payment, or at least to the expense of litigation incurred to prevent duplicative satisfaction of the instrument. These risks provide makers with a recognizable interest in demanding proof of chain of title. Consequently, plaintiffs here, as makers of the notes, may properly press defendant to establish its holder status.” Kemp v. Countrywide Home Loans, Inc., 440 B.R. 624 (2010). Therefore, HSBC has no legal claim to the Note and Mortgage and their complaint must be dismissed.

25. HSBC has not demonstrated holder status of the Note. HSBC can not demonstrate holder status because they can not obtain ownership through a transaction that is void, and more specifically the Note they provided is not indorsed to them nor is it indorsed in blank. It is specially indorsed to Wells Fargo Bank, N.A. MCA § 30-3-204 Special Indorsement -- blank indorsement -- anomalous indorsement. “(1) If an indorsement is made by the holder of an instrument, whether payable to an identified person or payable to bearer, and the indorsement identifies a person to whom it makes the instrument payable, it is a ‘special indorsement’. When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the indorsement of that person…(3) The holder may convert a blank indorsement that consists only of a signature into a special indorsement by writing, above the signature of the indorser, words identifying the person to whom the instrument is made payable.” The entity written above the signature on this indorsement is Wells Fargo Bank, N.A. making this a special indorsement to Wells Fargo not HSBC. Furthermore, the Nickersons assert the signature of Joan M. Mills is robo-signed and forged. MCA § 30-3-307. Therefore, because the note is not indorsed to HSBC, HSBC is not and can not be considered the Note holder and this complaint must be dismissed.

26. HSBC is not the Note holder and they have suffered no injury. HSBC will not and cannot prove holder status because the assignments they rely on to claim holder status are void by law, and the Note is specially indorsed to Wells Fargo. In addition, HSBC, by agreement, does not have the authority to foreclose, and HSBC has suffered no injury. Therefore, HSBC lacks standing and cause to bring this action, and this complaint must be dismissed.

THIRD AFFIRMATIVE DEFENSE

Failure to join an indispensable party

27. The Nickersons assert according to the Note provided by HSBC, Joan M. Mills, Vice President, as an endorser on the Note must be joined as a necessary party to this action. The Note states in section 8. OBLIGATIONS OF PERSONS UNDER THIS NOTE “If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in the Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or endorser of this Note is also obligated to do these things. Any person who takes over these obligations, including the obligations of guarantor, surety or endorser of this Note, is also obligated to keep all of the promises made in this Note. The Note Holder may enforce its rights under this Note against each person individually or against all of us together. This means that any one of us may be required to pay all of the amount owed under this Note.” Therefore, HSBC has failed to join Joan M. Mills as an indispensable party. Furthermore, as a matter of record, the Nickersons assert Joan M. Mills signature is robo-signed, forged, and must be authenticated. MCA § 30-3-307.

FOURTH AFFIRMATIVE DEFENSE

Plaintiff’s Complaint fails to state a cause of action upon which relief may be granted.

28. The Nickersons assert the Complaint and each and every allegation thereof fails to state a claim, either in law or in fact, upon which any relief may be granted. 

29. The Nickersons assert HSBC has no documents, no note, no mortgage, no assignments, no default, no interest, no proof, which equals no beneficial interest, no ownership, no holder status and therefore, as HSBC has admitted, no right to enforce. HSBC’s only possible  grounds for Complaint is their alleged default, which the Nickersons contend was created by the servicer. Black’s Law Dictionary defines default as omission or failure to fulfill a duty, observe a promise, discharge an obligation, or perform an agreement. First, the Nickersons do not have an agreement with HSBC. Prior to this Complaint, the Nickersons did not know of HSBC and as a result of their research in defending this complaint, the only logical conclusion the Nickersons can come to is they still do not have an agreement with HSBC. Second, the Nickersons contend any default is a result of Wells Fargo and their failure to extend appropriate service, discretion, consideration and relief to the Nickersons. Wells Fargo obdurately refused to accept payments in order to unlawfully and unconscionably foreclose on this property and thereby steal the Nickersons equity and receive unjust enrichment as their reward. Wells Fargo unfathomably refused to allow the Nickersons opportunity to make regular periodic payments per the terms of the Note provided by the Plaintiff nor allow the Nickersons to cure any default caused by the actions of Wells Fargo. “12.1.3. Servicing Objectives. The Servicer must vary its collection techniques to fit individual circumstances, avoiding a fixed collection pattern which may be ineffective in dealing with particular Borrowers. 12.3.2. Servicer's Discretion. The Servicer shall have reasonable discretion to extend appropriate relief to Borrowers who encounter hardship and who are cooperative and demonstrate proper regard for their obligations.” EX-10.1 - Servicing Agreement. Id. Therefore, any alleged default was created by the refusal to receive payments by Wells Fargo, not by the failure to make payments by the Nickersons, and any default currently present is the fault and responsibility of Wells Fargo and their principals not the Nickersons. More clearly stated, if there is a default, Wells Fargo defaulted, not the Nickersons. Wells Fargo intentionally made it impossible for the Nickersons to cure any alleged default.  impotentia excusat legem - impossibility is an excuse in the law. MCA § 1-3-222. Impossibilities. “The law never requires impossibilities.” Therefore, HSBC has no cause of action upon which relief may be granted and this complaint must be dismissed. MCA § 28-1-1301. When delay or failure to perform or offer to perform excused. “(1) when such performance or offer is prevented or delayed by the act of the creditor”. MCA § 28-1-1302. Effect when performance prevented by creditor. “If the performance of an obligation is prevented by the creditor, the debtor is entitled to all the benefits that the debtor would have obtained if the obligation had been performed by both parties.” Therefore, since HSBC has prevented the Nickersons from performing their obligation, the Nickersons are entitled to all of the benefits of full performance of the obligation.

FIFTH AFFIRMATIVE DEFENSE

No Notice of Breach

30. The Nickersons assert the Note and Mortgage presented by the Plaintiff requires HSBC to provide a notice of any breach to the Nickersons, and allow a reasonable period of time for them to have the opportunity to remedy any such breach prior to the initiation of any legal proceedings. HSBC has failed to provide such notice or any other communication to the Nickersons except to state they do not have authority to foreclose. In section 20 of the Mortgage document presented by the Plaintiff (Complaint Exhibit B) the second paragraph states. “Neither borrower nor Lender may commence, join, or be joined to any judicial action (as either an individual litigant or the member of a class) that arises from the other party’s actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action.” Therefore, because HSBC did not provide any such required notice of breach, they are in breach of any alleged contract and have no right to action. HSBC is in breach of the Mortgage document they presented in this claim and are relying upon to establish their right to a cause of action against the Nickersons. Therefore, as a matter of law, their case should and must be dismissed.

SIXTH AFFIRMATIVE DEFENSE

No Breach By Defendant

31. The Nickersons assert they have no contract with, or obligation to, HSBC, nor have they breached any obligation or duty required of them. The Nickersons further assert they have performed all alleged duties that could legally or would ethically be owed under the alleged contract presented by HSBC, other than those directly or indirectly blocked by HSBC. HSBC, by and through the servicer Wells Fargo, blocked all attempts to prevent, resolve and cure any alleged default. Therefore, the Nickersons are not and can not be in breach of any obligation to the Plaintiff, and the Plaintiff’s claim should be dismissed. MCA § 28-1-1301. When delay or failure to perform or offer to perform excused. “The want of performance of an obligation or of an offer of performance, in whole or in part, or any delay therein is excused by the following causes, to the extent to which they operate: (1) when such performance or offer is prevented or delayed by the act of the creditor…”

SEVENTH AFFIRMATIVE DEFENSE

Inaccurate Accounting

32. The Nickersons assert HSBC’s accounting is inaccurate because they claim a default occurred beginning with the March 1, 2012, payment when, it is an irrefutable fact, the Nickersons made the March 1, 2012, payment on March 1, 2012. Because HSBC’s accounting is inaccurate, and cannot be relied on, they cannot claim a default and therefore, they have no basis for a claim at all. A “Movant must show that it has an interest in the relevant note, and that it has been injured by debtor’s conduct (presumably through a default on the note). Such is necessary to establish constitutional standing.” In re Wilhelm, 407 B.R. 392, 398 (Bankr. D. Idaho 2009). Furthermore, both RESPA and Montana statutes require the claimant to have accurate records. RESPA Regulation X - 12 C.F.R §1024.38 requires servicers to “(iv) Provide owners or assignees of mortgage loans with accurate and current information and documents about all mortgage loans they own;” MCA § 32-9-170 (1) requires servicers to “safeguard and account for any money handled for the borrower.” Because HSBC cannot provide accurate account records, they have no basis for, or claim to, any alleged default, and HSBC’s claim should and must be dismissed.

EIGHTH AFFIRMATIVE DEFENSE

Failure to Mitigate Damages – the doctrine of avoidable consequences

(its basis is common law doctrine)

33. The Nickersons assert HSBC has failed to take reasonable steps or exercise reasonable care to reduce, minimize, or mitigate any damages, injuries or loss they allegedly suffered.

a.       HSBC, if in fact they were, should have notified the Nickersons they were their New Creditor, so the Nickersons would have known who to contact to resolve any alleged default.

b.      HSBC should have accepted payments instead of refusing them. This would not only have reduced the damage, but eliminated it altogether.

c.       HSBC should have communicated with the Nickersons to discover the cause of the alleged default and to provide opportunity to negotiate a reasonable cure for the alleged default.

d.      HSBC should have initiated resolution attempts prior to initiating and pursuing foreclosure.

34. Since HSBC has failed to mitigate any alleged damages or injuries, they are, based on common law and the doctrine of avoidable consequences, responsible for their current state. Therefore, HSBC’s complaint and any alleged damages or injuries are of their own making and their complaint should be dismissed and they take nothing thereby.

NINTH AFFIRMATIVE DEFENSE

Contributory Negligence

35. HSBC, independently, and, by and through the servicer Wells Fargo, was negligent in their duties, obligations, and responsibilities under the alleged contract, because, among other negligent actions, they refused to accept the periodic payments the Nickersons were attempting to pay and denied all attempts by the Nickersons to reinstate the loan after the unfounded and unreasonable acceleration. Further, HSBC failed to verify the facts leading to the commencement of this action and follow their obligations in pursuing it. HSBC contributed all negligence that created any basis for this foreclosure claim, and they have no right to action in this case. Therefore, the Nickersons assert any alleged injuries, damages or losses claimed or suffered by the Plaintiff are the responsibility of, or were caused by, the sole, and or, contributory negligence of the Plaintiff, and or other persons, parties, and or entities, not the Nickersons, and any requested relief in favor of the plaintiff should be denied. MCA § 27-1-702.

TENTH AFFIRMATIVE DEFENSE

Conditions Precedent

36. MCA § 28-1-403. Condition precedent defined. “A condition precedent is one which is to be performed before some right dependent thereon accrues or some act dependent thereon is performed.”

37. Condition Precedent 1. HSBC, through the servicer Wells Fargo, was to accept payments from the Nickersons. Wells Fargo failed to accept payments from the Nickersons when the Nickersons were willing, tried and had the financial wherewithal to make the payments. Wells Fargo would not permit the Nickersons to prevent, resolve or cure any alleged default that resulted from Wells Fargo refusing to accept payments. HSBC has never given the Nickersons opportunity to make payments. Therefore, HSBC, by, through, and in addition to the servicer Wells Fargo, violated the condition precedent to accept payments, and consequently has no right to action in this case and their claim should and must be dismissed.

38. Condition Precedent 2. HSBC, through the servicer Wells Fargo, was to and should have allowed the Nickersons to exercise their right to reinstate after acceleration. Wells Fargo refused to allow the Nickersons to reinstate when the Nickersons were willing, tried and had the financial wherewithal to do so. Wells Fargo would not permit the Nickersons to prevent, resolve or cure any alleged default that resulted from Wells Fargo refusing to accept payments, nor allow the Nickersons to pay the amounts requested to reinstate the loan. Therefore, HSBC, by, through, and in addition to the servicer Wells Fargo, violated the condition precedent to accept payments and allow the Nickersons to reinstate their loan. Consequently, HSBC has no right to action in this case, and their claim should and must be dismissed.

ELEVENTH AFFIRMATIVE DEFENSE

Prevention of Performance

39. The Nickersons assert HSBC prevented the Nickersons from performing by refusing to accept payments, thereby excusing the Nickersons from performance and entitling the Nickersons to all the benefits of full performance. MCA § 28-1-1301. When delay or failure to perform or offer to perform excused. “(1) when such performance or offer is prevented or delayed by the act of the creditor”. MCA § 28-1-1302. Effect when performance prevented by creditor. “If the performance of an obligation is prevented by the creditor, the debtor is entitled to all the benefits that the debtor would have obtained if the obligation had been performed by both parties.” Since HSBC directly, and, or indirectly, prevented performance by the Nickersons, the Nickersons are entitled to all of the benefits of full performance, and HSBC’s complaint must be dismissed.

TWELFTH AFFIRMATIVE DEFENSE

Waiver

40. HSBC has waived their right to bring this complaint due to the facts 1) they refused to accept payments, 2) failed to extend appropriate relief when the Nickersons encountered hardships and were cooperative and demonstrated proper regard for their obligations, and 3) did not notify the Nickersons they were their alleged new creditor. MCA § 28-1-1302 Effect when performance prevented by creditor. “If the performance of an obligation is prevented by the creditor, the debtor is entitled to all the benefits that the debtor would have obtained if the obligation had been performed by both parties.” and 15 USC § 1641(g) Notice of New Creditor. Therefore, HSBC has waived their right to bring a complaint and their complaint must be dismissed.

THIRTEENTH AFFIRMATIVE DEFENSE

Mortgage Fraud

41. The Nickersons assert the Mortgage document presented by HSBC, is forged, fraudulent and should be considered and acknowledged void due to the serious and unlawful flaws, adhesion, unconscionability, and illegal clauses, in the language, intent, and presentation in and of the document. Further investigation of the original documents may reveal additional fraud associated with this Mortgage, and the Nickersons reserve the right to insert additional evidence, amend this defense or supplement this answer with additional defenses as needed to ensure justice is served and their rights are preserved and protected.

a.       In the definitions section on page 1, paragraph (B) defines “Borrower” as NICK NICKERSON AND DONNA NICKERSON, husband and wife, and states, “Borrower is the trustor under this Security Instrument.” Under a mortgage the Borrower is the mortgagor not the trustor. Interestingly enough, however, the document correctly defines the Lender in paragraph (C) as the mortgagee.

b.      At the bottom of page 2 the document states, “Borrower irrevocably grants and conveys to Trustee, in trust, with power of sale”. A mortgage does not have a trustee nor does this Mortgage define or identify one. Therefore, the Borrower is not conveying the property in trust to anyone and this power of sale clause is of no effect and is not binding on the Nickersons as the Mortgagor. Therefore, HSBC cannot rightfully or legally have any cause of action or right of relief.

c.       On page 3, in the TRANSFER OF RIGHTS IN THE PROPERTY section, the address is incorrect.

d.      On page 15 section 22. Acceleration. Remedies states, “If Lender invokes the power of sale, Lender shall give written notice to Trustee…” This paragraph and the rest of the paragraphs in section 22 describe the activities that take place in association with a Trustee’s sale. There is no Trustee defined or identified in this document nor would or should there be one. This is a mortgage not a deed of trust or trust indenture, and therefore, this language is null, void and of no effect, and invalidates the document as whole.

e.       On page 16 section 23. Reconveyance speaks again of a Trustee which would only apply to a deed of trust and should not and can not legally be in this document. This section demonstrates how adhesive, outrageous, unconscionable, and fraudulent this Mortgage document is because the property could never be reconveyed because no trustee exists to convey the property to the Nickersons upon fulfillment of the obligations under the Note and Mortgage. In addition, this section demonstrates unfair, unjust and deceptive intentions to assume and retain an inequity of rights at the cost, expense and loss of the Nickersons.

f.       On page 16 section 24. Substitute Trustee is another section referencing a trustee and should not be included in a mortgage document as there is no Trustee associated with a mortgage.

g.      On page 16 section 25. Area of Property states “The area of the Property is not more than 40 acres.” The Nickersons property is over 200 acres. Clearly, this section is fraud and voids the entire document. “fraud vitiates the contract from its inception” Moschelle v. Hulse, 190 Mont. 532, 622 P.2d 155 (1980) “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).

h.      On page 16 section 26. Waiver of Homestead Exemption Rights “…or in the event of a sale pursuant to the provisions of the Montana Small Tract Financing Act.” The Nickersons property is over 200 acres. It does not qualify for and is not governed by the Montana Small Tract Financing Act. MCA § 71-1-302.

42. The Mortgage document was intentionally, deceptively and fraudulently crafted and altered without the express written consent of Freddie Mac. In fact, on jumbo loans, such as the Nickersons, Freddie Mac states loan originators can use the Uniform Instruments “so long as the loan instrument is not altered” (See Uniform Instruments Frequently Asked Questions – Freddie Mac, attached as Exhibit A question 15). This instrument was altered with the obvious objective to exploit, defraud and mislead the Nickersons, the Court and any potential investor. MCA § 32-9-124. Prohibitions -- required disclosure. “(1) A mortgage broker, mortgage lender, mortgage servicer, or mortgage loan originator may not do any of the following: (b) directly or indirectly employ any scheme to defraud or mislead a borrower, a mortgage broker, a mortgage lender, a mortgage servicer, or any other person”.

43. “Fraud vitiates the contract from its inception” Moschelle v. Hulse, Id.

44. Therefore, since the Mortgage document was, among other things, intentionally crafted to contain inaccurate and fraudulent language, to deceive the Nickersons, and to mislead the investors as to the marketability of it, it is a void instrument, and not enforceable. HSBC has no right to action, and their claim should and must be dismissed.

FOURTEENTH AFFIRMATIVE DEFENSE

Inequitable Agreement

45. The Nickersons assert the Plaintiff is not permitted to profit from its own inequity, unfairness and unjustness. The Mortgage document presented constitutes an inequitable agreement. Specifically, the Mortgage document attempts to take away the Nickersons right to have a Mortgage as the security instrument. The Nickersons’ property is over 200 acres and this document mischaracterizes it by stating it is 40 acres or less. The language contained within the document is typically used in a deed of trust or trust indenture in the context of the Montana Small Tract Financing Act which gives the false and unlawful impression that one could foreclose on this property non-judicially with no right of redemption which makes this mortgage more marketable to investors. Therefore, because this Mortgage document is attempting to take away all of the rights and privileges of a mortgage and replace them with the language and intent of a deed of trust this constitutes an inequitable agreement and HSBC’s claims must be dismissed.

FIFTHTEENTH AFFIRMATIVE DEFENSE

Unconscionability

46. “Unconscionability requires a two-fold determination: that the contractual terms are unreasonably favorable to the drafter and that there is no meaningful choice on the part of the other party regarding acceptance of the provisions.” Summers v. Crestview Apartments, 2010 MT 164, 357 Mont. 123, 236 P.3d 586 (2010).

47. The Nickersons assert the Mortgage document presented by the Plaintiff is unconscionable and therefore should, as a matter of law, be dismissed. MCA §§ 28-2-701, and 707.

a.       The Mortgage is unconscionable in that it attempts to waive rights to which the Nickersons are entitled by law. MCA § 71-1-228.

b.      The Mortgage is unconscionable in that it seeks to have the Nickersons waive rights such as notices mandated by federal law.

c.       The Mortgage is unconscionable in that it provides unequal equity and authority to the parties. It calls the Nickersons a trustor instead of a mortgagor, which is language that would be used to describe the borrower in a deed of trust. However, it calls Wells Fargo the mortgagee, which would be the language used to describe the lender in a mortgage. This creates extreme inequality in the rights of the two parties.

d.      The Mortgage is unconscionable in that it fraudulently attempts to place the restrictions of a deed of trust on the Nickersons which are in direct violation of common law and Montana law. MCA § 71-1-302.

e.       The Mortgage is unconscionable in that it fails to define or identify a trustee yet in its deceptive scheme to create unlawful deed of trust restrictions on the Nickersons Mortgage, indicates the trustee is who will provide clear ownership of the property to the Nickersons upon the satisfaction of the loan, thus creating a contract that cannot be lawfully, rightfully, morally or ethically fulfilled.

f.       The Mortgage is unconscionable in that it calls the Nickersons the trustor instead of a mortgagor and attempts to place the restrictions of a deed of trust on the Nickersons, which is in direct violation of common law and Montana law.

g.      The Mortgage is unconscionable in that it seeks to have the Nickersons waive their rights to due process prior to entry upon the land they own.

h.      The Mortgage is unconscionable because it is clearly a contract that was crafted and intended to deceive. This document utilizes a deed of trust document, Montana-Single Family-Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Form 3027 (a standardized form as evidenced by the footer at the bottom of the page). Changing the title to read “MORTGAGE” without providing the significantly and substantially different rights and privileges that would, should and must be a part of a mortgage, not only in Montana, but anywhere in the nation, was deceptive and misleading to the Nickersons and any other person who might eventually have interest in these documents.

i.        The Mortgage is unconscionable in that it is clearly a document of adhesion. In ¶23 of Summers v. Crestview, Id, the Supreme Court of Montana recognized that a variety of standardized forms of agreement are contracts of adhesion – a directory advertising order, an investment contract, an employment contract and a purchase contract. These were all standardized contracts that the client could not change and had to accept if they wanted to do business with that company. Wells Fargo presented mortgage documents to the Nickersons with verbiage and terms the Nickersons had to agree to if the Nickersons were to purchase this property through Wells Fargo. The Nickersons were not represented by counsel and relied solely on the presentation and representation of the Wells Fargo loan specialist, the closing agent and their previous dealings and knowledge of Wells Fargo, that their investment and interests were being protected. Attempting to unlawfully embezzle property rights from the Nickersons on an over 200 acre property by “cleverly” and deceptively utilizing a document wearing the cloak of mortgage, when it was clearly intended to be a deed of trust for a property that was 40 acres or less is not only unconscionable, but clearly demonstrates the intention to fraud and defraud the Nickersons.

j.        The Mortgage is unconscionable in that it violates the Nickersons prior knowledge and the established reputation of Wells Fargo of being the friendly, neighborhood bank who the Nickersons could trust to protect and secure their investments and interests. Based on the “at that time” reputation of Wells Fargo, the Nickersons nor any reasonable person would have or presumably should have questioned or been suspicious of the integrity, validity or intention of loan documents drafted by Wells Fargo. Certainly it would have been reasonable for an investor who was familiar with Wells Fargo (a $40 billion value just in their brand name) or the Nickersons (a private banking customer with 13+ years of significant banking interaction with Wells Fargo) to trust any representation by Wells Fargo as to the type of security instrument used, size of the property, correct legal verbiage, etc. It is unconscionable that Wells Fargo in order to gain unjust enrichment would put their good name in jeopardy and forsake the well developed, mutually respected and trusted financial relationship they had established with the Nickersons.

48. This unconscionable Mortgage is unquestionably more favorable to Wells Fargo because they could represent this mortgage document to potential buyers and investors in such a way that they could easily believe they were investing in a property that was covered by a deed of trust or trust indenture as defined in the Montana Small Tract Financing Act, which, as the act itself indicates, would be more attractive to the buyers and investors than the traditional and lawful mortgage. MCA § 71-1-302. Policy. “Because the financing of homes and business expansion is essential to the development of the state of Montana and because financing of homes and business expansion, usually involving areas of real estate of not more than 40 acres, has been restricted by the laws relating to mortgages of real property and because more financing of homes and business expansion is available if the parties can use security instruments and procedures not subject to all the provisions of the mortgage laws, it is the public policy of the state of Montana to permit the use of trust indentures for estates in real property of not more than 40 acres as provided in this part.” Therefore, the Mortgage presented by HSBC is clearly one of adhesion, is unconscionable and is unenforceable, and thus, HSBC has no right to action and their complaint should and must be dismissed. 

SIXTEENTH AFFIRMATIVE DEFENSE

Illegality bars the Plaintiff’s claim.

49. ex maleficio non oritur contractus - a contract cannot arise out of an illegal act

50. The Nickersons assert illegality bars HSBC’s claim. The assignments of mortgage HSBC uses to claim ownership of the loan documents pertaining to the Defendant’s property are illegal according to New York trust law (EPTL § 7-2.4), case law (see below) and Internal Revenue Code (860) and are thereby declared void. These assignments attempt to assign the loan documents to HSBC on April 10, 2010, and August 22, 2012, which is after the closing date of the trust May 30, 2007, which is in contravention to the trust agreements and are declared void by law. Therefore, HSBC has no legal claim to ownership and the Complaint must be dismissed. “Under New York Trust Law, every sale, conveyance or other act of the trustee in contravention of the trust is void. EPTL § 7-2.4. Therefore, the acceptance of the note and mortgage by the trustee after the date the trust closed, would be void.” Wells Fargo Bank, NA v. EROBOBO, Id.

51. As a result of and in order to effectuate the violating of New York trust laws, HSBC and Wells Fargo engaged in the following criminal actions as well:

a.       Forgery – MCA § 45-6-325 defines forgery.

b.      Forgery committed – Montana Criminal Code Title V –  OF CRIMES AFFECTING PUBLIC TRUST, Sub-title II – OF FORGERY OF OTHER PUBLIC OR PRIVATE WRITINGS, Sections 183, 186, and 189.

c.       Recorded false and forged instruments in the county records – Montana Penal Code, Part I, Title VII, Chapter 4, Section 232.

52. Therefore, since HSBC has broken the law, they have no right of action, their complaint is barred and must be dismissed.

SEVENTEENTH AFFIRMATIVE DEFENSE

Estoppel

53. HSBC Officer Christina Johnson stated in two letters to the Nickersons that due to the agreements that govern the trust it is the responsibility of the servicer to foreclose (See Affidavit of Nick Nickerson in Support of Motion for Summary Judgment, Exhibits A and B). “13.1.1. Foreclosure/Alternative to Foreclosure Initiation. …the Servicer shall either begin the foreclosure process or suggest an alternative to foreclosure…” EX-10.1 - Servicing Agreement, Id. Therefore, HSBC is barred by the principle of estoppel from foreclosing on the Nickersons and their claim should and must be dismissed due to the agreements that govern the trust and their representation to the Nickersons that they do not have the legal authority to foreclose.

EIGHTEENTH AFFIRMATIVE DEFENSE

General Duty of Care

54. MCA § 28-1-201. General duty of care. “Every person is bound, without contract, to abstain from injuring the person or property of another or infringing upon any of another person’s rights.” HSBC has violated this obligation by their use of fraud, deceit, and misrepresentation throughout this proceeding thereby injuring the Nickersons both financially and emotionally and hampering the Nickersons efforts to defend this unlawful action. HSBC has not protected the Nickersons rights, but rather has injured the Nickersons and infringed on their rights by pursuing this fraudulent foreclosure without 1) verifying if or why an alleged default existed; 2) making prudent and reasonable efforts to abstain from any unfounded or unnecessary actions that would unduly injure or damage the Nickersons; or 3) offering any dialogue opportunities, proposed conflict resolution or other settlement propositions that could effect an ending to this wholistic life threatening assault on the Nickersons prior to and in lieu of pursuing a foreclosure action. By violating our property boundaries, refusing payments, crafting invalid assignments, injuring our title, threatening our property rights, and infringing on our personal, financial and property rights the Nickersons have suffered significant and substantial injuries, damages and loss. Therefore, the Nickerson assert HSBC has failed to fulfill their obligations of general duty of care and their claim should and must be dismissed.

NINETEENTH AFFIRMATIVE DEFENSE

No Injury to Plaintiff

55. The Nickersons assert HSBC has not suffered or experienced, nor could they suffer or experience, any injury or damage as a result of any alleged default by any act, omission of act, action or non-action of the Nickersons. HSBC in their letters to the Nickersons allude to agreements that establish the trust (See Affidavit of Nick Nickerson in Support of Motion for Summary Judgment, Exhibits A and B). The same agreement HSBC references in their letters that requires the servicer to be the party responsible for foreclosure also requires the servicer to make the appropriate payments to the trust in the event of default so the trust will not have any negative effects of a loan in default. Therefore, HSBC has no injury or damage as the result of any alleged default. “12.4.1. Advance Responsibility During Delinquency. In the event of a Delinquency with respect to a Mortgage Loan, the Servicer 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.” EX-10.1 - Servicing Agreement. SEC file number 333-137620-12. If HSBC is in fact the Trustee, as they claim to be, they can suffer no damage by default, and therefore, have no injury or right to any action against the Nickersons, and their claim must be dismissed.

TWENTIETH AFFIRMATIVE DEFENSE

Unclean Hands

56. The Nickersons assert HSBC has unclean hands, among other dirty reasons, because they have broken New York trust laws (EPTL § 7-2.4) and Internal Revenue Code (860) by attempting to convey assets into their trust after the closing date. This current action is a by-product of HSBC’s unlawful attempt to convey assets into the trust. “Under New York Trust Law, every sale, conveyance or other act of the trustee in contravention of the trust is void. EPTL § 7-2.4. Therefore, the acceptance of the note and mortgage by the trustee after the date the trust closed, would be void.” Wells Fargo Bank, NA v. EROBOBO, Id. In addition, HSBC has broken, at a minimum, the following laws: 1) HSBC along with their accomplices have caused fraudulent and forged instruments to be recorded in the land records of Lewis and Clark County, Montana which constitutes criminal activity and violates Montana Penal Code, Part I, Title VII, Chapter 4, Section 232. 2) HSBC has violated the Truth in Lending Act and Helping Families Save Their Homes Act of 2009, in part, by not providing Notice of New Creditor to the Nickersons and by unfair lending practices. 3) HSBC has violated Montana’s Consumer Protection Act MCA § 30-14-103. 4) HSBC has violated MCA § 28-1-201. General duty of care. As a result of HSBC’s multiple violations of the law and public policy, they have forfeited any and all rights to action in this case. Therefore, this case should and must be dismissed, and they should and must get their unclean hands off the Nickersons and their property.

TWENTY-FIRST AFFIRMATIVE DEFENSE

Lack of Privity

57. According to Black’s Law Dictionary, “the term privity means mutual or successive relationship to the same rights of property…Privity of contract is that connection or relationship which exists between two or more contracting parties.” The Nickersons assert there is no contractual relationship between HSBC and the Nickersons because HSBC is not the creditor and has provided no legal or verifiable proof to establish that HSBC is the owner and holder of the original Note and Mortgage. Therefore, HSBC’s complaint must be dismissed.

TWENTY-SECOND AFFIRMATIVE DEFENSE

Abuse of Service Process

58. The Nickersons assert HSBC’s process server, assumedly hired by opposing counsel, trespassed onto the Nickersons property by climbing over a locked gate, crossing no trespassing and private property notices, walking up our long private driveway, climbing stairs to a second story entrance to our home, knocking on our door, and unraveling and violating the previously believed safety and security of the entire Nickerson family. No phone calls, letters or other attempts of contact were made prior to the flagrant violation of our property boundaries. This constitutes criminal trespass based on well established and longstanding laws and Montana public policy - MCA § 45-6-203. It also violates MCA § 28-1-201 in that it injures the Nickersons and infringes on their rights of privacy. Therefore, HSBC’s claim should and must be dismissed.

TWENTY-THIRD AFFIRMATIVE DEFENSE

FRAUD

59. ex dolo malo actio non oritur - a right of action cannot arise out of fraud

60. Black’s Law Dictionary defines Fraud as: 1) A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. 2) A misrepresentation made recklessly without belief in its truth to induce another person to act. 3)  A tort arising from a knowing misrepresentation, concealment of material fact, or reckless misrepresentation made to induce another to act to his or her detriment. 4) Unconscionable dealing; especially in contract law, the unfair use of the power arising out of the parties’ relative positions and resulting in an unconscionable bargain. And Black’s defines defraud to deprive a person of property or any interest, estate, or right by fraud, deceit, or artifice.

61. The Nickersons assert HSBC has, at a minimum, committed fraud in the following ways:

a.       By pursuing this illegal foreclosure action using assignments that are void by law and fraudulent in both timing and content.

b.      By informing the Nickersons that HSBC is not responsible for foreclosure yet pursuing foreclosure as the Plaintiff in this case.

c.       By concealing the true chain of title to the Nickersons Note, Mortgage and property.

d.      By using a fraudulent Mortgage that states the area of the property is 40 acres or less when the property is more than 200 acres, labels the Borrower as a trustor instead of mortgagor, references the power of sale provision in light of a Trustee’s sale, and is governed by the Montana Small Tract Financing Act. In essence, the Mortgage document provided by HSBC contains the language and provisions of a Deed of Trust which constitutes fraud.

e.       By attempting to misconstrue the Nickersons Mortgage as a Deed of Trust in the context of the Montana Small Tract Financing Act which cannot legally or possibly be used on an over 200 acre property. MCA § 71-1-302. Policy.

f.       The Mortgage document HSBC has presented is unconscionable. It is a standard form that has been unjustly and deceptively altered without required permission to give the impression to the Nickersons that they were receiving a Mortgage, when in reality the language and intent of the document applies to a Deed of Trust or Trust Indenture and is meant to apply and be enforced under the Montana Small Tract Financing Act. The way in which this standard form was altered is prohibited by Freddie Mac and is clearly fraud, deception, misrepresentation and unconscionable.

g.      The Mortgage contract presented by HSBC is clearly one of adhesion that was crafted with the intent to deceive the Nickersons, or any other person who might have or ever seek to have interest in the Nickersons’ property into believing it to be a standard mortgage contract. This document utilizes a deed of trust instrument, Montana-Single Family-Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Form 3027 (a standardized form as evidenced by the footer at the bottom of the page, whose contents are not supposed to be altered without authorized permission by Freddie Mac). It is a standard form, fraudulently, intentionally and deceptively altered, to be titled a “MORTGAGE”. Yet, this contract contains deed of trust language which significantly diminishes the rights and power of a mortgage, while circumventing the critically different laws, codes and regulations that a mortgage has and is subject to. (This is true not only in Montana, but on a National scale.) Further, a mortgage/deed of trust combination is neither a mortgage, a deed of trust, nor would this contract even qualify as a deed of trust indenture, thereby making this document null, void, unlawful, adhesive and unconscionable. Despite any concerns or objections the Nickersons might have noted or raised at closing, if the Nickersons wanted to close on their property, this document, which is illegal by law, is what the Plaintiff is presenting was the document the Nickersons would have to sign or forfeit the purchase of their property. The Nickersons were not represented by counsel in the purchase of this property, but relied on the presentation and representation by the Wells Fargo loan specialist, closing agent and their previous knowledge of and experience with Wells Fargo to secure their investment and interests. Therefore, the mortgage contract presented by HSBC is one of adhesion, constitutes fraud, is and must be null and void, and cannot be used to establish any right of action in favor of the Plaintiff. ex turpi causa non oritur actio – an illegal contract cannot be enforced. MCA § 28-2-701.

62. The Plaintiff, HSBC, is defrauding the Nickersons, the Court and the investors in their trust by pursuing this illegal foreclosure action. HSBC has knowingly misrepresented truth and defended their standing to bring this case before the Court based on assignments that misrepresent a true and legal transfer of rights on the Nickersons property and have concealed the material facts surrounding their fabrication in order to foreclose upon the Nickersons property.

63. As the Trustee for Wells Fargo Asset Securities Corporation, Mortgage Pass-Through Certificates Series 2007-7 Trust, HSBC represents they have personal knowledge of the trust and the rules and guidelines surrounding it, and that they assume complete oversight and responsibility to understand those rules and guidelines and see those laws governing the trust are followed. HSBC clearly knew the trust was closed and that nothing could be conveyed into or out of it. By allegedly accepting the Nickersons Note and Mortgage by assignment from Wells Fargo in April of 2010 and August of 2012 (three years and five years after the closing date of the trust) they violated the trust agreement and the assignments are void and of no effect. EPTL § 7-2.4 Act of trustee in contravention of trust. “If the trust is expressed in the instrument creating the estate of the trustee, every sale, conveyance or other act of the trustee in contravention of the trust, except as authorized by this article and by any other provision of law, is void.” Furthermore, the documents HSBC signed which govern the Trust specifically prohibit them from doing anything to jeopardize the REMIC status of the trust which they have allegedly done by accepting the Note and Mortgage after the closing date of the trust.  “Section 8.13 Tax Matters; Compliance with REMIC Provisions. (a) Each of the Trustee and the Master Servicer covenants and agrees that it shall perform its duties hereunder in a manner consistent with the REMIC Provisions and shall not knowingly take any action or fail to take any other action that would (i) affect the determination of the Trust Estate's status as a REMIC; or (ii) cause the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on either the REMIC or the Trust Estate.” EX-4.1 - Pooling and Servicing Agreement, Id. In addition, HSBC and Wells Fargo in their assignments do not adhere to the provisions and specifications set forth in the trust agreements. Section 2.01(d) of the Pooling and Servicing Agreement states “Except where assignments in blank are authorized or in the case of any mortgage registered in the name of MERS, assignments of any mortgage shall comply with the following: HSBC BANK USA, NATIONAL ASSOCIATON, AS TRUSTEE its successors and assigns.” EX-4.1 - Pooling and Servicing Agreement, Id. The assignments dated April 10, 2010, and August 22, 2012, label the assignee as HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee for Wells Fargo Asset Securities Corporation, Mortgage Pass-Through Certificates, Series 2007-7 which is clearly different than the requirements set forth in the trust agreements. HSBC, in conspiracy with Wells Fargo and other principals, has misrepresented their standing based on void assignments in order to induce this Court to foreclose on the Nickersons property and to recklessly attempt to create cause for the Nickersons to ignorantly accept this action as a lawful foreclosure. HSBC committed this representation recklessly without belief in its truth to induce the Nickersons, this Court and the world at large to act based on the fraud they perpetrated.

64. It is unconscionable that HSBC can attempt to foreclose upon the Nickersons and not even provide proof they own the note, nor provide proof of default, claim they do not have the authority to foreclose, seek to foreclose on a property for which they have no beneficial interest, seek to defraud the Court and the Nickersons by using a fraudulent Note and Mortgage and void assignments to attempt to establish a false beneficial interest in the property, seek to foreclose when the alleged default is not harming, injuring or damaging them in any way, and seek to foreclose when they know that even if they could somehow prove some standing, they would still be in breach of contract, trust laws, case laws, Internal Revenue Code and good faith and fair dealing.

65. HSBC’s knowing misrepresentations and deliberate concealment of material facts surrounding critical issues such as standing, default, origination and authenticity of loan documents, creation and handling of assignments, and falsely assigned beneficial interests threaten to and do in fact injure the Nickersons with the theft of the use, enjoyment and benefits of their home, family homestead, life savings, substantial accumulated investment and equity, and benefits and rights of home ownership. It is an unfounded assault on their personal, professional and financial reputation, relationships, rights and assets. MCA § 27-1-106.  Injury defined. (1) An injury is of two kinds: (a) to the person; and (b) to property. (2) An injury to property consists in depriving its owner of the benefit of it, which is done by taking, withholding, deteriorating, or destroying it.  Every other injury is an injury to the person. “Montana cases had allowed for the recovery of damages for emotional distress when the underlying action was injury to real property, the Court ‘[held] that damages for mental anguish are recoverable in a negligence action where the claim is that the defendant has interfered with the use and enjoyment of plaintiff’s land’…” Sacco v. High Country Independent Press, 271 Mont. 209, 896 P.2d 411 (1995).

66. fraus ominia vitiates – fraud vitiates everything. “fraud vitiates the contract from its inception” Moschelle v. Hulse, Id.  “fraud vitiates every transaction and all contracts.” Jenkins v. Hillard, Id. Because HSBC has committed fraud against the Nickersons and this Court they have no cause of action and their claim should and must be dismissed with prejudice.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

TRUTH

67. Under the Laws of Commerce, truth is sovereign.

68. The Nickersons assert HSBC can not, shall not, and will not ever be able to prove ownership interest in the Nickersons Note and Mortgage because of the void assignments, fraudulent mortgage, improperly indorsed note, no injury or harm sustained, unfair, unjust, unlawful, and predatory lending practices, and the webs of deception and concealment they have purposefully created to hide truth. Therefore, HSBC is barred by truth because they have none to present and their claim should and must be dismissed with prejudice.

ADDITIONAL AFFIRMATIVE DEFENSES

As needed for justice to be served

69. Since the facts of this case are still being discovered, and the Nickersons are still trying to learn how to find, read and apply applicable laws, codes, regulations and cases, and to find, uncover, investigate, prove and report the illegality of actions committed by HSBC and the other principals, the Nickersons reserve and request the right to assert additional affirmative defenses, amend these affirmative defenses, or supplement these affirmative defenses, as needed for justice to be served if so discovered throughout this process.

THE RESPONSIBILITY OF HSBC

70. By asserting to be the alleged holder and claiming the right to judicially foreclose on the Nickerson property as Plaintiff in this legal action, HSBC admits and assumes full responsibility, liability, guilt and consequence, whether intentionally or negligently caused by HSBC directly or through joint venture, of the actions and inactions of all principals and accomplices, from loan origination to the present and continuing on until final resolution, who have conspired to create, craft, forge, scheme, misrepresent, deceive, or otherwise commit illegal, unlawful, void and unenforceable instruments, security or other interests in the Nickerson property. Further, as plaintiff in this legal action, HSBC admits and assumes full responsibility, liability, guilt and consequence, whether intentionally or negligently caused by HSBC directly or through joint venture with other principals or accomplices, for the resulting significant, substantial and far reaching damages, losses and injuries suffered by the Nickersons.

PRAYER FOR RELIEF

domus sua cuique est tutissimum refugium – to everyone his house is his safest refuge

Wherefore, the Nickersons pray for relief and request judgment of this court as follows:

1. HSBC’s claim to be dismissed with prejudice and that it take nothing thereby;

2. For an entry of satisfaction of mortgage;

3. For HSBC to restore the Nickersons’ credit to its previous standing;

4. For return of monies collected under fraudulent misrepresentation;

5. For actual and consequential damages;

6. For statutory damages;

7. For emotional damages due to the intentional, negligent, and outrageously fraudulent attempt of the Plaintiff to illegally steal our ranch from us, our children, our heirs, and others who would find refuge in its enjoyment;

8. For punitive damages against the Plaintiff for their intentional and malicious attempt to fraudulently foreclose on the Nickersons sufficient to discourage illegal foreclosure actions in this state;

9. For an award of all attorney and compensatory legal reparation fees and costs necessarily incurred herein by the Nickersons defending this action pro se;

10. For compensatory damages;

11. For treble damages in accordance with MCA § 30-14-133; and

12. For such other and further relief as the Court deems just and equitable.


HSBC did not respond to our motion to amend within the timeframe provided by the Rules of Civil Procedure. Therefore, according to the rules, and according to our inquiries of the Court, our motion to amend was deemed admitted and our amended pleadings were accepted.

In accordance with the schedule, we filed our witness and exhibit lists on April 21, 2014. HSBC did not file a witness or exhibit list. We asked for the Court to compel HSBC to give us something. We informed the Court that HSBC and Wells Fargo had both denied involvement in this foreclosure and without witness or exhibit lists we had no way to effectively conduct discovery or idea of who to conduct it against. The Court told us HSBC’s failure to disclose these lists per the scheduling order clearly meant we could object to HSBC being allowed to present these witnesses and exhibits later. Not being able to correct these errors would defeat their case. We were told by the Court the proper time to address these concerns was at the pre-trial conference.
 
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We continued to conduct discovery.

During this time and continuing to the present, in trying to demonstrate due diligence, we continued to conduct research on any entity or person that appeared to be involved in our loan, the assignment of our loan, or who had any part of this systematic attack on our financial portfolio – HSBC; Wells Fargo NA; Wells Fargo Home Mortgage; Wells Fargo Home Equity; Wells Fargo Assets Security Corporation; Wells Fargo Robo-Signing Mill at 1000 Blue Gentian Road, Eagan, MN; Erika Peterman; Peterman Law; RCO Legal; Routh, Crabtree & Olsen; Northwest Trustee; Northwest Trustee Services; Jeff Stenman; Carla Naughton; Joan Mills; Yves Akara Kenao; Sharon M. Meadows; Anne M. Nelson; Mark Wooten; Datsopoulos, MacDonald & Lind; the list goes on. We researched any potential exhibits that might somehow pertain to HSBC’s claims to rights of action or support our defenses that refute any rights to action they might claim and that might explain why Wells Fargo allegedly acting on behalf of HSBC prevented our performance. We researched the alleged mortgage presented and defined issues with its originality and enforceability;  the two invalid assignments; the illegality issues negating both assignments presented to the Court; Wells Fargo’s Limited Power of Attorney signed by Mark Wooten and the legitimacy of his power to grant such authority; Fannie Mae and Freddie Mac Standard Uniform Instruments; permitted usage and permission requirements of Fannie Mae and Freddie Mac instruments; governing laws regarding mortgages and lending practices; Wells Fargo Asset Securities Corporation, Mortgage Pass-Through Certificates Series 2007-7 Trust; lawsuits involving Series 2007-7 Trust; Pooling & Servicing Agreements governing Series 2007-7 Trust; all SEC filings regarding Series 2007-7 Trust; the list goes on. We continued to contact any entities that could assist in stopping this wrongful foreclosure or who might have the authority to hold our abusers accountable. A partial list of those contacted by us or those acting on our behalf Montana Attorney General’s Office and Consumer Protection department, New York Attorney General’s office, McDonnell Property Analytics, Inc., Consumer Financial Protection Bureau, Federal Trade Commission, Office of the Comptroller of the Currency, Securities and Exchange Commission, Montana State Auditor’s Office, and Montana Banking Commissioner’s Office. No one was able or willing to stop the abuse.

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Democracy is redacted and justice is denied by legal chicanery and procedural wizardry.


On May 27, 2014, 53 days after their deadline to respond had expired, and our pleadings had already been deemed admitted, HSBC filed a Motion for Relief to File Late Response and to Hold Deadline in Abeyance against our pleadings. Without our knowledge, the Court granted this motion in an order dated May 30, 2014. The Court then granted its order to allow HSBC to respond without allowing us to provide any response or input as to how severely such an order would prejudice us. This order ultimately allowed HSBC to throw out our amended answers and counterclaim, and has continued to prejudice us throughout the case. By throwing out our evidence, opposing counsel, and even the Court, claimed we had no discovery in the record to support our claims. Our amended pleadings represented extensive research and discovery and fully supported all our claims and defenses regarding prevention of performance, as well as the other issues surrounding this action. This order denied us our right to due process and violated our Constitutional and contractual rights to defend ourselves.

On June 6, 2014, HSBC, instead of answering our defenses and counterclaims, responded to our motion to amend by claiming it was too late to amend our pleadings because they had already sought summary judgment and they would be prejudiced by the truth coming out. Keep in mind, this means our Answers and Counterclaims were in the record and before the Court while he was considering whether or not any issues of material fact existed and whether or not to grant summary judgment to either party.
 
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Read carefully and you will KNOW why mortgage fraud and servicing abuse across America continues.


HSBC falsely argued we had already claimed there were no issues of material fact so summary judgment in their favor was appropriate. Our claims were no issues of material fact existed regarding HSBC’s standing. To allow HSBC to broaden our claims in order to circumvent our right to answer their claims denies logic and judicial prudence. HSBC did not deny our claims or provide any argument or evidence to refute them. No one from HSBC or Wells Fargo had or have ever verified their claims.

On June 16, the Court issued its Order on Motions for Summary Judgment without holding a hearing or oral argument as requested by us. HSBC and the Court had circumvented our right to answer their claims and our access to due process.

On June 20, 2014, we filed our reply brief in support of our motion to amend demonstrating it was not too late in the process to amend our pleadings. We argued allowing the amended pleadings outweighed any prejudice to the bank by resolving all claims arising from the same transaction in the same action. First Sec. Bank v. Ranch Recovery Ltd., 1999 Mont. 43, 976 P.2d 956 (1999)

Reply Brief Motion to Amend

Reply Brief Motion to Amend

COMES NOW, Defendants, Nick and Donna Nickerson, reply to the Plaintiff’s response to Defendant’s motion to amend as follows:

 The Nickersons filed their amended pleadings in a timely manner and in accordance with the Court’s scheduling order and it was their understanding that since the scheduling order had a date in which amendments were required to be filed that the Court had granted leave to amend according to M.R.Civ.P. 15(a). The reason the Nickersons submitted their amendments as part of a motion to amend and did not just submit the amended pleadings is because when the Nickersons questioned how to submit the amendments to the Court they were informed they needed to be submitted via a motion. The Nickersons in their efforts of due diligence searched the rules and found no instructions on how to submit the motion or what to put in it so that is why there was nothing in the motion regarding why the amendments are warranted or state what is being amended or claims are being added and why. However, since the Nickersons original answer is a general denial and the Nickersons submitted their amended pleadings, it should be apparent what has been amended and why. The Nickersons have put forth their affirmative defenses and claims and have supported them with facts, reason, law and case law which demonstrates why the amendments are warranted. The Nickersons do not believe nor has HSBC presented any foundation, evidence or facts that demonstrate HSBC is unduly prejudiced by the amendments, so the Nickersons request this Court to grant leave to amend in order for justice to be determined on the merits. M.R.Civ.P. 15(a)(2) states, “The court should freely give leave when justice so requires.”

HSBC has cited three cases as a basis for their objection. First, HSBC cites Kearns v. McIntyre, 173 Mont. 239, 567 P.2d 433 (1997). The Kearns Court stated, “The facts in the present action do not present a case of substantial prejudice incurred by defendants.” It is important to note that in Kearns both the trial court and Supreme Court determined there was no substantial prejudice incurred and the amendments were allowed.

Second, HSBC cites Lindey’s v. Professional Consultants (1990), 244 Mont. 238, 242, 797 P.2d 920, 923. In addition to what HSBC has cited, the Lindey’s court found:

 

“Almost two months after the deadline for amended pleadings, the trial court, in accordance with Rule 15(a), M.R.Civ.P., granted Lindey’s first motion to file an amended complaint. When Lindey’s failed to file the amended complaint within the extended time granted, the trial court was well within its discretion in not granting Lindey’s motions to file second and third amended complaints. Had the trial court granted Lindey’s motion, all defendants would have been substantially prejudiced and the trial unduly delayed…Lindey’s motion was not timely and appears to be the result of Lindey’s procrastination and failure to act diligently.”

The District Court granted leave to amend after the deadline for amended pleadings and only found that Lindey’s motion to amend would cause undue delay and substantial prejudice to the opposing party because Lindey’s failed to file the amended complaint within the extended time granted due to Lindey’s failure to act diligently. In this case, the Nickersons were within the Court’s deadline to amend, and there is absolutely no undue delay, bad faith or dilatory motive on their part, nor has HSBC made any such claims. HSBC claims they would be unduly prejudiced by the Nickersons amending their pleadings. The Nickersons strongly and categorically disagree and refute HSBC’s argument in full detail in the following paragraphs.

Third, HSBC references Peuse v. Malkuch, 275 Mont. 221, 228, 911 P.2d 1153, 1157 (1996) but totally changes and expands the Peuse Court’s ruling by stating “that motions to amend should only be granted in extraordinary circumstances after summary judgment has been filed.” What the Peuse Court actually stated was, “Litigants should be allowed to change legal theories after a motion for summary judgment has been filed only in extraordinary cases.” The Peuse Court specifically limited the amendments to changing legal theories not all amendments as HSBC would lead one to believe. The Nickersons denied all of HSBC’s claims in their first answer and denied them all again in their amended answer and then added their affirmative defenses which provide the factual basis for denying HSBC’s claims and supporting the Nickersons motion for summary judgment. Further, HSBC cannot claim any prejudice because they delayed responding to the Nickersons motion by over two months and they have not been denied the opportunity to respond to the Nickersons claims and defenses. Rather, the Court extended their opportunity by order.

The Peuse case cited by HSBC must be considered within the entire context of the case and, in fact, the Montana Supreme Court clarified the reasoning in the Peuse case in First Sec. Bank v. Ranch Recovery Ltd., 1999 Mont. 43, 976 P.2d 956 (1999) by stating:

 

“While favored, amendment can be inappropriate when the party opposing the amendment would incur substantial prejudice as a result of the amendment. See Peuse, 275 Mont. at 227, 911 P.2d at 1156. In Peuse, the defendants sought leave to amend their answer after a motion for summary judgment was made and more than two years after the original pleadings were filed, to reflect claims of which they had knowledge much earlier. The analysis of whether justice requires leave to amend is essentially an equitable one, and the defendants in Peuse fell victim to the following maxim: Vigilantibus non dormientibus aequitas subvenit, or ‘equity aids the vigilant, not those who sleep on their rights.’” Id.

Regarding the case at hand, the Court went on to say:

 

“In this case, Ranch Recovery sought leave to amend its counterclaim as soon as newly discovered evidence came to light. We conclude that the interests of justice and judicial efficiency favor the amendment of Ranch Recovery’s pleadings so that all claims arising from the same transaction may be resolved in the same action. This policy, which underlies the rules of civil procedure, outweighs any prejudice to the Bank. Therefore, we conclude that the District Court abused its discretion when it failed to allow Ranch Recovery to amend its counterclaim.” Id.

In this same case the Court overturned the District Court’s granting of summary judgment in favor of the Bank. The Court found:

 

“The newly discovered evidence which Ranch Recovery has offered, and should have been allowed to present in support of an amended counterclaim, raises genuine issues of fact regarding First Security’s compliance with the standby agreement upon which it relies for foreclosure against Ranch Recovery’s interest and, therefore, we conclude that summary judgment was inappropriate.” Id.

The First Sec. Bank case has much more in common with this case than does Peuse. The Bank filed for summary judgment prior to discovery and prior to the Defendants filing of their answer and counterclaim in which the Defendants put forth new evidence raising genuine issues of fact regarding the Bank’s claim for foreclosure. The Montana Supreme Court not only granted the defendants their right to amend they overturned the District Courts granting of summary judgment as well. Additionally, the maxim set forth by the Court regarding Peuse is most favorable to the Nickersons because the Nickersons have been vigilant by presenting their amended pleadings in a timely manner and “equity aids the vigilant”.

 In addition, although the Nickersons are fully within the guidelines of the Montana Rules of Civil Procedure, the courts scheduling order and case law which permit them to amend their pleadings, the Nickersons contend this case also contains extraordinary circumstances which further validate and allow their amendment for, among other issues, the following reasons; 1) the Nickersons have been forced to represent themselves in this fraudulent foreclosure action and are not aware of any nuances to the timing of pleadings that are not plainly set forth in the rules of civil procedure and this Court’s scheduling order, 2) the Nickersons amended pleadings are timely and in accordance with the Court’s scheduling order, 3) summary judgment was initiated by the Nickersons regarding standing, fraud and breach of contract, 4) HSBC submitted a cross-motion for summary judgment prior to any discovery being sought which would have demonstrated the facts and provided evidence the Nickersons have put forth in their amended pleadings, 5) the Nickersons have discovered new evidence which is presented in their amended pleadings, 6) this is a case regarding a judicial foreclosure which is a rare occurrence in Montana and Montana law requires the foreclosing entity on a contract action to prove standing, 7) this case is about the Nickersons potentially losing their family home and ranch to an entity that has refused to provide any admissible evidence regarding their claims or proof that they have standing – HSBC alleges in their reply brief regarding summary judgment “A verified pleading is thus the equivalent of an affidavit in support of or opposition to summary judgment.” See HSBC’s Reply Brief page 3. However, M.R.Civ.P. 56(e)(1) states “A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit.” HSBC’s claimed verified complaint is signed by their attorney, and thus, does not qualify as a summary judgment supporting affidavit because an attorney has no personal knowledge of the alleged facts, account history or default and is not an affiant competent to testify on the matter stated, and the supporting papers HSBC relies upon to allege default are neither sworn to nor certified, and thus, HSBC submitted no affidavit to validate or substantiate any of their claims or evidence or prove possession of the Nickersons Note, and therefore, as a matter of law, is not entitled to summary judgment, 8) this case is about the Nickersons potentially losing their family home and ranch to an entity that has claimed default as of March 1, 2012 when even their inadmissible account history irrefutably validates the Nickersons March 1, 2012, payment was credited to the account on March 1, 2012, 9) this case was initiated by improper service (process server climbing a locked gate and trespassing upon the Nickersons property in order to serve them), 10) this case was initiated by an entity the Nickersons knew nothing about and had actually never heard of, 11) HSBC has admitted that by contract they are not responsible nor do they have the authority for foreclosing, 12) after initiating this case HSBC has stated to multiple parties they are not foreclosing on the Nickersons property, 13) HSBC solely created any alleged default through prevention of performance and the actions and inactions of their alleged servicer Wells Fargo, 14) HSBC denied their involvement with this litigation, refused to work with the Nickersons to validate or cure any alleged default and failed to mitigate damages, 15) the Nickersons deny the existence of any default based on, among other issues, breach of contract, 16) the Nickersons amended pleadings plead fraud with specificity, 17) the Nickersons amended pleadings include matters that were objected to by HSBC because they were not pled, and 18) objections to pleadings occurred during briefing on summary judgment. M.R.Civ.P. 15(b)(1) “Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence.” Clearly, according to this rule, amendments are permitted even during trial so the case may be decided on its merits, and HSBC is well within their rights to reply to the Nickersons answer and should have, as the rules require, responded to the Nickersons amended pleadings within 14 days of being served with them (M.R.Civ.P. 15(a)(3)). The extraordinary circumstances surrounding this case are numerous, and according to the Peuse Court cited by HSBC, the Nickersons amendment should be granted.

In conclusion, the Nickersons contend 1) HSBC has not been prejudiced by any undue delay, 2) HSBC will experience no undue prejudice by allowing the Nickersons amended meritorious defenses and claims to stand because they had both the opportunity and responsibility to respond to them, 3) the Nickersons have demonstrated the extraordinary circumstances surrounding this case, and thus, any new legal theories HSBC claims the Nickersons are presenting should be allowed to stand according to sound discretion, law and the Peuse Court, 4) the Nickersons amended pleading is adding to the facts regarding the Nickersons denial of HSBC’s claims and supporting their motion for summary judgment and their meritorious claims and defenses, 5) the Nickersons have supported their pleadings with new evidence raising genuine issues of fact which according to the First Sec. Bank case reverses the order granting summary judgment to the Bank, 6) it is the judicial policy of Montana that the interests of justice and judicial efficiency favor the amendment of pleadings so that all claims arising from the same transaction may be resolved in the same action. This policy, which underlies the rules of civil procedure, outweighs any prejudice to the Bank, First Sec. Bank, Id., and 7) M.R.Civ.P. 15(b)(1) instructs the trial court to allow the parties to amend the pleadings based on the merits even during the trial if a party objects that the evidence is not within the issues of the pleadings. Further, “Montana follows the general rule that leave to amend pleadings should be freely given when justice so requires (citation omitted). Refusal to permit an amendment offered at an opportune time and which should be made in the furtherance of justice is an abuse of discretion. (citation omitted)” Village Bank v. Cloutier, 249 Mont. 25, 813 P.2d 971 (1991). Given the facts, evidence, rules, statutes and case law in support of the Nickersons amended pleadings the amendment “should be made in the furtherance of justice.” Therefore, as a matter of law, HSBC’s objection to the Nickersons amended pleadings is without merit and must be denied, and the Nickersons amended pleadings should be allowed to stand as pled.


For over 3 months (90 days), the case was in limbo waiting for the Court’s ruling on our motion to amend. We continued to conduct discovery.

On September 25, 2014, the Court issued its order denying our motion to amend.

On October 22, 2014, we filed our objections to the Court’s orders. Objection To Order On Motion To Amend Answer, Counterclaim And Demand For Jury Trial; Objection to Order on Motion For Summary Judgment; Affidavit of Nick Nickerson in Support of Objection to Orders
 

Objection To Order On Motion To Amend Answer, Counterclaim And Demand For Jury Trial

Objection To Order On Motion To Amend Answer,
Counterclaim And Demand For Jury Trial

COMES NOW, Defendants, Nick and Donna Nickerson, in accordance with M.R.Civ.P. 46, object to the Court’s Order on Motion to Amend Answer, Counterclaim and Demand for Jury Trial.

1. This Court stated, “The Nickersons had sufficient time to file their motion to amend after April 2013…and January 2014…” The Nickersons would like to direct the Court’s attention to its scheduling order, the Nickersons Motion to Extend Time and the Order to Extend Time. The Court’s Scheduling Order ordered that amended pleadings must be filed by December 20, 2013. The Order to Extend Time stated, “the Court hereby orders an extension of 90 days to the pre-trial schedule to allow time for the Nickersons Motion for Summary Judgment to be heard and an order to be entered, at which time the pre-trial schedule can be reset at the request of either party.”  The Nickersons filed their amended pleadings as permitted by this Court in its Order to Extend Time. In addition, the Nickersons informed the Court and opposing counsel of their intention to amend their pleadings in their Motion to Extend Time. In that motion the Nickersons stated, “In researching the facts surrounding this case, the Nickersons have uncovered additional irregularities and complexities surrounding the handling and processing of their mortgage which requires more time and expense in order to fully and adequately present their defenses, amended answers, counterclaims, and third-party complaints.” Therefore, the Nickersons were not only well within the time limits prescribed by the Court but both the Court and opposing counsel knew the Nickersons intended to amend their pleadings. Further, the Summary Judgment proceedings were initiated by the Nickersons in order for the Court to determine if HSBC had standing to bring this foreclosure action and the Nickersons did not anticipate or expect HSBC to file a cross-motion for summary judgment prior to any discovery taking place. HSBC did not have any experience working with the Nickersons nor any knowledge of the facts regarding the criminal activities or servicing issues the Nickersons had with HSBC’s alleged servicer Wells Fargo, and, in fact, HSBC told the Nickersons in writing that they were not responsible for foreclosure (See the Summary Judgment Affidavit of Nick Nickerson, Exhibits A and B), that Wells Fargo was responsible and to contact Wells Fargo regarding the foreclosure action. On the other hand, Wells Fargo emphatically told the Nickersons and other entities they were not foreclosing. Therefore, for the Court to claim it is too late for the Nickersons to amend their pleadings because HSBC already asked for Summary Judgment is like getting the cart before the horse. HSBC did not request discovery, and thus, has no knowledge of the underlying claims and defenses of the Nickersons nor did they make any attempt to gain that knowledge. Rather, HSBC utilized legal chicanery to prevent the Nickersons from having opportunity to provide discovery that would implicate HSBC of illegal activity and expose Wells Fargo’s illegal activity and intent to defraud the Nickersons. The only party that is unduly prejudiced in this entire affair is the Nickersons because HSBC and their accomplices have not sought the truth nor presented or allowed the truth to be presented regarding this case.

2. This Court stated, “The Nickersons argue Montana Rule of Civil Procedure 15(a) allows them to file the amendment.” Although this is true and the Nickersons do argue that M.R.Civ.P. 15(a) is an appropriate rule which does permit the Nickersons amendments, the Nickersons also cited other rules, cases and authorities which this Court does not reference, and thus, it appears this Court ignored or did not consider the Nickersons Reply Brief Motion to Amend. First, in the Nickersons reply, the Nickersons cite M.R.Civ.P. 15(b)(1) “Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence.” Since summary judgment for all intents and purposes is a trial this rule would apply. HSBC raised some objections to the evidence presented by the Nickersons because they were not in the pleadings and according to this rule and in order to aid in presenting the merits the Nickersons should have been permitted to amend the pleadings. Further, if at trial the Court can permit a party to amend their pleadings, then it should stand to reason a party would and should be permitted to amend their pleadings with good cause to ensure justice, especially when they are doing so before any formal discovery has taken place, when the scheduling order allows such amendments and when the amendments are necessary in order to present the merits of the case.

Second, the Nickersons cite First Sec. Bank v. Ranch Recovery Ltd., 1999 Mont. 43, 976 P.2d 956 (1999) to rebut HSBC’s and this Court’s citing and use of Peuse v. Malkuch. (Order on Motion to Amend Answer, Counterclaim and Demand for Jury Trial, Pg 2). The First Sec. Bank findings clearly set out the Montana Supreme Court’s reasoning behind their Peuse decision which is in stark contrast to the circumstances surrounding this case:

 

“While favored, amendment can be inappropriate when the party opposing the amendment would incur substantial prejudice as a result of the amendment. See Peuse, 275 Mont. at 227, 911 P.2d at 1156. In Peuse, the defendants sought leave to amend their answer after a motion for summary judgment was made and more than two years after the original pleadings were filed, to reflect claims of which they had knowledge much earlier. The analysis of whether justice requires leave to amend is essentially an equitable one, and the defendants in Peuse fell victim to the following maxim: Vigilantibus non dormientibus aequitas subvenit, or ‘equity aids the vigilant, not those who sleep on their rights.’” Id.

The Nickersons, however, filed their amended pleadings in a timely manner and in accordance with the Court’s Order to Extend Time. In addition, the Nickersons did not sleep on their rights. As the Nickersons stated in their Motion to Extend Time, the Nickersons had “uncovered additional irregularities and complexities surrounding the handling and processing of their mortgage which requires more time and expense in order to fully and adequately present their defenses, amended answers, counterclaims, and third-party complaints.” In addition, the Nickersons discovered new evidence which is presented and fully supported in their amended pleadings, and as soon as the Nickersons could prepare their amended pleadings, and within the Court’s time limit, the Nickersons presented them. Therefore, the Peuse case does not reflect the circumstances surrounding this case and should not apply.

Third, the circumstances surrounding the First Sec. Bank case are very similar to this case. In First Sec. Bank, the Bank filed for summary judgment prior to any formal discovery being conducted and the Defendant discovered new evidence. The Montana Supreme Court stated:

 

“In this case, Ranch Recovery sought leave to amend its counterclaim as soon as newly discovered evidence came to light. We conclude that the interests of justice and judicial efficiency favor the amendment of Ranch Recovery’s pleadings so that all claims arising from the same transaction may be resolved in the same action. This policy, which underlies the rules of civil procedure, outweighs any prejudice to the Bank. Therefore, we conclude that the District Court abused its discretion when it failed to allow Ranch Recovery to amend its counterclaim.” Id.

In the end, the Court found:

 

“The newly discovered evidence which Ranch Recovery has offered, and should have been allowed to present in support of an amended counterclaim, raises genuine issues of fact regarding First Security’s compliance with the standby agreement upon which it relies for foreclosure against Ranch Recovery’s interest and, therefore, we conclude that summary judgment was inappropriate.” Id.

Therefore, since no formal discovery has been conducted in this case and the Nickersons present new evidence and defenses in their amended pleadings, and according to the Montana Supreme Court’s findings that in the interests of justice and judicial efficiency all claims arising from the same transaction may be resolved in the same action outweighs any prejudice to the Bank, this Court, in the interest of justice, must reverse its decision and allow the Nickersons amended pleadings to stand and be adjudicated.

Fourth, as the Nickersons have demonstrated to the Court, their amended pleadings were submitted according to the schedule and as soon as they had opportunity, and thus, according to the Montana Supreme Court and as cited in their Reply Brief Motion to Amend, the Nickersons amended pleadings should be considered. “Montana follows the general rule that leave to amend pleadings should be freely given when justice so requires (citation omitted). Refusal to permit an amendment offered at an opportune time and which should be made in the furtherance of justice is an abuse of discretion. (citation omitted)” Village Bank v. Cloutier, 249 Mont. 25, 813 P.2d 971 (1991).

3. In support of its decision to deny the Nickersons motion to amend, this Court stated, “The Nickersons do not cite any extraordinary reasons why the Court should grant their motion to amend.” This is simply not true. In their Reply Brief, the Nickersons set forth eighteen (18) extraordinary reasons why they should be granted leave to amend (Reply Brief Motion to Amend, Pages 4-5). Some of the most significant are 1) HSBC filed for summary judgment prior to any formal discovery being conducted. The Nickersons denied all of HSBC’s claims and HSBC should have conducted discovery to find out why and refute the Nickersons claims prior to requesting summary judgment so they could have the opportunity to answer the Nickersons defenses and claims. 2) The Nickersons have discovered new evidence which is presented in their amended pleadings. 3) This case was initiated by an entity the Nickersons knew nothing about and had actually never heard of. 4) HSBC has admitted that by contract they are not responsible nor do they have the authority to foreclose (See Summary Judgment Affidavit of Nick Nickerson, Exhibits A and B). 5) After initiating this case HSBC stated to the Nickersons, in writing, they are not foreclosing on the Nickersons property (See Summary Judgment Affidavit of Nick Nickerson, Exhibits A and B). 6) HSBC solely created any alleged default through prevention of performance and the actions and inactions of their alleged servicer Wells Fargo, and 7) HSBC denied their involvement with this litigation, refused to work with the Nickersons to validate or cure any alleged default and failed to mitigate damages. Because of all of these extraordinary circumstances and more, more time and effort was required to sift through HSBC’s claims and denials, Wells Fargo’s denials and responsibilities and the layers of deception and concealment surrounding Wells Fargo’s and HSBC’s mortgage backed securities trust and innumerable other unlawful actions committed by Wells Fargo in order for the Nickersons to put forth their appropriate defenses and counterclaims.

In addition to the aforementioned, the following extraordinary circumstances also apply to this case: 1) Although HSBC has clearly stated Wells Fargo is responsible for foreclosing, Wells Fargo has denied, on multiple occasions and to multiple parties, their involvement in this foreclosure action and have stated they are not foreclosing. 2) Since the Nickerson mortgage is claimed to be a part of a mortgage backed securities trust and the entities involved in that trust have not adhered to the trust agreements, it makes it very difficult to determine who actually owns the note, and if the note, in reality, has already been paid off and satisfied perhaps even multiple times by one of the numerous investors or during one of the numerous transactions that have occurred during the securitization process. 3) To expound on point 6 in the paragraph above, the Nickersons did not default, did not break any promises or agreements, have provided proof that the March 1, 2012, payment Wells Fargo claimed the Nickersons missed and that Wells Fargo used to block the Nickersons access to their account was in fact paid and received by Wells Fargo in a timely manner. Wells Fargo unlawfully denied the Nickersons and their own Wells Fargo representatives access to the Nickerson account for research or to make payments the Nickersons were attempting to make, all opportunities to question inaccurate account records and substantial “additional fees” added to the account, and all abilities to make payments and cure any default claims. Any default that may or may not exist on the account was made, created and caused by Wells Fargo. Wells Fargo’s attempt to defraud the Nickersons is far reaching and has not yet been fully briefed in this action. 4) HSBC and Wells Fargo clearly breached the spirit, intent and any legal rights granted to them by the Nickersons by their handling of the Nickersons accounts and moneys. 5) The Nickersons ranch, their investment in it and the considerable equity they have built up in it are all being unjustly, unscrupulously and unlawfully stolen by HSBC. 6) The Nickersons have suffered significant, substantial and extreme physical, emotional and financial damages as a result of HSBC and Wells Fargo’s ongoing actions. 7) HSBC in the alleged contract expressly granted the Nickersons the right to bring a court action and present any defenses they may have. 8) The alleged default letter promises the Nickersons “the right to argue that you did keep your promises and agreements under the Mortgage Note and Mortgage, and to present any other defenses that you may have.” 9) The Nickersons agreed to a loan on their property because they understood, were told, and believed they would be legally protected from the theft, fraud and malicious seizure of their property through reckless and deceptive lending and debt collection practices. They also understood the Lender would not be allowed to prevent them from fulfilling their obligations in order to steal their ranch. 10) When the Nickersons, due to no fault of their own, found themselves entrenched in a nightmare of mortgage fraud, they relied on the promises they would have the opportunity to present their defenses and tell their story to a Court who had the power to protect them from unjustly losing their family ranch and life savings. 11) The Trust the Nickersons loan was allegedly entered into without the Nickersons knowledge or consent, especially since the loan was unlawfully entered into the trust after the closing date, involves multiple entities, is impacted by laws from multiple states, and is comprised of hundreds of pages. Reviewing and researching these documents and the rules and laws governing them and contacting entities and authorities involved and knowledgeable about these documents required an extensive amount of time. 12) Opposing counsel objected to issues raised in summary judgment because they had not been pled thereby requiring the Nickersons to respond by amendment and alleviating any objection that HSBC had not had opportunity to respond to these objections (M.R.Civ.P. 15(b)(1)). 13) The pleadings presented in the amendment are an expansion of the issues the Nickersons provided to their counsel and believed they raised in summary judgment. At the direction of legal counsel who had at that time indicated they were representing the Nickersons in this case, the Nickersons presented a general denial to the Court with the understanding they would be allowed to amend later. The Nickersons were told this was the proper legal process to follow. 14) The Nickersons requested a Summary Judgment hearing in which they would be allowed to provide oral argument. (See the Nickersons Motion for Summary Judgment page 2, Reply Brief in Support of Defendants’ Motion for Summary Judgment page 19 and Response in Opposition to Plaintiff’s Motion for Summary Judgment page 23.) This hearing would have provided the Nickersons with the opportunity to present evidence and testimony to support their claims and defenses, evidence and testimony to refute HSBC’s claims and defenses, and offer genuine issues of material fact to the Court that would prevent any summary judgment in favor of HSBC. The Court never granted a hearing as requested by the Nickersons verbally and in writing.

Therefore, because of the overwhelming amount of extraordinary reasons to allow the pleadings to be amended, according to the Peuse decision, the Nickersons should be granted leave to amend and this Court should reverse its order granting summary judgment to HSBC.

4. HSBC, by contract, must allow the Nickersons to present their defenses and claims. In the Mortgage contract presented by HSBC (HSBC’s Complaint Exhibit B) Section 22 states, “The notice shall further inform the Borrower of…the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale.” (emphasis added). In addition, the alleged acceleration notice states, “If foreclosure is initiated, you have the right to argue that you did keep your promises and agreements under the Mortgage Note and Mortgage, and to present any other defenses that you may have.” By refusing to allow the Nickersons to amend their pleadings, HSBC is breaching the express terms of the alleged Mortgage contract and denying the Nickersons their contractual and promised rights. Further, by refusing the Nickersons amendments, this Court is denying the Nickersons the rights that are expressly granted to them in the terms of the alleged contract.  HSBC cannot claim undue prejudice by being required to adhere to the contract they presented to the Court and claim to base their rights upon.

Therefore, to allow HSBC to claim their right to foreclose based upon the contract presented, but refuse the Nickersons their rights to argue that they did keep all promises and agreements and thereby be allowed to defend against the claims of HSBC is unjust and in breach of the terms of the contract presented. Furthermore, for HSBC to claim undue prejudice if the Nickersons are allowed their contractual rights is unlawful and clearly in breach of any alleged contractual agreement. Thus, this Court must reverse its order denying the Nickersons amended pleadings and enter an order granting the Nickersons motion to amend.

CONCLUSION

The Court has determined it would unduly prejudice HSBC by allowing the Nickersons to amend their pleadings. However, the Nickersons humbly ask the Court to consider these questions and realities: 1) How does it prejudice HSBC to catch them in a lie and the act of malicious thievery and hold them accountable for it? 2) How does it prejudice HSBC to require them to answer for their criminal actions, support their unsubstantiated claims and try this case based on the merits and not legal chicanery? 3) How does it prejudice HSBC to require them to account for the extensive fraud and cover up surrounding the handling of the Nickersons Note and Mortgage? 4) How does it prejudice HSBC to require HSBC and Wells Fargo to account for the irrefutable fact the Nickersons did not default on their March 2012 payment which is the basis for this foreclosure action and for preventing the Nickersons from having access to their account? 5) How does it prejudice HSBC to adhere to the alleged contract and uphold their promises and agreements? 6) Why would this Court want to deny justice for the Nickersons, refuse to consider rules, cases and authorities, refuse to allow the Nickersons their day in Court, and want to unduly prejudice them? 7) Why would this Court want to punish innocent homeowners who did not breach their contract or default on their loan, who made superhuman attempts to honor all agreements and commitments regarding this property, and who have exercised due diligence to pursue all legal rights and remedies prior to and throughout these proceedings? 8) Why would this Court reward those who have committed multi-layers of criminal acts against the Nickersons, this Court, their licenses and the laws of this land, with unjust gain and an opportunity to hide and conceal criminal activity and actions that warrant incarceration and punitive fines if properly presented and prosecuted? Not requiring HSBC, Wells Fargo and their accomplices to answer for their actions is essentially offering them immunity for abusing the Nickersons, breaking the law and violating any and all agreements made by and with the Nickersons. The Nickersons have clearly demonstrated by order of this Court, the rules, M.R.Civ.P. 15(a) and 15(b)(1), and the cases, First Sec. Bank v. Ranch Recovery, Peuse v. Malkuch, and Village Bank v. Cloutier, that leave should be freely given to them to amend their pleadings and that any summary judgment in favor of HSBC is inappropriate, not warranted, and unduly prejudicial against the Nickersons.

With any and all due respect, the Nickersons have shown due diligence and proper regard for this Court as forced pro se litigants while opposing counsel Erika Peterman, who as an attorney is purported and supposed to know, understand and uphold the laws and rules, and her alleged client HSBC, who agreed to follow federal, state and local lending and collection guidelines, have not. At a bare minimum, HSBC and opposing counsel 1) Filed a cross-motion for summary judgment along with HSBC’s response to the Nickerson motion for summary judgment which caused extreme confusion on how the Nickersons, as pro se litigants, were to respond and what to provide in response. 2) Filed a cross-motion for summary judgment based on an invalid verified complaint and unsworn and uncertified account records 3) Used an invalid, verified complaint to mislead the Court into wrongfully granting summary judgment in HSBC’s favor. Opposing counsel claimed the alleged verified complaint could be used as a summary judgment affidavit even though according to M.R.Civ.P. 56(e)(1) a summary judgment affidavit “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated.” Opposing counsel did not affirm she had personal knowledge of the alleged facts, did not set out facts that would be admissible as evidence, nor is she competent to testify on the matters stated. Therefore, the Complaint fails as a summary judgment affidavit. 4) Used unsworn and uncertified account records in violation of M.R.Civ.P. 56(e)(1) that are clearly inaccurate (See Affidavit of Nick Nickerson in Support of Objection to Orders, Exhibit A) to mislead the Court into wrongfully granting summary judgment in HSBC’s favor. 5) Failed to meet deadlines set by the Court such as providing Exhibit and Witness Lists so the Nickersons could have opportunity to conduct discovery and properly prepare for trial. Meeting these deadlines was especially critical since HSBC and Wells Fargo both repeatedly and adamantly denied their involvement with this foreclosure action. Since no firsthand evidence had been provided by an HSBC or Wells Fargo representative, the Nickersons should have been given opportunity to conduct formal discovery of any exhibits, witnesses or at least be made aware of the supporting evidence and testimony opposing counsel planned to use at trial, or be allowed to force them to admit they had no credible evidence and witnesses and were intending to use legal chicanery to prevail in their case. 6) Failed to respond to the Nickerson Motion to Amend within the required timeframe. Therefore, according to the rules, the motion should have been deemed admitted. However, opposing counsel asked for relief for missing the deadline by 63 days to respond to the Nickerson motion, and the court freely granted her request to answer the claims without providing opportunity for the Nickersons to respond or object. Opposing counsel did not contact the Nickersons by phone or mail to request them to stipulate. Opposing counsel and her client have contact information for the Nickersons. As a matter of record, the Nickersons served opposing counsel with the Amendments in a timely manner per the Rules of Civil Procedure and according to the Court’s order. Opposing counsel did not ask for relief from deadline until May 27, 2014, 53 days after the deadline had been missed, and 67 days after the Nickersons served opposing counsel with the Amendments. Technically this Court’s decision created enormous prejudice for the Nickersons since they were not provided or given time or opportunity to object to her request, and they understood and believed her failure to respond meant the Motion to Amend had been deemed admitted. Further, the Nickersons were under the understanding they were not filing a motion for permission, because it was their understanding the Court had granted their right to amend at will within the time frame the Court had set forth. They only filed their amendment as a motion because they were instructed that was the proper document to utilize to present their amendments to the Court. At any rate, opposing counsel did not utilize the Court’s grace for the alleged incompetence of her staff and answer the claim. Rather, opposing counsel utilized the grace extended by the Court, and not allowed to be objected to by the Nickersons, to claim undue prejudice. To reiterate, opposing counsel did this even when according to the Court’s order and timeline and M.R.Civ.P. 15 the Nickersons were well within their rights to amend their pleadings. Opposing counsel did this even though her alleged client had contractually agreed based on the documents presented to claim relief to allow the Nickersons to present their defenses. The Nickersons have been unduly prejudiced by the order denying their right to amend. HSBC experiences no prejudice to allow the Nickersons to exercise their rights to defend their property and its equity provided by Montana law, the US Constitution, common law, and the alleged contracts presented by HSBC. 7) Breached the alleged contract and promised rights of the Nickersons to present their claims and defenses by claiming undue prejudice in order to prevent the Nickersons from filing their amended pleadings. The alleged Mortgage contract specifically grants the Nickersons the right to bring a court action (in this setting, that would be known as a counterclaim) and to assert any defenses to foreclosure. The alleged notice letters state the Nickersons have the right to present any defenses they may have. Thus, through the use of legal chicanery, HSBC and opposing counsel has attempted to rob the Nickersons of their rights granted under the alleged contract and reinforced in the alleged notice letters. 8) Failed to adhere to the requirements of M.R.Civ.P. 5.2(a) to redact the account number on the documents submitted to the court in order to protect the Nickersons and their identity. 9) Failed to file a disclosure statement as required by M.R.Civ.P. 7.1. 10) Participated in the abuse of service process. The process server trespassed upon the Nickersons property by climbing a locked gate, ignoring No Trespassing signs and walking up a long private driveway in order to serve the Nickersons in violation of MCA § 45-6-203. 11) Failed to notify the Court and the Nickersons she had changed law firms. Opposing counsel filed under Peterman Law then changed to RCO Legal. This raised concerns for the Nickersons because RCO Legal is a Washington based law firm that is associated with Northwest Trustee and Jeff Stenman. (See Exhibit G of the Nickersons Amended Answer, Counterclaim and Demand for Jury Trial) 12) Provided invalid contact information on the complaint. Coupled with the multiplicity of fraud and criminal actions uncovered, this created confusion and obvious concern for the Nickersons because a) certified letters sent to the address provided were never signed for, b) opposing counsel’s previous law firm expressed clear disassociation with her, and c) HSBC and Wells Fargo persistently denied any involvement with this action. 13) Presented at least 15 inconsistencies, falsehoods, misrepresentations, fraud and other problems in HSBC’s Complaint which is considered a misdemeanor and calls for penalties. 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 the damages. The attorney is also guilty of a misdemeanor.” 14) Lost the Nickersons personal contact information which the Court required them to provide and which opposing counsel should have had access to if she and her client were communicating about the case. 15) Knowingly and willfully ignored the truths presented by the Nickersons that challenge the veracity and lawfulness of HSBC’s claims and have continued to pursue this unlawful foreclosure.

Wherefore, the Nickersons humbly request this Court recognize and honor their due diligence to present this Court with the facts and truths that surround this case and to protect them from the legal chicanery, abuse and fraud being perpetrated by HSBC and opposing counsel and allow the Nickersons their contractual right and inalienable rights to defend against the unlawful theft of their home, family ranch and life savings. The Nickersons have not approached this Court as pro se litigants by choice. Extraordinary circumstances forced this responsibility upon them. The Nickersons request the Court review the record, the actions of both parties and ensure equal access to justice is being provided for the Nickersons.

Wherefore, the Nickersons further request the Court reverse the order denying the Nickersons motion to amend, the Court reverse the order granting summary judgment to HSBC, and enter an order allowing the Nickersons to amend their pleadings as granted in this Court’s previous order.

Oral argument requested.




Objection To Order On Motion For Summary Judgment

Objection to Order on Motion For Summary Judgment

 

COMES NOW, Defendants, Nick and Donna Nickerson, in accordance with M.R.Civ.P. 46, object to the Court’s Order on Motions for Summary Judgment as detailed below and requests the Court reverse its order granting summary judgment to HSBC.

1. This Court stated, “Neither party requests oral argument.” However, the Nickersons requested oral argument in their Motion for Summary Judgment, in their Reply Brief in Support of Summary Judgment and in their Response in Opposition to Plaintiff’s Motion for Summary Judgment, and even spoke with the Court’s clerk regarding a hearing but were instructed to wait for the Judge to set it. Oral argument was a critical part of the Nickersons’ defense to HSBC’s Complaint and an integral part of the Nickersons’ request for Summary Judgment.  The Nickersons are uncertain as to why this Court disregarded their requests for oral argument.

2. HSBC has not presented any admissible evidence or affidavits to validate their claims of default and note holder status. HSBC alleges in their reply brief regarding summary judgment, “A verified pleading is thus the equivalent of an affidavit in support of or opposition to summary judgment.” See HSBC’s Reply Brief, page 3. However, M.R.Civ.P. 56(e)(1) states “A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit.” HSBC’s claimed verified complaint is signed by their attorney, and thus, does not qualify as a summary judgment supporting affidavit because an attorney has no personal knowledge of the alleged facts, account history or alleged default and is not an affiant competent to testify on the matter stated, and the supporting papers HSBC relies upon to allege default are neither sworn to nor certified, and thus, HSBC submitted no affidavit or other admissible evidence to validate or substantiate any of their claims or evidence or prove possession or ownership of the Nickersons Note. Therefore, as a matter of law, HSBC is not entitled to summary judgment.

3. HSBC has not proven or provided any admissible affidavit or other evidence to validate they are the current holder of the Nickersons Note. HSBC simply makes the claim, “Montana law does not require an original note in order to foreclose” and “No original note is required.” However, HSBC cites no legal authority, statute or law validating that claim. Montana law requires the entity attempting to enforce the instrument to produce the instrument. “As a result of the Bank’s status as a ‘holder’ and its production of the instrument, it is entitled to recover unless the defendant establishes a defense. Section 30-3-307(2) MCA.” (emphasis added) Culbertson St. Bank v. Dahl, 190 Mont. 33, 617 P.2d 1295 (1980). MCA § 30-3-307(2) states specifically, “a plaintiff producing the instrument is entitled to payment if the plaintiff proves entitlement to enforce the instrument under 30-3-301.” Thus, contrary to HSBC’s claims, Montana law specifically states HSBC must produce the note and prove they are entitled to enforce it. HSBC cites the case Paatalo v. J.P. Morgan Chase Bank, N.A. in order to establish that the holder of the note is the one entitled to enforce it. The Paatalo case references the MCA to substantiate the findings. MCA § 30-1-201(2)(v)(i) defines “Holder” as the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession. MCA § 30-3-204 provides that if an indorsement is made to an identified person it is a “special indorsement.” When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the indorsement of that person. The indorsement on the copy of the note provided by HSBC specifically indorses the note to Wells Fargo Bank, N.A. It is not a blank indorsement as claimed by HSBC but rather a special indorsement and HSBC has not produced the instrument and has not proven they are in possession of the note. Thus, HSBC does not qualify as the “holder” based on the definition provided in the MCA and therefore, HSBC has not established they are entitled to enforce the note. HSBC has not established that it is a holder of the note (in possession of the note indorsed to them or indorsed in blank) nor have they established the note is in their possession by producing it. Therefore, HSBC is not the note holder and is not entitled to enforce it and thus, summary judgment in favor of HSBC must be reversed and summary judgment in favor of the Nickersons must be granted.

Furthermore, at the very least, the person attempting to enforce the instrument must produce the instrument in order to prove they are in possession of the instrument and must prove they were in possession of the instrument prior to filing suit. The Paatalo Court cites several authorities to validate its findings – one from the 4th Circuit referencing Virginia law, one from Texas and one from Washington. It is well settled that case law uses legal authorities throughout the country when no controlling precedent is found within the jurisdiction of the court making the findings or when there is substantial findings to overrule a precedent. The case law requiring a bank to prove holder status of the note in order to foreclose is substantial and cannot be ignored.

 

“Movant must show that it has an interest in the relevant note, and that it has been injured by debtor’s conduct (presumably through a default on the note). Such is necessary to establish constitutional standing.

In conclusion, Movants have failed to establish they possess the notes at issue. For this reason alone, the Court can, and will, deny their motions.

Because Movants failed to establish possession and an ownership interest in the notes, they are not shown to be the real party in interest, and they lack standing to bring the motions.” In re Wilhelm, 407 B.R. 392, 398 (Bankr. D. Idaho 2009).

 

“when the borrower has a specific factual basis for challenging the standing of the foreclosing entity, the burden shifts to that entity to produce sufficient competent oral or written evidence to persuade the Court that it is more probable than not that the entity instigating the foreclosure was the holder of the note or an authorized agent of the holder at the time the foreclosure was commenced.” In re Reinke, Bankruptcy No. 09-19609 (Bankr. W.D. Wash. Oct. 26, 2011).

 

“plaintiff presented no evidence of having possessed the underlying note prior to filing the complaint. If plaintiff did not have the note when it filed the original complaint, it lacked standing to do so, and it could not obtain standing by filing an amended complaint.” Deutsche Bank Nat. v. Mitchell, 422 N.J. Super. 214, 27 A.3d 1229 (2011).

 

“In the present case, the court ruled upon the motion for summary judgment without first resolving the factual issue of when the plaintiff took ownership and control of the note and, thus, whether it had subject matter jurisdiction. This court has recently concluded that when the jurisdiction of the court hinges on a factual determination regarding the plaintiff’s status as holder of the note at the time of the commencement of the action, the court must determine the pertinent facts necessary to ascertain whether jurisdiction existed and rule on the issue of standing before addressing the merits of the controversy. Equity One, Inc. v. Shivers, 125 Conn.App. 201, 206, 9 A.3d 379 (2010); see also Deutsche Bank National Trust Co. v. Bialobrzeski, 123 Conn.App. 791, 799-800, 3 A.3d 183 (2010); LaSalle Bank, National Assn. v. Bialobrzeski, 123 Conn.App. 781, 789-90, 3 A.3d 176 (2010). In light of the documents before the court, showing discrepancies as to the date of the transfer of the note, as well as the defendant’s argument that the plaintiff had not demonstrated that it was the holder of the note when this complaint was filed, the court improperly formed a legal conclusion without establishing the factual predicate for the court’s subject matter jurisdiction. Accordingly, we reverse and remand the case to the trial court for a hearing to ascertain the plaintiff’s status as the owner or holder of the subject note at the time the action was commenced, so that the court may properly determine whether it has subject matter jurisdiction.” Park National Bank v. 3333 Main, LLC, 127 Conn.App. 774, 15 A.3d 1150 (App. Ct. 2011).

 

“Thus, because it failed to establish an interest in the note or mortgage at the time it filed suit, it had no standing to invoke the jurisdiction of the common pleas court.” Fed. Home Loan Mtge. Corp v. Schwartzwald, 2012-Ohio-5017, 134 Ohio St.3d 13 (2012).

 

“U.S. Bank was required to show that at the time the complaint was filed it possessed the original note either made payable to bearer with a blank endorsement or made payable to order with an endorsement specifically to U.S. Bank. See Bank of N.Y. v. Raftogianis, 418 N.J.Super 323, 13 A.3d 435, 439-40 (2010) (reciting requirements for bank to demonstrate that it was holder of the note at time complaint was filed).” US Bank Natl. Ass’n v. Kimball, 2011 VT 81, 27 A.3d 1087 (2011).

 

 “U.S. Bank was required to establish, through admissible evidence, that it held the note and mortgage and so had standing to foreclose the mortgage before it would be entitled to summary judgment in its favor.” BAC Funding Consortium Inc. v. Jean-Jacques, 28 So. 3d 936 (Fla.App. 2010).

 

“the plaintiff must prove that it had standing to foreclose when the complaint was filed” McLean v. JP Morgan Chase Bank Natl. Assn., 79 So.3d 170, 173 (Fla.App. 2012).

 

Bain, 175 Wash 2d at 89, 285 P.3d 34 (finding that ‘only the actual holder of the promissory note or other instrument evidencing the obligation may be a beneficiary with the power to appoint a trustee to proceed with a nonjudicial foreclosure on real property’ under the DTA).” McDonald v. OneWest Bank, FSB, 929 F. Supp. 2d 1079 (W.D. Wash, 2013).

 

“Appellee must demonstrate it is a person entitled to enforce the note. It must provide evidence it has possession of the note either by being a holder or a nonholder in possession who has the rights of a holder…Evidence establishing when Appellee became a person entitled to enforce the note must show Appellee was a person entitled to enforce the note prior to filing its cause of action for foreclosure.” Deutsche Bank Nat. Trust v. Brumbaugh, 2012 OK 3, 270 P.3d 151 (2012).

 

“The real party in interest in foreclosure actions is the current holder of the note and mortgage…if the note is payable to an identified person, negotiation requires transfer of possession of the instrument and endorsement by the holder.” Bank of Am., NA v. Miller, 194 Ohio App. 3d 307 (2011).

 

Plaintiff must produce original note not copy otherwise maker may face double liability. McKay v. Capital Res. Co., Ltd. 940 S.W.2d 869 (Ark. 1997).

 

 “From the maker’s standpoint, therefore, it becomes essential to establish that the person who demands payment of a negotiable note, or to whom payment is made, is the duly qualified holder. Otherwise, the obligor is exposed to the risk of double payment, or at least to the expense of litigation incurred to prevent duplicative satisfaction of the instrument. These risks provide makers with a recognizable interest in demanding proof of chain of title. Consequently, plaintiffs here, as makers of the notes, may properly press defendant to establish its holder status.” In re Kemp, 440 B.R. 624 (Bankr. D. N. J. 2010).

 

“As a result of the Bank’s status as a ‘holder’ and its production of the instrument, it is entitled to recover unless the defendant establishes a defense. Section 30-3-307(2) MCA.” Culbertson St. Bank v. Dahl, 190 Mont. 33, 617 P.2d 1295 (1980).

In order for HSBC to have standing this Court must determine the following; 1) is HSBC in possession of the Nickersons note and did they obtain possession lawfully, 2) is the Nickersons note indorsed to HSBC or in blank, and 3) was HSBC in possession of the Nickersons note at the time they filed their complaint. The only legally verifiable way to establish possession is to produce the original. One cannot take a copy of check to a bank and expect it to be cashed. The bank requires you to provide the original. The same holds true for a note. One cannot expect to enforce a note based on a copy. The original must be produced. Further, Wells Fargo provided a copy of the original note in response to a RESPA Qualified Written Request (QWR) which differs from the copy HSBC provided. The copy of the note Wells Fargo provided is not indorsed to Wells Fargo as is the copy HSBC provided. In fact, the Wells Fargo copy is not indorsed at all (Compare Affidavit of Nick Nickerson in Support of Objection to Orders, Exhibit B page 4 and HSBC’s Complaint, Exhibit A). Because Wells Fargo’s copy of the original note differs from that of HSBC there are genuine issues of material fact and fraud regarding the original note which can only be settled by HSBC producing the original note. Therefore, according to Montana Law and the fact Wells Fargo provided a copy of the note that differs from HSBC, in order for HSBC to claim standing to foreclose, HSBC must produce the original note and must provide lawful evidence of their ownership of the note and that it was in their possession prior to filing their complaint.

4. HSBC argues the Nickersons consented to the note being assigned and proof of that consent is that the Nickersons made payments to HSBC and proof of those payments is found in the payment history attached to their cross-motion for summary judgment. First, the payment history is inadmissible evidence because it was not sworn to nor validated by an affiant with personal knowledge who is competent to testify to its authenticity as required by M.R.Civ.P. 56(e)(1). Second, this argument is seriously flawed and constitutes an outright lie and an attempt to deceive this Court because the Nickersons never made any payments to HSBC nor were the Nickersons ever instructed to or required to make any payments to HSBC. All payments were made to Wells Fargo for the Nickerson loan with Wells Fargo. The Nickersons were never informed HSBC was involved with their loan. The Nickersons never made a payment to HSBC. Third, the Nickersons have never admitted to the authenticity or legality of the assignments, and in fact, have done nothing but contest and provide evidence to refute them since the time they found out about them. Finally, the Nickersons were never notified by HSBC that HSBC owned the loan or was their new creditor as required by federal law – 15 U.S.C. 1641(g) Notice of new creditor (1) In general In addition to other disclosures required by this subchapter, not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer, including— (A) the identity, address, telephone number of the new creditor; (B) the date of transfer; (C) how to reach an agent or party having authority to act on behalf of the new creditor; (D) the location of the place where transfer of ownership of the debt is recorded; and (E) any other relevant information regarding the new creditor.” Lastly, at no time did the Nickersons agree to an illegal transfer or assignment of their loan into a securitized trust after the closing date thereby violating the laws governing the Trust, contaminating the legality of the Trust, and threatening the ownership of their property. Therefore, since the Nickersons never made any payments to HSBC, HSBC never notified the Nickersons of their claims of ownership, and the Nickersons never agreed to the illegal assignment of their property, HSBC cannot argue the Nickersons consented to any assignments, and thus, HSBC’s argument on this point is moot.

5. This Court stated, “The undisputed facts, however, indicate the Nickersons consented to the assignment of the mortgage and note when they executed the note on March 30, 2007.”  The argument that the Nickersons consented to the Note and Mortgage being assigned, and thus, must now remain silent on their claims against HSBC because of the illegalities and fraud contained within those assignments is clearly refuted by the Montana Supreme Court in Bails v. Gar:

 

“I assume that there is no authority that we are required to follow and support of the proposition that a party who has perpetrated a fraud upon his neighbor may, nevertheless, contract with him in the very instrument by means of which it was perpetrated, for immunity against its consequences, close his mouth from complaining of it and bind him never to seek redress. Public policy and morality are both ignored if such an agreement can be given effect in a court of justice. The maxim that fraud vitiates every transaction would no longer be the rule but the exception.” Bails v. Gar, 171 Mont. 342, 558 P.2d 458, 461 (1976).

The Nickersons did not consent to Wells Fargo and HSBC committing an act that is void. “Under New York Trust Law, every sale, conveyance or other act of the trustee in contravention of the trust is void. EPTL § 7-2.4. Therefore, the acceptance of the note and mortgage by the trustee after the date the trust closed, would be void.” Wells Fargo Bank, N.A. v. Erobodo (N.Y.Sup.Ct. 2013) 39 Misc.3d 1220(A) [2013 WL 1831799, p. *8].

The Nickersons did not consent to Wells Fargo and HSBC fabricating and recording a false chain of title. Both assignments are false and fraudulent: The first assignment occurred almost three years after the trust was closed which both Wells Fargo and HSBC know is in contravention to the trust agreements and therefore, void, but they chose to go ahead and deceive Lewis & Clark County, the Nickersons, this Court and the world at large by recording it in the county records. The second assignment is even worse because it not only has the same problems as the first assignment but its wording is false (it calls the Nickersons mortgage a deed of trust) and it is a complete forgery because Wells Fargo claims to have already assigned all interest to HSBC, and thus, Wells Fargo would have had no interest left to assign.

The Nickersons did not consent to Wells Fargo and HSBC committing a felony offense by recording false and forged instruments in the County records – Montana Penal Code, Part I, Title VII, Chapter 4, Section 232. As demonstrated above, both assignments are false and according to the Montana Penal Code recording those assignments in the county records constitutes a felony offense.

The Nickersons did not consent to Wells Fargo and HSBC filing false assignments, securitizing their loan, corrupting the chain of title and concealing the true identity of the investor on their loan which has made it impossible for the Nickersons to cure any alleged default and provide any true security and clear title for their property.

The Nickersons did not consent to Wells Fargo and HSBC creating impossibility of performance. Wells Fargo refused to accept payments and blocked all efforts of the Nickersons and representatives working on their behalf to cure any alleged default, thereby, making it impossible for the Nickersons to perform their obligations.

Therefore, because Wells Fargo and HSBC committed illegal, fraudulent acts regarding this case, summary judgment in their favor must be denied and summary judgment in favor of the Nickersons must be granted.

ex maleficio non oritur contractus – a contract cannot arise out of an illegal act

fraus omnia vitiat – fraud vitiates everything

6. HSBC argues the Nickersons lack standing to challenge the validity of the assignments and that we live in Montana so “any arguments that the assignments violate New York trust law are irrelevant.” As expressed above and validated by the Paatalo Court, controlling case law is not restricted to the jurisdiction in which the case is tried and can be overruled by more recent decisions. The Paatalo Court (2012) cites cases from Virginia, Texas, and Washington to validate its findings. The Nickersons have cited a more recent case (2013) out of California (see Nickerson’s Reply Brief in Support of Defendants Motion for Summary Judgment, pages 12-13) which cites cases from New York and Texas determining the defendants do have standing to challenge assignments because they are void. Further, the fact that the assignments violate New York trust law is VERY relevant. HSBC through their trust agreements agreed to be governed by the laws of the state of New York (see Affidavit of Nick Nickerson in Support of Objection to Orders, ¶¶ 7 and 8). The New York Supreme Court has determined “Under New York Trust Law, every sale, conveyance or other act of the trustee in contravention of the trust is void. EPTL § 7-2.4. Therefore, the acceptance of the note and mortgage by the trustee after the date the trust closed, would be void.” Wells Fargo Bank, N.A. v. Erobodo (N.Y.Sup.Ct. 2013) 39 Misc.3d 1220(A) [2013 WL 1831799, p. *8]. This case also addressed the fact that the assignment was void because the chain of ownership was also in contravention to the PSA. “The assignment of the Defendant’s note and mortgage, having not been assigned from the Depositor to the Trust, is therefore void as in being in contravention of the PSA. The evidence submitted by Defendant that the note was acquired after the closing date and that assignment was not made by the Depositor, is sufficient to raise questions of fact as to whether the Plaintiff owns the note and mortgage, and precludes granting Plaintiff summary judgment.” Id. The assignments HSBC presents to claim ownership were not assigned or made by the Depositor. Therefore, under New York trust law, the law in which HSBC agreed to be governed, the assignments are void leaving HSBC with no claim of ownership to the Nickersons Note and Mortgage, and summary judgment in favor of HSBC must be reversed.

7. HSBC argues the Nickersons cannot prove they are not in default. However, as the moving party the burden of proof of default lies with HSBC. HSBC has provided no evidence to validate their claim the Nickersons are in default. The account history they provided is neither sworn to nor certified and is inadmissible according to M.R.Civ.P. 56(e)(1). Further, HSBC claims the verified complaint constitutes an affidavit supporting summary judgment. However, as discussed above in point 2, the verified complaint fails as a summary judgment affidavit because it is not made through personal knowledge, the affiant is not competent to testify to the matters stated and the supporting papers are not sworn to or certified M.R.Civ.P. 56(e)(1). In addition, HSBC claims default as of March 1, 2012, however, the Nickersons made their March 1, 2012, payment on March 1, 2012 (See Affidavit of Nick Nickerson in Support of Objection to Orders, Exhibit A). Even the inadmissible account history provided by HSBC shows the Nickersons paid their March 1, 2012, payment on March 1, 2012. Further, the Nickersons contend they have proven they did not default and can offer additional evidence during discovery that any alleged default was not caused by them. Wells Fargo (HSBC’s alleged servicing agent) prevented the Nickersons from curing any alleged default by aggressively and comprehensively blocking all efforts of the Nickersons to make payments and cure the alleged default. MCA § 28-1-1301. When delay or failure to perform or offer to perform excused. “The want of performance of an obligation or of an offer of performance, in whole or in part, or any delay therein is excused by the following cause, to the extent to which they operate: (1) when such performance or offer is prevented or delayed by the act of the creditor…” MCA § 28-1-1302. Effect when performance prevented by creditor. “If the performance of an obligation is prevented by the creditor, the debtor is entitled to all the benefits that the debtor would have obtained if the obligation had been performed by both parties.” Therefore, HSBC has failed to prove a default existed and intentionally prevented the Nickersons from curing any alleged default, and thus, as a matter of law, their claim of nonpayment of the debt lacks merit in its entirety.

8. HSBC and this Court claim the default letter sent to the Nickersons by Wells Fargo in May of 2012 fulfills the notice requirements of the Note and Mortgage. This is simply not true. The Note presented by HSBC specifically requires the “Note Holder” to provide Notice of Default (HSBC’s Summary Judgment, Exhibit A - ¶6(c)), not the loan servicer and although the Nickersons claim and have provided evidence to support their claim that HSBC is not the “Note Holder”, HSBC claims they are, and thus, must have abided by the express terms of the contract and sent the Notice of Default to the Nickersons themselves. In addition, the Mortgage presented by HSBC (HSBC’s Summary Judgment, Exhibit B) also makes it very clear the “Lender” is responsible for providing notice in the case of default and acceleration. Section 22 of the Mortgage states, “Lender shall give notice to Borrower…” Section 20 of the Mortgage makes a clear distinction between the “Loan Servicer” and “Lender”, and thus, in the express wording “Lender shall give notice” the clear and express intent of the contract is that the “Lender” not the “Loan Servicer” is required to give notice. Since HSBC is claiming to be the “Lender”, then they were required to send notice to the Nickersons not the “Loan Servicer”, Wells Fargo. Therefore, HSBC is in violation of the express terms of the alleged contract between HSBC and the Nickersons and the order granting summary judgment must be reversed. Further, as a matter of record, the Nickersons direct the Court’s attention to the default letter referenced by HSBC and the Court and request the Court note the default letter does not claim the Nickersons missed their March 2012 payment. Rather, it alleges the Nickersons missed their April and May payment. Therefore, as a matter of record, the default letter HSBC and the Court are relying on is further proof the Nickersons made their March payment HSBC is claiming they defaulted on and creates additional questions of material fact and fraud that precludes summary judgment. The Nickersons also request the Court note the letter states, “If foreclosure is initiated, you have the right to argue that you did keep your promises and agreements under the Mortgage Note and Mortgage, and to present any other defenses that you may have.”

Further, the default letter provided (HSBC’s Summary Judgment, Exhibit F) does not fulfill the express terms of the alleged Mortgage contract presented by HSBC. Section 20 of the Mortgage presented by HSBC required HSBC to provide notice before taking any judicial action, “Neither Borrower nor Lender may commence, join, or be joined to any judicial action…that arises from the other party’s actions pursuant to this Security Instrument…until such Borrower or Lender has notified the other party…” The default letter provided does not expressly state any intent to take judicial action. It merely states, “Once acceleration has occurred, we may take steps to terminate your ownership in the property by a foreclosure proceeding.” It does not state by a “judicial foreclosure” proceeding, and thus, does not fulfill the express terms of the alleged contract. In addition, Section 22 of the alleged Mortgage requires the acceleration notice to inform the Nickersons they have “the right to bring a court action to assert the non-existence of a default or any other defenses of Borrower to acceleration and sale.” The alleged acceleration notice provided fails to inform the Nickersons of their right to bring a court action, and thus, once again fails to fulfill the express terms of the alleged contract. Therefore, since the alleged acceleration notice does not include the express terms of the alleged Mortgage contract between HSBC and the Nickersons, HSBC has failed to provide the required notice to the Nickersons and the order granting summary judgment must be reversed.

CONCLUSION

The Court set forth the following requirements to establish a prima facie case for foreclosure: (1) the defendant’s debt; (2) nonpayment of the debt; and (3) the complaining party’s present ownership of the debt. As evidenced above, HSBC has failed to prove their right to claim the defendant’s debt, nonpayment of the debt and present ownership of the debt. First, HSBC has failed to prove nonpayment of the debt because 1) they have not submitted a valid summary judgment affidavit or a sworn to or certified account history, 2) the account history provided by HSBC and Exhibit A attached to Nick Nickerson’s supporting affidavit clearly show the Nickersons made their March 1, 2012 payment on March 1, 2012 which means they were not in default on that date as claimed by HSBC, and 3) HSBC’s alleged servicing agent, Wells Fargo, prevented the Nickersons performance and made it impossible for the Nickersons to cure any alleged default. Second, HSBC has failed to prove present ownership of the debt because, as a matter of law, the assignments provided that assign ownership to HSBC are void and HSBC has failed to produce the original note either indorsed in blank or indorsed to them and thus, cannot claim to be the note holder. HSBC has not proven the Defendants debt or non-debt has anything to do with them.

In addition to the fact HSBC has failed to prove the three requirements for a prima facie case for foreclosure, HSBC has not fulfilled the notice requirements of the alleged Mortgage contract and this Court must first consider the fact HSBC has failed to fulfill the express terms of the alleged Mortgage contract before granting a summary judgment for foreclosure. HSBC did not provide notice to the Nickersons at all and the notice provided by Wells Fargo did not provide notice of HSBC’s intent to initiate a judicial action and did not provide notice informing the Nickersons of their right to bring a court action to assert their defenses. Thus, HSBC has breached the notice provisions of the contract and their judicial foreclosure action must be dismissed.

Therefore, since HSBC has not proven a prima facie case for foreclosure and HSBC has breached the express notice requirements of the alleged contract, as a matter of law, the summary judgment granted to HSBC must be reversed and summary judgment in favor of the Nickersons dismissing HSBC’s claim for foreclosure must be granted.

Wherefore, the Nickersons request the Court reverse the order granting summary judgment to HSBC, enter an order granting summary judgment to the Nickersons and dismiss HSBC’s complaint.




Affidavit Of Nick Nickerson In Support of Objection To Orders

Affidavit of Nick Nickerson in Support of Objection to Orders

I, Nick Nickerson, swear (or affirm) under oath that:

1. I am a Defendant in the above-entitled action.

2. I have personal knowledge of the facts contained in this affidavit.

3. I am competent to testify to these facts.

4. I have in my possession, attested to by Curt Francisco, Branch Chief, Securities and Exchange Commission, “a copy of Form 8-K, current report, dated May 30, 2007, received in this Commission on June 14, 2007, under the name Wells Fargo Mortgage Backed Securities 2007-7 Trust, File No. 333-137620-12, pursuant to the provisions of the Securities Exchange Act of 1934.” This document is bound by a ribbon and officially sealed which prevents it from being copied. I would be happy to share it with the Court, however, these hundreds of pages can be found online on the Securities and Exchange Commission (SEC) website at http://www.secinfo.com/dRSm6.u1Dk.htm. Even so, if the Court wishes to have the paper copies in hand, I would be happy to loan them to the Court.

5.  I have personally reviewed Form 8-K and the attached exhibits.

6.  Form 8-K Exhibit 4.1 is the Pooling and Servicing Agreement, dated as of May 30, 2007, between Wells Fargo Asset Securities Corporation, Wells Fargo Bank, N.A. and HSBC Bank USA, National Association, as trustee.

7. The Pooling and Servicing Agreement states Wells Fargo and HSBC agree the trust will be governed in accordance with the laws of the State of New York.  “Section 10.04 Governing Law; Jurisdiction. This Agreement shall be construed in accordance with the laws of the State of New York (without regard to conflicts of laws principles), and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.”

8.  According to the Pooling and Servicing Agreement the closing date for the trust is May 30. 2007. “Section 11.20 Closing Date. The Closing Date is May 30, 2007.”

9.  The New York Supreme Court has ruled, “Under New York Trust Law, every sale, conveyance or other act of the trustee in contravention of the trust is void. EPTL § 7-2.4. Therefore, the acceptance of the note and mortgage by the trustee after the date the trust closed, would be void.” Wells Fargo Bank, N.A. v. Erobodo (N.Y.Sup.Ct. 2013) 39 Misc.3d 1220(A) [2013 WL 1831799, p. *8].

10.  I have reviewed the two assignments presented and the dates of the two assignments presented by HSBC are both dated after the closing date of the trust.

11. I have reviewed rulings by the New York Supreme Court that prevents the two assignments presented from being able to be entered into the trust legally.

12. According to New York law, the two assignments presented are void.

13.  I made my March 1, 2012, payment on March 1, 2012.

14. I am not in default for the March 1, 2012, payment as HSBC has claimed as a basis for this foreclosure action.

15. Wells Fargo has provided me written proof that I made my March 1, 2012, payment on March 1, 2012. See Exhibit A, a true and correct copy of a letter from Wells Fargo stating my payment to Wells Fargo Home Mortgage cleared on March 1, 2012.

16. Because of the decisions Wells Fargo and HSBC made to refuse my payments, to refuse to work with me in any way to correct or cure any alleged default, to refuse to explain the origin of substantial “additional fees” added to my account, to refuse to allow their own representatives access to my account, to sanction my access to other financial resources, and to intentionally damage my credit, I was held financially hostage. 

17.  I did not default on my loan with Wells Fargo. Any alleged default that may or may not exist on the loan at this time was solely created by Wells Fargo and was maliciously prevented from being cured by Wells Fargo. Wells Fargo’s actions and decisions made it impossible and prevented me from curing any alleged default. Wells Fargo refused to allow me to cure any alleged default. Wells Fargo refused to allow others, including their own representatives, to assist me in curing any alleged default.

18.  My wife, children and I are victims of fraud, theft, unfair debt collection, mortgage abuse and wrongful foreclosure.

19. My wife and I have shown extraordinary commitment and responsibility for our obligations on this loan.

20. I did not agree or authorize Wells Fargo or any other entity to commit unlawful acts that could contaminate the chain of title or threaten my ownership of our family property.

21. I can provide witness testimony and documentation to fully support and validate my claims and defenses.

22. Wells Fargo has considerable overall corporate reasons to force a foreclosure on our property, seize our assets, and hold hostage our financial ability to pursue recourse and restitution for their actions.

23.  HSBC never sent a Notice of New Creditor to me as required by 15 U.S.C. § 1641(g).

24. HSBC never informed me that HSBC was in any way involved with my loan.

25.  HSBC has never informed or admitted to me that HSBC is in any way involved in this foreclosure action.

26.  I have never made any payment to HSBC.

27. I have personal knowledge my wife has never made a payment to HSBC.

28. HSBC has suffered no injury by any alleged default of mine, and thus, does not have standing to foreclose. Form 8-K Exhibit 10.1 – Servicing Agreement “12.4.1. Advance Responsibility During Delinquency. In the event of a Delinquency with respect to a Mortgage Loan, the Servicer 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.” According to this agreement, if HSBC has suffered any injury because of an alleged default, it is due to the fact Wells Fargo has not advanced payments from their own funds as required in the trust agreements.

29.  HSBC has denied in writing any involvement with the foreclosure on my property.

30. Wells Fargo has denied any involvement with the foreclosure on my property on numerous occasions and in the presence of numerous parties.

31. According to HSBC and their trust agreements, the servicer is responsible for foreclosure. Form 8-K Exhibit 10.1 Servicing Agreement “13.1.1. Foreclosure/Alternative to Foreclosure Initiation. …the Servicer shall either begin the foreclosure process or suggest an alternative to foreclosure…”

32.  The only entity that has claimed HSBC is foreclosing on my property is Erika Peterman of RCO Legal, a Washington based law firm.

33. Erika Peterman is utilizing illegal assignments and non-certified or sworn to account records to claim standing to foreclose.

34.  I have personally read and reviewed the terms of the Note and Mortgage HSBC attached to their cross-motion for Summary Judgment and their Complaint.

35.  I have personally read and reviewed the unauthenticated default letters/acceleration notices HSBC attached to their cross-motion for Summary Judgment.

36. According to the terms of the Note and Mortgage provided by HSBC, HSBC is required to send the acceleration notice which must notify me of their intent to take judicial action and of my right to pursue a court action to assert my defenses. None of the notices provided are from HSBC, none of them include the proper notifications of their intent to take judicial action and none of them inform me of my right to bring a court action to assert my defenses.

37. In response to a RESPA QWR (qualified written request), Wells Fargo provided the attached copy of the original Note (Exhibit B). Exhibit B is a true and correct copy of the Note Wells Fargo provided in response to a QWR.

38. I have read and reviewed Exhibit B. Exhibit B is not indorsed which raises genuine issues of fact and fraud regarding the authenticity, credibility and legality of the Note HSBC attached to their complaint and summary judgment motion (See Complaint Exhibit A and HSBC’s Summary Judgment Exhibit A).

39.  I am competent to testify and have personal knowledge that there can only be one original note.


Sometime during September or October 2014, the Court, Judge Mike Menahan, had a conversation with our adult children at the Helena Farmer’s Market. We were at market with our made in Montana products. They introduced themselves as the Nickersons and asked him why he did not allow us to have oral argument as requested and urged him to allow us to stand before him. Mr. Nickerson was present during the conversation but did not speak to or address Judge Menahan.

From October 22, 2014, through November 28, 2014 Responses and Replies were filed regarding our objections.

On November 19, 2014, the Court issued its order setting hearing in which it vacated its order on summary judgment and set oral argument for December 8, 2014. The envelope containing this order is postmarked November 26, 2014, and we did not receive the order in our mailbox until Saturday, December 6, 2014. The Court was informed of this and we requested the hearing be rescheduled to allow us to prepare for it. We indicated our desire to provide witness testimony at the hearing. We were told to attend the hearing and the Court would work with us regarding the fact we were not timely notified, had no time to prepare oral argument, and to discuss how we could provide witness testimony.

On December 8, 2014, oral argument was held and we detailed the prevention of performance issues we experienced with Wells Fargo and provided evidence Wells Fargo would not take our payments. There was no doubt there was an issue of fact regarding default that prevented summary judgment in favor of HSBC.

 [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.

[The court speaking about the Nickersons]...(they) 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

[Mrs. Nickerson] But we were never given the opportunity to reinstate this loan at any time by Wells Fargo. Were not. … But Wells Fargo, their people that are supposed to help you… Home preservation people. When cornered, … Can you give us a loan modification? And he said, “No, because your note has been entered into a mortgage-backed securities … Even if you want to make the payments, there is nothing we can do.”… “Let us get this straight…you refused our payments, would not take them, and now you are telling us that you have already gone into this foreclosure thing, and that you cannot offer us any type of a payment plan, of a modification plan, and will not reinstate the loan? Is that correct?” And the answer was, “Yes.”
                                                                                                                           Transcript, p. 68:11 - 69:18.  

[Erika Peterman] So it could create a factual dispute with Wells Fargo, but not with HSBC… I mean, they can bring claims against Wells Fargo, or against HSBC, for either of them maybe not accepting payments… Well, everything they say could create an issue of fact.                                                                           Transcript, 14:6-8; 28:18-21; 47:22-23

[Mrs. Nickerson] So we have done, as far as I’m concerned, super human efforts to try to honor our obligations. Our entire life has been changed because of dealing with this. And it’s just – I don’t know. I guess we respectfully plead with you to give us a chance to keep presenting the evidence.                                                                       Transcript, p. 75:8-14.

At the hearing our adult son made a motion for intervention on behalf of all of our children and heirs. Erika Peterman objected, and the opportunity to present testimony or argument was denied. No instructions on how to provide this testimony, which is admissible based on ld be heard was offered. No instructions on how to provide additional evidence or testimony as promised prior to the hearing was offered. The Judge abruptly left the hearing due to an outbreak from Ms. Peterman without providing any instructions. We were told by the clerks present to wait for the Court to provide additional instructions to submit anything additional.

On January 22, 2015, the Court granted summary judgment in favor of HSBC. Due to no fault of the Nickersons, the summary judgment process consumed over a year of time – more than 365 days. His judgment penalized the Nickersons by using those days to calculate judgment.

On February 19, 2015, we filed a series of post judgment motions including a motion to provide proof of authority. Proof of Authority had been judicially requested multiple times. Final briefing of these motions occurred on March 26, 2015. The Court ignored our Brief In Support of Motion For New Trial and Motion to Alter or Amend Findings of Fact Conclusions of Law and Judgment; Reply Brief in Support of Motion For New Trial And Motion to Alter or Amend Findings of Fact, Conclusions of Law and Judgment; and Reply In Support of Motion to Provide Proof of Authority.


Brief In Support of Motion For New Trial and Motion to Alter or Amend Findings of Fact, Conclusions of Law and Judgment

Brief In Support of Motion For New Trial and Motion to Alter or Amend Findings of Fact, Conclusions of Law and Judgment

COMES NOW, Defendants, Nick and Donna Nickerson, submit this Brief in Support of their Motion for New Trial and Motion to Alter or Amend Findings of Fact, Conclusions of Law and Judgment in accordance with M.R.Civ.P. 59(a) and 59(e) and MCA § 25-11-102(1)(3)(4).

MCA § 25-11-102.  Grounds for new trial.

(1) irregularity in the proceedings of the court, jury, or adverse party or any order of the court or abuse of discretion by which either party was prevented from having a fair trial; (3)  accident or surprise that ordinary prudence could not have guarded against;

(4)  newly discovered evidence material for the party making the application that the party could not, with reasonable diligence, have discovered and produced at the trial;

The irregularity of the proceedings in this case by HSBC and the resulting abuses of discretion by this Court are numerous and have prevented the Nickersons from receiving a fair trial. In addition, many of the issues detailed below warrant an Altering or Amending of Findings of Fact, Conclusions of Law and Judgment.

 

IRREGULARITY OF PROCEEDINGS

I. Opposing counsel lost her temper and Judge Menahan abruptly retreated to chambers thereby prematurely ending oral argument leaving the Nickersons with unanswered questions and wondering what to do next.

At the close of oral argument the judge was in the process of providing instructions and answering questions regarding the proceedings and the next steps when opposing counsel became extremely agitated, lost her temper, aggressively jumped out of her seat and stepped threateningly toward the Nickersons at which time Judge Menahan abruptly retreated to his chambers and opposing counsel stormed out of the courtroom thereby ending oral argument and severing the Nickersons communication pipeline with the Court. This irregular, sudden, abrupt and premature ending to oral argument left the Nickersons with unanswered questions and wondering what to do next, and resulted in an unfair trial because the Nickersons were left hanging regarding future proceedings, their answers and counterclaims and instructions on how, when or where to submit additional evidence.

II. No one from HSBC has authenticated the claims against the Nickersons.

In the Nickersons’ motion for summary judgment, the Nickersons provided letters from HSBC in which HSBC denied any involvement with the foreclosure and stated Wells Fargo is responsible for foreclosures. It is highly irregular for the alleged Plaintiff to deny any involvement with the Complaint it is supposedly prosecuting, and coupled with the fact none of the evidence HSBC’s counsel has submitted is sworn to or certified by HSBC nor are there any affidavits from HSBC, the entire legitimacy of HSBC’s claims are questionable and unsubstantiated by HSBC. This irregularity in the proceedings has prejudiced the Nickersons and prevented them from receiving a fair trial because their accuser has never come forward and one can not defend against or negotiate with an entity who claims no responsibility for their Complaint.

During oral argument the Nickersons requested proof of authority but none was provided. The Nickersons requested this proof previously and are requesting it again. Without proof of authority, the Complaint is illegitimate and so are any rulings. 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.”

In addition, the Nickersons face the grave possibility of double liability and double payment of their note since this court has ruled in favor of an entity that has not provided any proof they are in possession of the note and has repeatedly denied any involvement in this action. This is why the Nickersons communicated in oral argument, no competent financial advisor would advise the Nickersons or any other client to make payments to an unknown entity just because they suddenly claimed ownership of a debt based on void and unlawful documentation. The undisputable fact is HSBC has taken no steps to claim responsibility for this complaint, and has provided no legal proof they are the holder of the Nickerson Note or that the Nickersons are in any way obligated to make payments to them. According to New York law, HSBC’s agreements, and HSBC’s admissions, the assignments HSBC relies upon for ownership are not valid or lawful and are, in fact, void. Not even the Court can truly accept them as lawful. HSBC has failed to provide any proof that they are actually in possession of the Note and that the Note is indorsed to them. Therefore, since HSBC, the plaintiff, has denied any involvement in their complaint and has refused to provide any proof they are the holder of the Nickersons Note, HSBC’s complaint must be dismissed and the summary judgment order vacated.

III. HSBC’s cross-motion for summary judgment barred the Nickersons from discovery.

The Nickersons filed for summary judgment in order to force HSBC to prove standing because 1) neither of the entities allegedly involved with the Nickersons loan, Wells Fargo as alleged loan servicer and HSBC as alleged lender, claimed they were responsible for this complaint, 2) HSBC had not provided any proof they were the “person entitled to enforce” the Note (the copy of the Note they provided is indorsed to Wells Fargo), 3) HSBC had not adhered to the terms of the alleged contract and, 4) evidence of fraud was present. In response, HSBC filed a cross-motion for summary judgment without submitting any admissible evidence or providing any affidavits to refute the Nickersons arguments. See point VI below. Since the time HSBC filed their cross-motion for summary judgment, HSBC has used that motion to bar any discovery and to block the Nickersons claims and defenses. Discovery is paramount to a party’s case and a just resolution based upon the merits. By barring the Nickersons from discovery, HSBC has been allowed to hide and conceal the evidence regarding their illegal assignments, the prevention of performance actions of Wells Fargo and the fact that they do not hold or possess the Nickerson Note. In addition, compounding the irregularities of the proceedings, HSBC’s cross-motion for summary judgment did not present any admissible evidence validating their claims. None of their evidence is sworn to or certified by HSBC. Therefore, since HSBC barred the Nickersons from discovery, the Nickersons have been barred from justice and from having a fair trial and since none of the evidence submitted by HSBC is admissible (see point VI), summary judgment must be vacated.

IV. HSBC’s cross-motion for summary judgment and this Court’s actions have barred the Nickersons from presenting their meritorious defenses and claims.

HSBC’s cross-motion was untimely and irregular because it was presented prior to any discovery taking place and was then used to prevent the Nickersons from presenting their affirmative defenses and counterclaims. In accordance with the Court’s scheduling order and order to extend time, the Nickersons filed a motion to amend their answers and counterclaim on March 21, 2014. According to Uniform District Court Rule 2, if a party does not file a brief in response to a motion within 14 days the motion is deemed admitted. HSBC did not respond to the motion within the 14 day timeframe, and therefore, the motion was deemed admitted. However, a highly irregular chain of events then occurred. On May 27, 2014, over two months after the motion to amend was filed, HSBC filed a motion for relief to file a late response and on May 30, 2014, only 3 days after the motion for relief was filed and without allowing the Nickersons time to respond to HSBC’s motion for relief, which is an irregular proceeding, this Court entered an order granting relief and permitting HSBC to respond to a motion that was already deemed admitted. Then, instead of responding to our amended answers and claims, HSBC responded with a brief which requested this Court to deny the Nickersons amended pleadings only because the amended pleadings were, in their view, prejudicial to HSBC’s irregular and untimely cross-motion for summary judgment. This Court then abused its discretion by denying the Nickersons their procedural and contractual rights to present any defense they may have and assert any claims they might have based solely on HSBC’s untimely and irregular cross-motion for summary judgment. Therefore, the irregularity of the proceedings surrounding the Nickersons motion to amend has barred the Nickersons from presenting their meritorious claims and defenses which prevented them from having a fair trial.

V. The Nickersons were not provided with time to prepare for oral argument and a summary judgment “hearing” was not held.

The Nickersons contacted the Court’s scheduling clerk on numerous occasions in an attempt to schedule a hearing. Then unexpectedly, the Court finally scheduled oral argument for December 8, 2014, and sent the notice via US Mail. The Nickersons did not receive the notice from the USPS until Saturday, December 6, 2014, just two days prior to the hearing and those days being the weekend did not leave the Nickersons adequate time or opportunity to prepare for oral argument. On Monday morning, December 8, 2014, the day of oral argument, the Nickersons notified the Court’s clerk that they did not receive the notice from the USPS until December 6, 2014, and they questioned whether or not the oral argument should be rescheduled because they were not ready. The clerk told the Nickersons that she expressed their concerns to the Court but the Court said to relax and not worry and come to oral argument and that if the Nickersons wanted to add anything after oral argument the Court would permit it. During oral argument the Nickersons found out that it was not a hearing and witness testimony was not permitted, and thus, the Nickersons were not allowed to fully present their evidence. Nevertheless, during argument, HSBC admitted there were genuine issues of material fact regarding the facts of the case so the Nickersons were of the understanding the Court could not grant summary judgment to HSBC. In addition, as detailed in point I above, oral argument ended prematurely when opposing counsel lost her temper and threateningly approached Mrs. Nickerson and Judge Menahan abruptly retreated to his chambers leaving the Nickersons with unanswered questions. The Nickersons had been permitted to briefly argue in favor of amending their answer and counterclaim but oral argument ended so suddenly and abruptly that the Nickersons were left wondering what to do next. After oral argument, the Court did not set a time for additional materials to be submitted as was communicated to the Nickersons that morning that he would do so, and thus, the Nickersons were prevented from gathering and submitting additional evidence in their defense. The Nickersons were shocked when the Court ruled against them despite the facts; 1) HSBC admitted the evidence the Nickersons provided created genuine issues of material fact, 2) HSBC had not submitted any admissible evidence, 3) HSBC provided no proof it held or possessed the Nickerson Note, 4) HSBC admitted to prevention of performance and refusal to work with the Nickersons to save their home in any way, 5) HSBC validated the Nickersons evidence regarding the invalid, void and illegal assignments but argued the Nickersons could not challenge the assignments because they were not a party to the agreements, 6) HSBC claimed they were not responsible for their Complaint and, 7) The Court had indicated the Nickersons would be permitted to supplement their evidence and that the Court was considering allowing their amended pleadings and instructions would be provided. Therefore, the proceedings surrounding oral argument were irregular and prejudicial and prevented the Nickersons from having a fair trial because the Nickersons were not provided with time to prepare for oral argument, the hearing was not a summary judgment hearing that permitted testimony and additional evidence, and the hearing ended abruptly due to opposing counsel losing her temper and threatening Mrs. Nickerson leaving the Nickersons wondering what to do next, and thus, a new trial is appropriate, essential for justice and must be granted.

VI. It was highly irregular for HSBC to rely on inadmissible evidence for summary judgment and it was an abuse of discretion to ignore the Rule 56 guidelines.

This Court stated, “In support of its motion, HSBC Bank presented evidence that it currently holds the note and mortgage on Nickersons’ property.” However, HSBC’s claim that their verified complaint suffices as a summary judgment affidavit is incorrect and unlawful. M.R.Civ.P. 56(e)(1) specifically states any affidavits must be made upon personal knowledge and show the affiant is competent to testify on the matters stated. The verified complaint is signed by HSBC’s attorney who does not have any personal knowledge of the underlying facts or claims nor has she shown she is competent to testify on the matters stated. In addition, the documents HSBC provided to claim default and notice of acceleration are not sworn to nor certified as required by Rule 56(e)(1), and thus, are not admissible as evidence.

 

“We have previously held that "an attorney's affidavit `is admissible only to prove facts that are within his personal knowledge and as to which he is competent to testify; an affidavit stating what the attorney believes or intends to prove at trial will be disregarded.'"(citations omitted) …We have extended the personal knowledge requirement to attached exhibits as well. (citation omitted)… We excluded the three documents because "without an affidavit or sworn discovery response of a Ford employee with personal knowledge of the genuineness, relevance and contents of the documents, the attachments to Ford's brief were little more than inadmissible hearsay." (citations omitted) Hiebert v. Cascade County, 2002 MT 233, 311 Mont. 471, 56 P.3d 848 (2002)

According to the Montana Supreme Court, HSBC’s verified complaint does not pass the personal knowledge or competency requirements of Rule 56(e) and HSBC’s exhibits are nothing more than inadmissible hearsay. Therefore, HSBC has not presented any admissible evidence that they are the present owner of the debt (holder of the Note) or that the Nickersons defaulted on the loan (nonpayment of the debt), and thus, HSBC has not proven a prima facie case for foreclosure, and this Court abused its discretion by granting summary judgment to HSBC and the order must be vacated.

Further, Rule 56(e)(2) states, “When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.” HSBC, in their response to the Nickersons’ Motion for Summary Judgment relied merely on the allegations in their pleadings. HSBC has never submitted an affidavit to promote their claim of ownership or holder status regarding the Nickerson Note and Mortgage nor have they submitted any affidavit or certified evidence to refute the Nickersons claims of prevention of performance. Therefore, according to Rule 56(e)(2), summary judgment in favor of the Nickersons should have been granted, and thus, this Court has abused its discretion regarding the entire summary judgment process, the Nickersons have been prevented from having a fair trial and the order granting summary judgment to HSBC must be vacated.

VII. HSBC has violated the Montana Rules of Civil Procedure

It is an irregular proceeding to violate the rules of civil procedure. HSBC violated the Montana Rules of Civil procedure by failing to fulfill the requirements set forth in M.R.Civ.P.  5.2(a) and 7.1 and in accordance with Rule 41(b), their complaint must be dismissed with prejudice.

            1.   M.R.Civ.P. 5.2 Privacy Protection for Filings Made With the Court.

(a) Redacted Filings. Unless the court orders or the law requires otherwise, in any filing with the court that contains an individual’s social security number, taxpayer identification number, or birth date, or a financial account number, a party or nonparty making the filing must include only:

(1) the last four digits of the social security number or taxpayer       identification number;

(2) the year of the individual’s birth; and

(3) the last four digits of the financial account number.

HSBC did not protect the Nickersons’ privacy in their filings. The alleged account history and notices (See HSBC’s Brief in Response to Defendant’s Motion for Summary Judgment and Brief in Support of Plaintiff’s Cross-Motion for Summary Judgment, Exhibits E, F and G) HSBC provided to support their cross-motion for summary judgment contain the Nickersons full loan number which was required to be redacted by M.R.Civ.P. 5.2(a) and was especially critical in light of being filed in a wrongful foreclosure action. Therefore, because of HSBC’s complete disregard for the Nickersons’ privacy and their contemptuous violation of Rule 5.2(a), HSBC’s complaint must be dismissed.

            2.   M.R.Civ.P. 7.1 Disclosure Statement.

(a) Who Must File; Contents. A nongovernmental corporate party must file and serve a disclosure statement that:

(1) identifies any parent corporation and any publicly held corporation owning 10% or more of its stock; or

(2) states that there is no such corporation.

(b) Time to File; Supplemental Filing. A party must:

(1) file and serve the disclosure statement with its first appearance, pleading, petition, motion, response, or other request addressed to the court; and

(2) promptly file and serve a supplemental statement if any required            information changes.

HSBC did not file and has not filed a disclosure statement as required by Rule 7.1, and therefore, HSBC’s complaint must be dismissed.

            3.   M.R.Civ.P. 41(b) Involuntary Dismissal; Effect.

If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule -- except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 -- operates as an adjudication on the merits.

HSBC has failed to comply with M.R.Civ.P. 5.2(a), and 7.1. HSBC violated the Nickersons privacy by not filing redacted documents as required by Rule 5.2(a). HSBC did not file a disclosure statement as required in Rule 7.1. Therefore, since HSBC has failed to comply with the rules, in accordance with M.R.Civ.P. 41(b) “If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it,” (emphasis added) the Nickersons move the Court to dismiss the Plaintiff’s complaint.

As demonstrated in the seven points above the entire proceedings in this case have been irregular and prejudicial to the Nickersons receiving a fair trial. Oral argument was abruptly and prematurely ended due to opposing counsel losing her temper and Judge Menahan retreating to his chambers. The Nickersons were barred from discovery. The Nickersons were barred from presenting their defenses and asserting their claims. The Nickersons were not given adequate time to prepare for oral argument nor was oral argument a hearing in which additional evidence and testimony could be presented. No one from HSBC has provided anything to validate or substantiate their attorney’s claims and HSBC has violated the rules of civil procedure requiring their complaint be dismissed. Therefore, since these proceedings have been highly irregular and have prevented the Nickersons from having a fair trial, the Nickersons motion for a new trial must be granted.

ABUSE OF DISCRETION

I. This Court abused its discretion by disregarding the express terms of the alleged contract.

HSBC has failed to fulfill the requisite conditions precedent as detailed in the alleged Note and Mortgage contracts and it is an abuse of discretion to nullify the express terms of a contract. Although this violation is based on the specific language of the contract regarding the “Lender’s” interaction with the Nickersons, the Nickersons are not acknowledging nor has any verified or admissible evidence been presented that HSBC is the “Lender” as claimed by HSBC. However, since HSBC claims they are the “Lender”, then they must be held to the terms of the alleged contract. Therefore, HSBC has violated the terms of the alleged contract creating genuine issues of material fact that prevent summary judgment in their favor because; a) HSBC, as Lender, did not send the Nickersons a notice of default or notice of acceleration and, b) HSBC did not notify the Nickersons of the Nickersons’ right to bring a court action to assert any defenses they may have.

MCA § 28-1-403. Condition precedent defined. “A condition precedent is one which is to be performed before some right dependent thereon accrues or some act dependent thereon is performed.”

According to the terms of the alleged contract, HSBC could not accelerate the loan or initiate a Complaint for Foreclosure prior to fulfilling the following conditions precedent as detailed in the alleged Mortgage presented with their complaint (See Complaint, Exhibit B)

 “22. Acceleration; Remedies.  Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument…

1. HSBC, as the alleged Lender and according to Section 22 of the alleged Mortgage, was required to provide the Nickersons with notice of default and acceleration not the “Loan Servicer”. The express terms of the Mortgage state, “Lender shall give notice to Borrower prior to acceleration…” not the “Loan Servicer shall give notice to Borrower”. Section 20 of the Mortgage provides a clear distinction between “Lender” and “Loan Servicer”, and thus, the alleged notice provided by Wells Fargo, the alleged servicer, does not fulfill the condition precedent expressly stated in the Mortgage that requires “Lender shall give notice…” Therefore, since HSBC did not fulfill the condition precedent of “Lender shall give notice to Borrower prior to acceleration…”, HSBC, by contract, is barred from acceleration and foreclosure, and HSBC’s complaint must be dismissed.

2. HSBC did not fulfill the conditions precedent regarding the contents of the notice. Not only was the alleged notice not sent by HSBC, the contents of the alleged notice did not include the express contents required by the alleged Mortgage contract. Section 22 of the Mortgage presented by HSBC states, “The notice shall further inform Borrower of…the right to bring a court action to assert the non-existence of a default or any other defense of borrower to acceleration and sale.” (emphasis added) The alleged notice provided (See HSBC’s Summary Judgment Exhibit F) does not inform the Nickersons of their right to bring a court action and to assert any defense they may have.

According to Montana Law, MCA § 28-1-403, “A condition precedent is one which is to be performed before some right dependent thereon accrues or some act dependent thereon is performed.” Before HSBC could assume the right to accelerate the Nickerson Note and foreclose on the Nickerson Mortgage, they were required by the alleged contract to provide notice with very specific contents. Since HSBC did not provide notice, and since HSBC did not notify the Nickersons of the Nickersons’ right to bring a court action to assert any defenses they may have, HSBC did not obtain the rights to accelerate and foreclose because those rights were dependent upon the requisite condition precedent to provide the Nickersons with notice. Therefore, HSBC has no right to action in this Court and their complaint must be dismissed.

This Court abused its discretion by nullifying the express terms of the alleged contract which require HSBC to provide notice with explicit verbiage. Therefore, this Court must vacate its order granting summary judgment to HSBC and must enforce the terms of the alleged contract which require a dismissal of HSBC’s complaint.

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”, and b) “The evidence does not support the Nickersons’ argument that they are not in default or that any default is a result of the actions of Wells Fargo or Wells Fargo Home Mortgage.”

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.

Another error this Court has made regarding default is stating the Nickersons defaulted on their March 1, 2012, payment. The Nickersons did not default on their March 1, 2012, payment. The Nickersons have provided proof their March 1, 2012, payment cleared on March 1, 2012. See Affidavit of Nick Nickerson in Support of Objection to Orders , ¶ 15 and Ex. A. Therefore, HSBC’s complaint is false and it is an abuse of discretion to grant judgment based on a false complaint and the complaint must be dismissed.

III. This Court abused its discretion by accepting HSBC’s claim to hold and own the Nickerson Note and Mortgage and by not requiring HSBC to produce the Note.

HSBC has not established it is the “person entitled to enforce” the Nickerson Note. HSBC has not proven it is the “holder” of the Note because they have not shown they are in possession of the Note as required by MCA § 30-1-201(2)(v)(i) "’Holder’ means: the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession” nor have they demonstrated a right to enforce the note because they have not produced it. “As a result of the Bank’s status as a ‘holder’ and its production of the instrument, it is entitled to recover unless the defendant establishes a defense. Section 30-3-307(2) MCA.” (emphasis added) Culbertson St. Bank v. Dahl, 190 Mont. 33, 617 P.2d 1295 (1980).

HSBC claims they are entitled to enforce the Note and Mortgage because they are the owner of the Mortgage based on the assignments of record (which the Nickersons, governing laws and regulatory guidelines still contend are not valid or legal). However, a mere record of assignment is not enough to establish holder status. In order for the assignment (according to the law known as negotiation) of a Note to have legal affect a transfer of possession must take place.

MCA § 30-3-202. “Negotiation. (1) ‘Negotiation’ means a transfer of possession, whether voluntary or involuntary, of an instrument to a person who thereby becomes its holder if possession is obtained from a person other than the issuer of the instrument. (2)  Except for negotiation by a remitter, if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder. If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.”

HSBC has not demonstrated they are in possession of the Note, and thus, cannot claim the rights of the holder or that assignment and negotiation has truly taken place. HSBC has not produced the original note and has not produced any evidence to demonstrate “holder” status. In addition, as demonstrated in the record, the copy of the note provided by HSBC is indorsed to Wells Fargo and must, according to law, be indorsed to HSBC by Wells Fargo to complete the negotiation process.

MCA § 30-3-204. “Special indorsement -- blank indorsement -- anomalous indorsement. (1) If an indorsement is made by the holder of an instrument, whether payable to an identified person or payable to bearer, and the indorsement identifies a person to whom it makes the instrument payable, it is a "special indorsement". When specially indorsed, an instrument becomes payable to the identified person and may be negotiated only by the indorsement of that person. The principles stated in 30-3-126 apply to special indorsements.

            (2)  If an indorsement is made by the holder of an instrument and it is not a special indorsement, it is a "blank indorsement". When indorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially indorsed.

            (3)  The holder may convert a blank indorsement that consists only of a signature into a special indorsement by writing, above the signature of the indorser, words identifying the person to whom the instrument is made payable.”

 

Since according to MCA § 30-3-204(3) the Note is specially indorsed to Wells Fargo, according to MCA § 30-3-202, in order for negotiation of the Note to occur both an indorsement from Wells Fargo to HSBC must occur and a transfer of possession from Wells Fargo to HSBC must occur. Therefore, since a transfer of possession to HSBC and an indorsement to HSBC has not been demonstrated by HSBC, HSBC cannot claim holder status or the right to enforce the Note and thus, according to the law, their complaint must be dismissed and the order granting HSBC summary judgment must be vacated. By allowing its judgment to stand, this Court, in effect, is granting foreclosure based on an assignment document alone. This ruling would make it possible for anyone to forge an assignment, get a copy of the mortgage and foreclose.

To further demonstrate genuine issues of material fact regarding HSBC’s claim, the Nickersons provided a copy of the Note Wells Fargo claims to be a copy of the original Note which contains no additional signatures or indorsements other than the Nickersons. See Affidavit of Nick Nickerson in Support of Objection to Orders, ¶¶ 37 and 38. Since genuine issues of material fact exist regarding the originality of the Note itself and HSBC’s “holder” status, as a matter of law, the order granting summary judgment to HSBC must be vacated. Therefore, this Court abused its discretion by not requiring HSBC to produce the Note in order to prove it is indorsed to them, it is in their possession and they are the “person entitled to enforce” it.

IV. This Court abused its discretion by denying the Nickersons amended pleadings due to prejudice.

The Nickersons filed their amended pleadings in accordance with this Court’s scheduling order and order to extend time, however, HSBC used its cross-motion for summary judgment to claim prejudice and bar the Nickersons amended pleadings. This Court has abused its discretion by allowing HSBC to use their cross-motion for summary judgment to bar discovery, bar the Nickersons amended pleadings and nullify the express terms of the contract.

M.R.Civ.P. 15(a)(2) states, “The court should freely give leave when justice so requires.” and the case law permitting amendments is extensive.

In the Nickersons’ case, it was an abuse of discretion to deny their amended pleadings because the amended pleadings contained their defenses and claims which are specifically permitted in the alleged contract and justice requires the Nickersons be allowed to present their claims and defenses. In addition, this Court did not address or refute the case law the Nickersons presented that refuted HSBC’s claim. One specific case is detailed below.

“In this case, Ranch Recovery sought leave to amend its counterclaim as soon as newly discovered evidence came to light. We conclude that the interests of justice and judicial efficiency favor the amendment of Ranch Recovery’s pleadings so that all claims arising from the same transaction may be resolved in the same action. This policy, which underlies the rules of civil procedure, outweighs any prejudice to the Bank. Therefore, we conclude that the District Court abused its discretion when it failed to allow Ranch Recovery to amend its counterclaim.” First Sec. Bank v. Ranch Recovery Ltd., 1999 Mont. 43, 976 P.2d 956 (1999)

The Nickerson amended their pleadings within the time allotted by the Court and the amendments contained new defenses and claims based on the evidence they had available at that time. The Montana Supreme Court has concluded that it is in the interest of justice to favor amendments presenting new claims that arise from the same transaction so that they may be resolved in the same action and stated, “This policy, which underlies the rules of civil procedure, outweighs any prejudice to the Bank.” Therefore, since the Montana Supreme Court has determined the interests of justice outweigh any prejudice to the bank, it was an abuse of discretion for this Court to deny justice by denying the Nickersons amended pleadings.

The abuses of discretion of this Court documented above have severely impaired the Nickersons rights to a fair trial and require a new trial be granted.

 

SURPRISE

The Nickersons were surprised by HSBC’s cross-motion for summary judgment in response to their summary judgment which questioned HSBC’s standing. The Nickersons filed their motion for summary judgment regarding standing because they understood it was the appropriate and only time they could challenge standing and present their evidence to prove HSBC had none. During oral argument the Court affirmed that the Nickersons motion for summary judgment questioning standing was filed at the appropriate time.

The Nickersons were surprised by the fact HSBC could use their rule violating cross-motion for summary judgment as a tool to bar discovery and to bar the Nickersons from presenting their meritorious defenses and claims. Because the Nickersons were surprised by HSBC’s cross-motion for summary judgment the Nickersons have been prevented from having a fair trial because they were barred from discovery and barred from amending their pleadings, and therefore, a new trial must be granted.

 

NEW EVIDENCE

The below list of new evidence the Nickersons could present to this court well substantiates all of the Nickersons’ claims and irrefutably defeats HSBC’s claims.

A. Letters, receipts, affidavits and testimony from the numerous Wells Fargo bankers, tellers, loan specialists and other representatives from Wells Fargo that attest to the prevention of performance actions of Wells Fargo.

B. Letters, affidavits and testimony from Wells Fargo representatives and employees attesting to the fact the Nickerson honor and uphold their financial commitments and obligations.

C. Evidence from the State of New York Attorney General’s Office demonstrating they filed a complaint with the CFPB (Consumer Financial Protection Bureau) on the Nickerson’s behalf after independently reviewing the documentation provided by the Nickersons questioning the legalities and facts surrounding the void assignments presented by HSBC.

D.  Evidence from the State of Montana Attorney General’s Office of Consumer Protection demonstrating Wells Fargo’s unwillingness to help resolve the situation.

E. Evidence demonstrating there are no federal or state programs in place to help the Nickersons resolve this situation.

F. Evidence from the State of Montana Banking Commissioner’s Office demonstrating HSBC’s admission they are not involved with this action.

G. Testimony from HSBC representatives who have personal knowledge of the their agreements, policies, procedures, governing laws and the Nickersons’ account.

H. Testimony from Wells Fargo representatives who have personal knowledge of the their agreements, policies, procedures, governing laws and the Nickersons’ account.

I. Eyewitness testimony regarding Wells Fargo’s prevention of performance.

J. Testimony from State of Montana representatives or employees who have familiarity with banking regulations, trusts, consumer protection, fraud, forgery, certificates, proof of authority, business licensing, laws, regulations, etc.

K. Testimony from Mortgage Forensic experts.

L. Taped conversations between Wells Fargo and the Nickersons.

In addition, there is a substantial amount of evidence that has not yet been discovered because discovery has never been permitted and has been unlawfully thwarted. Therefore, because of this new evidence and the new evidence that would be provided if discovery is permitted, the Nickersons should be granted a new trial.

 

ALTER OR AMEND JUDGMENT

Based on the facts, rules, laws and issues presented above and summarized below the Nickersons request this Court to alter or amend its judgment, findings of fact and conclusions of law and dismiss HSBC’s complaint.

 

I. FINDINGS OF FACT

A. The Court claimed the Nickersons defaulted on their March 1, 2012, payment. The Nickersons did not default on their March 1, 2012, payment. The Nickersons paid their March 1, 2012, payment. See Abuse of Discretion point II.

B. The Court did not present any findings of fact regarding the fact HSBC did not perform the contractual prerequisites required to give them the right to accelerate and foreclose, and thus, HSBC did not obtain the contractual right to foreclose and their complaint must be dismissed. See Abuse of Discretion point I.

C. The Court determined the Nickersons did not present evidence to the fact Wells Fargo prevented performance. However, during oral argument, HSBC admitted there were genuine issues of material fact regarding default due to Wells Fargo’s prevention of performance and Nick Nickerson provided testimony via affidavit and evidence regarding Wells Fargo’s prevention of performance. See Abuse of Discretion point II.

D. The Court claimed HSBC presented evidence that it holds the Nickerson Note. HSBC did not present any admissible evidence that it holds the Nickerson Note and HSBC did not provide any proof of its claim to hold the Nickerson Note. See Irregularities point VI and Abuse of Discretion point III.

E. The Court did not present any findings of fact regarding the genuine issue of material fact surrounding the two differing original Notes. HSBC claimed the Note presented with their complaint was a true and correct copy of the original Note whereas the Nickersons presented a copy of a Note Wells Fargo claims was a copy of the original Note which differs in point of indorsements with the copy provided by HSBC. The fact is there cannot be two original Notes. See Abuse of Discretion point III.

Due to the five points presented above the Nickersons request the Court to alter its judgment and findings of fact to coincide with the facts presented above, vacate judgment and dismiss HSBC’s complaint.

 

II. CONCLUSIONS OF LAW

A. The Court concluded HSBC is the “person entitled to enforce” the Nickerson Note. However, according to the law, HSBC has provided no proof it is the “person entitled to enforce” the Note. See Abuse of Discretion point III and Irregularities point VI.

B. The Court concluded the Nickersons could not challenge the assignments because they did not demonstrate privity. This was the wrong application. According to New York law, the assignments are void. “A void transfer is, in effect, no transfer. A void deed is, in effect no deed. Such a deed is a nullity ab initio.” Forrester & MacGuinniss v. Boston & Montana Consol. Etc., Mining Co., 29 Mont. 397, 401, 74 P.1088, 1090, 76 P. 211. “A ‘void thing’ is nothing; it has no legal effect whatsoever and no right whatever can be obtained under it or grow out of it. In law it is the same thing as if a ‘void thing’ had never existed.” Lowery v. Garfield County, 122 Mont. 571, 584, 208 P.2d 478, 485. According to the law, the assignments are void. Therefore, according to the law, the assignments never occurred, and thus, HSBC has nothing, no standing and their complaint for foreclosure must be dismissed. The Nickersons cannot be prejudiced or punished for not being a party to a void occurrence that they did not even know occurred. Illegal acts occurred. No rights can come out of an illegal act.

As demonstrated above this Court must amend its conclusions of law regarding HSBC’s standing to bring their complaint and HSBC’s complaint must be dismissed.

 

CONCLUSION

Due to the irregularity of the proceedings, the abuses of discretion, surprise and new evidence the order granting summary judgment to HSBC must be vacated; 1) HSBC claims they are not responsible for the Complaint, 2) The Nickersons were barred from any discovery, 3) The Nickersons were barred from their contractual rights to assert their claims and present their defenses, 4) The evidence submitted by HSBC did not conform to the summary judgment rules, 5) HSBC violated the rules of civil procedure, 6) There are genuine issues of material fact regarding nonpayment of the debt which HSBC admitted to during oral argument – most notably Wells Fargo prevented the Nickersons from making payments and curing any alleged default, 7) There are genuine issues of material fact regarding HSBC’s present ownership of the debt – Wells Fargo provided a copy of the original Note which differs from the copy of the original Note HSBC provided, 8) According to the Universal Commercial Code, HSBC has not proven it is the “person entitled to enforce” the Note: a) HSBC has not demonstrated possession of the Note, b) the Note is not indorsed to HSBC and, c) HSBC has not produced the original Note, 9) The Nickersons were not given adequate notice of oral argument nor was oral argument a true hearing where the Nickersons could present additional witness testimony and evidence refuting HSBC’s claims and validating their defenses, 10) HSBC admitted during oral argument that there are genuine issues of material fact, 11) The surprise that HSBC’s cross-motion for summary judgment barred all discovery and amendments of pleadings after the Nickersons answers and counterclaims had already been deemed admitted, and 12) The new evidence demonstrating genuine issues of material fact. Therefore, the Nickersons have been prevented from having a fair trial and the summary judgment order must be vacated.

In addition, this Court abused its discretion by nullifying the express terms of the alleged contract. HSBC is barred by the alleged contract from pursuing this complaint because they failed to fulfill the provisions of the contract that require the “Lender” to provide notice of default or acceleration and require very specific language to be included in the notice. Since HSBC did not provide notice and since the alleged notice did not contain the language required by the contract, HSBC, according to the alleged contract, is barred from pursuing foreclosure or any judicial action regarding the alleged contract, and thus, their complaint must be dismissed.

In closing, the Nickersons would like to remind this Court that they have done nothing wrong. The Nickersons did not stop making their payments. The Nickersons did not default. The Nickersons have not violated the terms of their Note or Mortgage. Instead, the Nickersons were prevented from making their payments by Wells Fargo and HSBC and have been forced to defend themselves against this fraudulent, wrongful and unverified (by someone with personal knowledge and legal authority) complaint. When the Nickersons approached HSBC regarding their complaint, HSBC stated they did not handle foreclosures and to contact Wells Fargo. When the Nickersons contacted Wells Fargo, Wells Fargo stated they were not foreclosing. The Nickersons filed for summary judgment because neither of the entities claimed they were responsible for this complaint, HSBC had not provided any proof they were the “person entitled to enforce” the Note (the copy of the Note they provided is indorsed to Wells Fargo), HSBC had not adhered to the terms of the alleged contract and evidence of fraud was present. In response to the Nickersons request for proof, HSBC’s alleged attorney, Erika Peterman, had the audacity to file a cross-motion for summary judgment without any admissible evidence or affidavits and provided no proof of possession or indorsement of the Note. In addition, Ms. Peterman has provided no proof of authority giving her the right to represent HSBC or pursue this complaint and, in fact, HSBC did not sign the complaint, HSBC has not submitted any affidavits and HSBC has not sworn to or certified any of the documents submitted by Ms. Peterman. Yet, both Ms. Peterman and this Court have used HSBC’s rule violating cross-motion for summary judgment to block all discovery and nullify the Nickersons contractual rights to present any defenses and claims they might have even though the Nickersons filed their amended pleadings as permitted by the Court’s orders and according to the clerks instructions. In effect, this Court has permitted Ms. Peterman to conceal evidence, thwart discovery and unlawfully prosecute an illegal complaint. HSBC, Wells Fargo, and Ms. Peterman know the assignments HSBC is using to claim ownership are invalid, unlawful and do not conform to their own agreements and requirements, and thus, the title to the Nickerson property has been corrupted and the only way for them to clear it is to force a foreclosure. However, now that the spotlight is on them none of them want to take responsibility for their actions or this wrongful foreclosure and everyone is just trying to force it through. HSBC and their accomplices are thereby unlawfully stealing the Nickersons interest in the property and maliciously perpetuating physical, emotional and monetary damages upon the Nickersons that are unjust unlawful and inhumane. This Court must acknowledge this is wrong legally, ethically and morally. The only way for the Nickersons to stop this unlawful assault on their life, way of life and family is to have a fair trial and be permitted to present their meritorious claims and defenses.

Wherefore, since the numerous irregularities of proceedings and abuses of discretion have prevented the Nickersons from having a fair trial, the Nickersons request a new trial and the order granting summary judgment to HSBC be vacated. In addition, since 1) this Court erred in its findings of facts regarding default, 2) HSBC has violated the rules, 3) HSBC has failed to fulfill the contractual requisite conditions precedent prior to initiating this judicial foreclosure, 4) by law, HSBC has not proven standing and 5) HSBC’s complaint is based upon a false default date, the Nickersons request this Court alter its judgment, amend its findings of fact and conclusions of law and dismiss HSBC’s complaint.

Oral argument requested.




Reply Brief in Support of Motion For New Trial And Motion to Alter or Amend Findings of Fact, Conclusions of Law and Judgment

Reply Brief in Support of Motion For New Trial And Motion to Alter or Amend Findings of Fact, Conclusions of Law and Judgment

COMES NOW, Defendants, Nick and Donna Nickerson, submit this reply in support of their Rule 59 motions.
According to Lee v. USAA Cas. Ins. Co. (the same case HSBC is attempting to use to deny the Nickersons’ motion), the Nickersons Rule 59 motion is appropriate. The Nickersons have clearly stated and requested the Court to alter or amend its judgment and the Montana Supreme Court has ruled that a motion to alter or amend a summary judgment is an appropriate and accepted method to request a reversal of summary judgment.

“this Court has deemed Rule 59(g) an appropriate procedure under certain circumstances for seeking complete reversal of summary judgment…Recently, this Court set forth certain criteria for determining what grounds or issues a part may or may not raise pursuant to a Rule 59(g) motion to alter or amend. In Nelson v. Driscoll (1997), 285 Mont. 385, 948 P.2d 256, we identified four potential grounds: (1) to correct manifest errors of law or fact upon which the judgment was based; (2) to raise newly discovered or previously unavailable evidence; (3) to prevent manifest injustice resulting from, among other things, serious misconduct of counsel; or (4) to bring to the court’s attention an intervening change in controlling law.” Lee v. USAA Cas. Ins. Co., 2001 MT 59, 22 P.3d 631 (2001) at 73 and 75. Note: Rule 59(g) is now Rule 59 (e).

With their motion, the Nickersons have 1) attempted to correct the manifest errors of law and fact which the Court had disregarded, 2) demonstrated evidence that could have been presented and discovered had HSBC not surprisingly and prematurely filed for summary judgment, and 3) attempted to prevent manifest injustice. Therefore, the Nickersons Rule 59 motion is appropriate and must be considered by this Court.

I. MANIFEST ERRORS OF LAW AND FACT

A. The Court made and error of law by violating the summary judgment rules. Rule 56(e) is very clear regarding the requirements for summary judgment and HSBC did not fulfill any of them. See Brief p. 6 point VI. HSBC has not sworn to nor authenticated any of HSBC’s claims and as evidenced by their response to the Nickersons’ Motion for Proof of Authority, HSBC is not even willing to provide proof that Ms. Peterman of RCO Legal is legally representing them in this matter. Therefore, it was and is an error of law to grant summary judgment to HSBC.

B. The Court made an error of law by claiming HSBC is “the person entitled to enforce” the Note. Presenting an unverified and unauthenticated copy of the note and mortgage and an assignment of the note and mortgage is not proof that one is the “holder” and entitled to enforce it in a judicial foreclosure. See Brief p. 12 point III. This is especially true when the Nickersons have presented evidence that the note and mortgage are fraudulent, the note is not indorsed to HSBC, and Wells Fargo has presented a differing copy of the original note. According to the U.C.C. and Montana law, to be deemed the “holder” HSBC must be in possession of the note and the note must be indorsed to HSBC. HSBC has not presented any claims or evidence that it is in possession of the Note and the copy of the Note their alleged counsel provided is specially indorsed to Wells Fargo (unlike the copy of the Note Wells Fargo provided which has no endorsements or signatures other than the Nickersons), and thus, HSBC, according to Montana law, is not the holder of the Note and can not enforce it. Further, according to Montana case law (Culbertson St. Bank . Dahl, (1980)), HSBC should and must be required to produce the instrument in order to enforce it. Therefore, since HSBC is not the “holder” of the Note, they are neither in possession of the Note nor is the Note indorsed to them, HSBC is not the “person entitled to enforce” the Note, and thus, this Court has made an error of law and summary judgment must be reversed.

C. The Court made an error of law by denying the Nickersons their contractual and procedural rights to present their claims and defenses. See Brief p. 9 point I and p. 14 point IV. According to the alleged Mortgage contract, if the Lender attempts to foreclose, the Nickersons have the right to present their claims and defenses which this Court has arbitrarily denied. Also, regarding amended pleadings, according to Rule 15(a)(2), “The Court should freely give leave when justice so requires” and according to the Montana Supreme Court:
“We conclude that the interests of justice and judicial efficiency favor the amendment of Ranch Recovery’s pleadings so that all claims arising from the same transaction may be resolved in the same action. This policy, which underlies the rules of civil procedure, outweighs any prejudice to the Bank. Therefore, we conclude that the District Court abused its discretion when it failed to allow Ranch Recovery to amend its counterclaim.” First Sec. Bank v. Ranch Recovery Ltd., 1999 Mont. 43, 976 P.2d 956 (1999)

Therefore, the Court made an error of law by denying the Nickersons amended pleadings, and thus, the summary judgment order must be vacated.

D. The Court made an error of fact and an error of law regarding default. The Nickersons did not default on their March 1, 2012, payment and the current default is a result of the prevention of performance actions and inactions of Wells Fargo. See Brief pp. 11-12. Denying the Nickersons their opportunity to demonstrate and claim prevention of performance creates a grotesque manifestation of injustice of fraud by HSBC and Wells Fargo. This is particularly true in this case because, during oral argument, HSBC admitted there were genuine issues of material fact regarding default due to the prevention of performance by Wells Fargo. Since HSBC, as the party seeking summary judgment, admitted to a genuine issue of material fact, the they are admitting their summary judgment motion no longer has merit, and thus, there can be no summary judgment in their favor. This court has erred in stating there is no genuine issue of material fact regarding default. HSBC has already admitted there is and this Court must acknowledge HSBC’s admission. Therefore, since HSBC has admitted there is a genuine issue of material fact regarding default, this Court cannot grant summary judgment to HSBC and the summary judgment order must be vacated. Further, the Court’s own summary judgment standard requires the Court “draw all reasonable inferences” against HSBC’s summary judgment motion. Since HSBC admitted during oral argument that its motion no longer had merit because the Nickersons demonstrated genuine issues of material fact regarding default, according to the law, this court had no option but to deny HSBC’s motion. Therefore, due to this court’s error of fact and law regarding default, the summary judgment order must be vacated. The above errors of law and fact clearly demonstrate HSBC is not entitled to foreclose.. According to the laws and Rules, HSBC has not proven present ownership of the debt, and further, HSBC has admitted there are genuine issues of material fact regarding default. Therefore, HSBC has not demonstrated it is entitled to summary judgment and the summary judgment order must be vacated

II. NEW AND UNAVAILABLE EVIDENCE

HSBC, in their response, has argued the Nickersons had plenty of time to complete discovery, 8 months, prior to when the Nickersons filed for summary judgment claiming the facts were undisputed and “there is absolutely no evidence that Nickersons were prevented from conducting discovery.” See Response p. 4 and p. 7. However, as the record clearly demonstrates, upon being unlawfully served with the complaint the Nickersons contacted HSBC in an attempt to discover HSBC’s involvement and HSBC unreservedly denied any involvement with this litigation putting all responsibility on Wells Fargo which is one of the undisputed facts the Nickersons based their summary judgment motion upon. Wells Fargo also denied involvement to the Nickersons and numerous agencies working on behalf of the Nickersons which prevented the Nickersons from discovery and securing any relief and justice. The other facts the Nickersons summary judgment motion was based upon is 1) the assignments are fraudulent, 2) the note is indorsed to Wells Fargo, and thus, HSBC cannot be deemed to be the holder of the note, 3) fraud and 4) breach of contract. Based upon all of those undisputed facts, which are still undisputed by HSBC, the Nickersons filed for summary judgment regarding HSBC’s standing. In response, HSBC filed a cross-motion for summary judgment alleging they were the note holder, but providing no verified or authenticated proof or evidence, and HSBC claimed the Nickersons were in default, and providing no proof, and claimed the Nickersons could not present evidence of fraud or breach of contract because they were not pled, but provided no evidence or argument to refute those claims. This legal trickery thereby halted any discovery and resulted in the Court denying the Nickersons their contractual, procedural and court permitted rights to amend their answers, defenses and claims to plead, among other things, fraud and breach of contract. In addition, discovery was thwarted by HSBC because they did not provide an exhibit list or a witness list according to the Court’s scheduling order but claimed they did not have to because of their summary judgment motion. Also, the Nickersons requested oral argument on their motions but they were never allowed to present any witness testimony or allowed to question any HSBC witnesses at all regarding this case. Therefore, there is no doubt or question that HSBC used their cross-motion for summary judgment to thwart the discovery process and prevent the Nickersons from obtaining, pursuing and presenting the evidence detailed in their brief. Nevertheless, even though HSBC has barred discovery, due to the limited evidence the Nickersons were able to provide during oral argument, HSBC admitted there are genuine issues of material fact regarding default, and thus, the summary judgment order must be vacated.

III. MANIFEST INJUSTICE

It is unmistakably a manifest injustice for the Court to 1) violate the summary judgment Rule in order to grant summary judgment (Brief p. 6 point VI.), 2) nullify the contractual requirements of the contract it is attempting  to enforce (Brief p. 9 point I.) 3) disregard the laws regarding who is the “person entitled to enforce” the note (Brief p. 12 point III.) 4) deny the Nickersons their procedural and contractual rights to present their claims and defenses (Brief p. 4 point IV and p. 14 point IV.), and 5) overrule HSBC’s admission of genuine issues of material fact regarding default (Brief p. 10 point II.) Therefore, in order to correct these manifest injustices perpetrated against the Nickersons in this case, this Court must, at a minimum, vacate the summary judgment order.

IV. EXTRAORDINARY CIRCUMSTANCES

In addition to the four acceptable reasons stated above for pursuing an motion to alter or amend, the Lee Court, in quoting Nelson, summed up the purpose for a motion to alter or amend by stating  it is “to afford an opportunity for relief in extraordinary circumstances.” The Nickersons contend they have thoroughly detailed the extraordinary circumstances of this case throughout their brief. For example; 1) the rules have been violated – Rules 5.2a, 7.1, and 56, 2) the law and case law has been disregarded, 3) discovery was thwarted by HSBC, and 4) summary judgment was granted to HSBC even though they admitted there were genuine issues of material fact regarding default. In addition, the suddenness of the ending of oral argument created an extraordinary circumstance. The Nickersons had informed the Court of the lack of notice for oral argument and asked if oral argument should be rescheduled. The Court instructed the Nickersons to attend oral argument with the stipulation that if the Nickersons felt anything else needed to be submitted, the Court would provide instructions on how and when to submit it. However, oral argument ended so suddenly, due to opposing counsel’s behavior, that the Nickersons were left hanging regarding what to do next, how and when to submit any additional evidence, and were left questioning if the court was reconsidering the Nickersons amended pleadings. See Brief p. 2 point I and p. 4 point V. In fact, the Nickersons began questioning the Court’s clerk regarding their issues, however, it was clear they were not going to obtain the answers they needed through that avenue. Therefore, the abrupt ending of oral argument, as a result of the conduct of opposing counsel, created an extraordinary circumstance that cut off the Nickersons communication with the Court leaving the Nickersons with unanswered question and unfairly prejudicing their opportunity to fully present their case.

Further, it is unquestionably an extraordinary circumstance for HSBC to claim no involvement or responsibility for their complaint, refuse to validate or authenticate any of their evidence and to even refuse to provide proof their alleged counsel is acting on their behalf. In fact, the only evidence provided and authenticated by HSBC are the two letters in which they claim they have no involvement with the complaint and that it is Wells Fargo’s responsibility to foreclose. See Affidavit of Nick Nickerson in Support of Motion for Summary Judgment, Ex. A and B. However, Wells Fargo has also repeatedly denied involvement in this foreclosure, and has admitted they prevented performance,  has admitted they could not and would not provide relief to the Nickersons solely because of the fraudulent transactions that occurred between themselves and HSBC without the Nickersons knowledge, has admitted the Nickersons did not default on their March 1, 2012, payment, and has admitted the Nickersons made heroic attempts to fix the default caused solely by the actions of Wells Fargo and HSBC. How extraordinary – both entities allegedly involved with the Nickersons Note and Mortgage have denied any involvement with this action!

In addition, to add to the extraordinary circumstances of this case one must realize the assignment HSBC is relying upon to claim ownership of the Nickersons’ loan documents was created and executed by Northwest Trustee. A firm that is owned by one of the controlling partners of RCO Legal. The same RCO Legal who is allegedly representing HSBC and which HSBC has refused to provide proof is representing them.  There is a conflict of interest or something illegal and unethical occurring in this case. Northwest Trustee, using a power of attorney from Wells Fargo, created and executed an assignment, then, RCO claims to represent the assignee, forces a foreclosure and steals the Nickersons home and all their equity while assignee, HSBC, has no idea of what has occurred and Wells Fargo and RCO walk away with a windfall. Based on the evidence, or lack thereof, that has been presented, this is exactly what is occurring in this extraordinary case and must be one of the underlying reasons Ms. Peterman has thwarted discovery and quashed the Nickersons answers and counterclaims.  Therefore, because of the numerous extraordinary circumstances surrounding this case the Nickersons motion is not only proper it should be granted, summary judgment vacated and HSBC’s complaint dismissed.

CONCLUSION

In closing, HSBC is claiming “the Nickersons are attempting to re-litigate old matters, present arguments which this Court has already rejected, raise arguments that could have been raised, and take a second bite at the apple.” In contrast, however, what the Nickersons have done is in accordance with the case HSBC has chosen to cite. The Nickersons have 1) demonstrated the Court’s manifest errors of law and fact, 2) demonstrated the evidence that could have been presented had this case not had such extraordinarily circumstances as HSBC thwarting discovery, HSBC refusing to validate or authenticate any of their evidence and HSBBC denying any involvement with their complaint even to the extent that it refused to provide proof their alleged counsel is representing them, 3) the blatant violations of the rules by this Court due to the fraudulent actions of HSBC and HSBC’s counsel, 4) the extraordinary circumstance of both entities allegedly involved with the Nickersons’ Note denying involvement in this court action, 5) the extraordinary circumstances of an entity taking the Nickersons’ Ranch and life savings when the Nickersons did not default and have made every attempt and effort to honor their obligations regarding their Ranch, and 6) the fact HSBC admitted there are genuine issues of material fact regarding default which, in effect summarily denies their motion for summary judgment. Therefore, because of the reasons detailed throughout this reply and the Nickersons brief and because of the extraordinary circumstances relief should be granted to the Nickersons, the summary judgment order vacated and HSBC’s complaint dismissed.  




Reply In Support of Motion to Provide Proof of Authority

Reply In Support of Motion to Provide Proof of Authority

COMES NOW, Defendants, Nick and Donna Nickerson, submit this reply in support of their Motion to Provide Proof of Authority.

In accordance with MCA § 37-61-402, the Nickersons have requested this Court require HSBC’s attorney, Erika Peterman, to produce and prove the authority under which she appears. Ms. Peterman, in her response to the Nickersons’ motion, claims this Court has granted her the authority to represent HSBC. Is this Court a representative of HSBC with the authority to act on HSBC’s behalf as Ms. Peterman infers? Contrary to Ms. Peterman’s inference, the Nickersons do not believe this Court is a representative of HSBC nor that it has or wants the authority to act on HSBC’s behalf. This Court, however, does have the authority to require Ms. Peterman to produce proof of authority and has the legal, ethical and moral right and obligation to the Nickersons to do so. The only evidence provided in this case from a representative of HSBC states that foreclosure is the responsibility of Wells Fargo. The Nickersons have been severely prejudiced because of HSBC’s denial of involvement. Therefore, since Ms. Peterman has refused to provide proof of authority, it can only be surmised that she does not have the authority and that HSBC has refused to provide the proof requested, and thus, since proof of authority has not been provided and Ms. Peterman appears to have no intention or ability to do so, according to the law, MCA § 37-61-402, the Court should vacate the summary judgment order and dismiss HSBC’s complaint.

Wherefore, the Nickersons request the Court order HSBC’s counsel to provide the required Proof of Authority including proof of the original date such authority was granted or summarily vacate summary judgment and dismiss HSBC’s complaint.

On May 26, 2015, we filed our Notice of Appeal which began the appellate process. We continued to research laws, cases, and civil procedures to help save our ranch.

In January 2016, due to our discovery research, we again approached the Montana Secretary of State’s office to determine if the trust HSBC claimed to be a trustee of was registered to do business in Montana. If a Trust is not registered in Montana, it cannot own property in Montana.

MCA § 35-5-201.  Creating instrument -- filing -- consent of foreign business trust to laws and service of process.
(1) Any business trust desiring to transact business in this state shall file with the secretary of state:
             (a)  an executed copy of its articles, declarations of trust, or trust agreement by which the trust was created and all amendments thereto or a true copy thereof certified to be such by a trustee of the trust before an official authorized to administer oaths or by a public official of another state, territory, or country in whose office an executed copy thereof is on file. The true copy shall be verified within 60 days before it is filed with the secretary of state.
             (b)  a verified list of the names, residences, and post-office addresses of its trustees;
             (c)  an affidavit setting forth its assumed business name, if any.
(2)  A foreign business trust shall file a verified application in the office of the secretary of state as provided in the case of foreign corporations under 35-1-1028 and shall file a copy of its articles, declaration of trust, or trust agreement by which it was created, certified by the secretary of state, in the office of the county clerk of the county where its principal office or place of business in this state will be located. The foreign business trust shall also file, at the same time and in the same office, a certificate certifying that it has consented to all the license laws and other laws of the state of Montana relative to foreign corporations and has consented to be sued in the courts of this state, upon all causes of action arising against it in this state and that service of process may be made upon some person, a citizen of this state whose principal place of business is designated in such certificate. Service of process, when made upon such agent, is valid service on the business trust.

The Secretary of State informed us the trust was not registered. We contacted the Office of the Montana State Auditor, Commissioner of Securities and Insurance (CSI), where we eventually met with Jesse Laslovich, Lynn Eagen, and several members of his staff. We told them our story and they agreed to see if there was any way their office could help. At Jesse’s request, we returned to his office and provided him with a copy of the entire record. After reviewing the record and doing some research, Mr. Laslovich told us Wells Fargo was the one foreclosing and he would contact Wells Fargo. After conversing with Wells Fargo, Mr. Laslovich told us Wells Fargo could and should make this right and a Ron Long of Wells Fargo would be in contact with us. Ron Long never contacted us. Wells Fargo has never made anything right.

...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.                     
                                         Nickerson Reply Brief in Support of Motion for Extension of Time, pg. 3-4

 
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The Supreme Court remanded our case.


On May 3, 2016, the Montana Supreme Court issued its remand order granting us 120 days to conduct discovery regarding Wells Fargo’s prevention of performance and provide argument as to why it was wrong for Wells Fargo to reject our payments. The Supreme Court severely restricted our ability to conduct discovery as they placed limitations on our discovery to only deal with prevention of performance. Nonetheless, we obeyed their order and immediately intensified and redirected our efforts to obtain discovery limited to prevention of performance.

We started putting together our arguments to comply with this remand. This included extensive research and review of cases, laws and articles. From May 27 to June 29 alone, we collected over 40 relevant cases with approximately 23 articles between June and July and 13 more in the September to October timeframe to use in supporting our arguments for the remand. This in no way represents all research conducted or completed. It takes a great deal of time to review cases, verify the applicability and relevance to the issue being argued, make sure they have not been reversed or expanded, and research the laws and rules cited to determine how to integrate them into your pleadings. This is especially true when your pro se status does not grant you access to memberships to many of the legal search engines and your rural internet access is limited.

All research confirmed HSBC is illegally foreclosing on our home without cause or right and confirmed HSBC, Wells Fargo, and their accomplices are unlawfully seizing our property. All laws needed to save our home are in place. No law (common, codified, federal, state) and no part of any alleged agreement grants right to action for HSBC to foreclose on our home. This is irrefutably fraud and theft. These criminal acts are being permitted through acute regulatory failure and judicial tyranny.

 
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Wells Fargo would not allow us access to our records or their employees.


Despite repeated requests, Wells Fargo failed to provide us access to our records so we could secure employee testimonies, notations and taped conversations that supported our prevention of performance claims.

Two parties participated in our dealings with Wells Fargo, our family and Wells Fargo. If Wells Fargo would not allow us access to our records, account notations and witnesses, our testimonies and the testimonies of our witnesses were the only evidence we could produce of the events and interactions with Wells Fargo.

We submitted affidavits to provide proof these events took place and support our need for Wells Fargo to be compelled to produce account records they are mandated to keep and produce upon request per the Federal Real Estate Settlement Procedures Act – Regulation X – 12 C.F.R.§§ 1024.36 and 1024.38.

§1024.36—Requests for Information
36(a) Information request.  

1. Borrower's representative. An information request is submitted by a borrower if the information request is submitted by an agent of the borrower. A servicer may undertake reasonable procedures to determine if a person that claims to be an agent of a borrower has authority from the borrower to act on the borrower's behalf, for example, by requiring that a person that claims to be an agent of the borrower provide documentation from the borrower stating that the purported agent is acting on the borrower's behalf. Upon receipt of such documentation, the servicer shall treat the request for information as having been submitted by the borrower.  

2. Owner or assignee of a mortgage loan. A servicer complies with §1024.36(d) by responding to an information request for the owner or assignee of a mortgage loan by identifying the person on whose behalf the servicer receives payments from the borrower. Although investors or guarantors, including among others the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, or the Government National Mortgage Association, may be exposed to risks related to the mortgage loans held by a trust either in connection with an investment in securities issued by the trust or the issuance of a guaranty agreement to the trust, such investors or guarantors are not the owners or assignees of the mortgage loans solely as a result of their roles as such. In certain circumstances, however, a party such as a guarantor may assume multiple roles for a securitization transaction. For example, the Federal National Mortgage Association may act as trustee, master servicer, and guarantor in connection with a securitization transaction in which a trust owns a mortgage loan subject to a request. In this example, because the Federal National Mortgage Association is the trustee of the trust that owns the mortgage loan, a servicer complies with §1024.36(d) by responding to a borrower's request for information regarding the owner or assignee of the mortgage loan by providing the name of the trust, and the name, address, and appropriate contact information for the Federal National Mortgage Association as the trustee. The following examples identify the owner or assignee for different forms of mortgage loan ownership:  

i. A servicer services a mortgage loan that is owned by the servicer, or an affiliate of the servicer, in portfolio. The servicer therefore receives the borrower's payments on behalf of itself or its affiliate. A servicer complies with §1024.36(d) by responding to a borrower's request for information regarding the owner or assignee of the mortgage loan with the name, address, and appropriate contact information for the servicer or the affiliate, as applicable.  

 ii. A servicer services a mortgage loan that has been securitized. In general, in a securitization transaction, a special purpose vehicle, such as a trust, is the owner or assignee of a mortgage loan. Thus, the servicer receives the borrower's payments on behalf of the trust. If a securitization transaction is structured such that a trust is the owner or assignee of a mortgage loan and the trust is administered by an appointed trustee, a servicer complies with §1024.36(d) by responding to a borrower's request for information regarding the owner or assignee of the mortgage loan by providing the borrower with the name of the trust and the name, address, and appropriate contract information for the trustee. Assume, for example, a mortgage loan is owned by Mortgage Loan Trust, Series ABC-1, for which XYZ Trust Company is the trustee. The servicer complies with §1024.36(d) by responding to a borrower's request for information regarding the owner or assignee of the mortgage loan by identifying the owner as Mortgage Loan Trust, Series ABC-1, and providing the name, address, and appropriate contact information for XYZ Trust Company as the trustee.  

36(b) Contact information for borrowers to request information.  

1. Exclusive address not required. A servicer is not required to designate a specific address that a borrower must use to request information. If a servicer does not designate a specific address that a borrower must use to request information, a servicer must respond to an information request received by any office of the servicer.  

2. Notice of an exclusive address. A notice establishing an address that a borrower must use to request information may be included with a different disclosure, such as a notice of transfer. The notice is subject to the clear and conspicuous requirement in §1024.32(a)(1). If a servicer establishes an address that a borrower must use to request information, a servicer must provide that address to the borrower in the following contexts:  

 
i. The written notice designating the specific address, required pursuant to §1024.35(c) and §1024.36(b).  

ii. Any periodic statement or coupon book required pursuant to 12 CFR 1026.41.  

iii. Any Web site the servicer maintains in connection with the servicing of the loan.  

iv. Any notice required pursuant to §§1024.39 or .41 that includes contact information for assistance.  

3. Multiple offices. A servicer may designate multiple office addresses for receiving information requests. However, a servicer is required to comply with the requirements of §1024.36 with respect to an information request received at any such address regardless of whether that specific address was provided to a specific borrower requesting information. For example, a servicer may designate an address to receive information requests for borrowers located in California and a separate address to receive information requests for borrowers located in Texas. If a borrower located in California requests information through the address used by the servicer for borrowers located in Texas, the servicer is still considered to have received an information request and must comply with the requirements of §1024.36.  

4. Internet intake of information requests. A servicer may, but need not, establish a process for receiving information requests through email, Web site form, or other online intake methods. Any such online intake process shall be in addition to, and not in lieu of, any process for receiving information requests by mail. The process or processes established by the servicer for receiving information requests through an online intake method shall be the exclusive online intake process or processes for receiving information requests. A servicer is not required to provide a separate notice to a borrower to establish a specific online intake process as an exclusive online process for receiving information requests.  

36(d) Response to information request.   36(d)(1) Investigation and response requirements.   Paragraph 36(d)(1)(ii).  

1. Information not available. Information is not available if:  

i. The information is not in the servicer's control or possession, or  

ii. The information cannot be retrieved in the ordinary course of business through reasonable efforts.  

2. Examples. The following examples illustrate when information is available (or not available) to a servicer under §1024.36(d)(1)(ii):  

 
i. A borrower requests a copy of a telephonic communication with a servicer. The servicer's personnel have access in the ordinary course of business to audio recording files with organized recordings or transcripts of borrower telephone calls and can identify the communication referred to by the borrower through reasonable business efforts. The information requested by the borrower is available to the servicer.  

ii. A borrower requests information stored on electronic back-up media. Information on electronic back-up media is not accessible by the servicer's personnel in the ordinary course of business without undertaking extraordinary efforts to identify and restore the information from the electronic back-up media. The information requested by the borrower is not available to the servicer.  

iii. A borrower requests information stored at an offsite document storage facility. A servicer has a right to access documents at the offsite document storage facility and servicer personnel can access those documents through reasonable efforts in the ordinary course of business. The information requested by the borrower is available to the servicer assuming that the information can be found within the offsite documents with reasonable efforts.
36(f) Requirements not applicable.

36(f)(1) In general.  

Paragraph 36(f)(1)(i).  

1. A borrower's request for a type of information that can change over time is not substantially the same as a previous information request for the same type of information if the subsequent request covers a different time period than the prior request.  

Paragraph 36(f)(1)(ii).  

1. Confidential, proprietary or privileged information. A request for confidential, proprietary or privileged information of a servicer is not an information request for which the servicer is required to comply with the requirements of §1024.36(c) and (d). Confidential, proprietary or privileged information may include information requests relating to, for example:  

i. Information regarding management or profitability of a servicer, including information provided to investors in the servicer.  

ii. Compensation, bonuses, or personnel actions relating to servicer personnel, including personnel responsible for servicing a borrower's mortgage loan account;  

iii. Records of examination reports, compliance audits, borrower complaints, and internal investigations or external investigations; or  

iv. Information protected by the attorney-client privilege.  

Paragraph 36(f)(1)(iii).  

1. Examples of irrelevant information. The following are examples of irrelevant information:  

i. Information that relates to the servicing of mortgage loans other than a borrower's mortgage loan, including information reported to the owner of a mortgage loan regarding individual or aggregate collections for mortgage loans owned by that entity;  

ii. The servicer's training program for servicing personnel;  

iii. The servicer's servicing program guide; or  

iv. Investor instructions or requirements for servicers regarding criteria for negotiating or approving any program with a borrower, including any loss mitigation option.  

Paragraph 36(f)(1)(iv).  

1. Examples of overbroad or unduly burdensome requests for information. The following are examples of requests for information that are overbroad or unduly burdensome:  

 
i. Requests for information that seek documents relating to substantially all aspects of mortgage origination, mortgage servicing, mortgage sale or securitization, and foreclosure, including, for example, requests for all mortgage loan file documents, recorded mortgage instruments, servicing information and documents, and sale or securitization information and documents;  

ii. Requests for information that are not reasonably understandable or are included with voluminous tangential discussion or assertions of errors;  

iii. Requests for information that purport to require servicers to provide information in specific formats, such as in a transcript, letter form in a columnar format, or spreadsheet, when such information is not ordinarily stored in such format; and  

iv. Requests for information that are not reasonably likely to assist a borrower with the borrower's account, including, for example, a request for copies of the front and back of all physical payment instruments (such as checks, drafts, or wire transfer confirmations) that show payments made by the borrower to the servicer and payments made by a servicer to an owner or assignee of a mortgage loan.



§1024.38   General servicing policies, procedures, and requirements.

(a) Reasonable policies and procedures. A servicer shall maintain policies and procedures that are reasonably designed to achieve the objectives set forth in paragraph (b) of this section.  

(b) Objectives.

(1) Accessing and providing timely and accurate information. The policies and procedures required by paragraph (a) of this section shall be reasonably designed to ensure that the servicer can:  

(i) Provide accurate and timely disclosures to a borrower as required by this subpart or other applicable law;  

(ii) Investigate, respond to, and, as appropriate, make corrections in response to complaints asserted by a borrower;  

(iii) Provide a borrower with accurate and timely information and documents in response to the borrower's requests for information with respect to the borrower's mortgage loan;  

(iv) Provide owners or assignees of mortgage loans with accurate and current information and documents about all mortgage loans they own;  

(v) Submit documents or filings required for a foreclosure process, including documents or filings required by a court of competent jurisdiction, that reflect accurate and current information and that comply with applicable law; and  

(vi) Upon notification of the death of a borrower, promptly identify and facilitate communication with the successor in interest of the deceased borrower with respect to the property secured by the deceased borrower's mortgage loan.  

(2) Properly evaluating loss mitigation applications. The policies and procedures required by paragraph (a) of this section shall be reasonably designed to ensure that the servicer can:  

(i) Provide accurate information regarding loss mitigation options available to a borrower from the owner or assignee of the borrower's mortgage loan;  

(ii) Identify with specificity all loss mitigation options for which borrowers may be eligible pursuant to any requirements established by an owner or assignee of the borrower's mortgage loan;  

(iii) Provide prompt access to all documents and information submitted by a borrower in connection with a loss mitigation option to servicer personnel that are assigned to assist the borrower pursuant to §1024.40;  

(iv) Identify documents and information that a borrower is required to submit to complete a loss mitigation application and facilitate compliance with the notice required pursuant to §1024.41(b)(2)(i)(B); and  

(v) Properly evaluate a borrower who submits an application for a loss mitigation option for all loss mitigation options for which the borrower may be eligible pursuant to any requirements established by the owner or assignee of the borrower's mortgage loan and, where applicable, in accordance with the requirements of §1024.41.  

(3) Facilitating oversight of, and compliance by, service providers. The policies and procedures required by paragraph (a) of this section shall be reasonably designed to ensure that the servicer can:  .

(i) Provide appropriate servicer personnel with access to accurate and current documents and information reflecting actions performed by service providers;  

(ii) Facilitate periodic reviews of service providers, including by providing appropriate servicer personnel with documents and information necessary to audit compliance by service providers with the servicer's contractual obligations and applicable law; and  

(iii) Facilitate the sharing of accurate and current information regarding the status of any evaluation of a borrower's loss mitigation application and the status of any foreclosure proceeding among appropriate servicer personnel, including any personnel assigned to a borrower's mortgage loan account as described in §1024.40, and appropriate service provider personnel, including service provider personnel responsible for handling foreclosure proceedings.  

(4) Facilitating transfer of information during servicing transfers. The policies and procedures required by paragraph (a) of this section shall be reasonably designed to ensure that the servicer can:  

(i) As a transferor servicer, timely transfer all information and documents in the possession or control of the servicer relating to a transferred mortgage loan to a transferee servicer in a form and manner that ensures the accuracy of the information and documents transferred and that enables a transferee servicer to comply with the terms of the transferee servicer's obligations to the owner or assignee of the mortgage loan and applicable law; and  

(ii) As a transferee servicer, identify necessary documents or information that may not have been transferred by a transferor servicer and obtain such documents from the transferor servicer.  

(iii) For the purposes of this paragraph (b)(4), transferee servicer means a servicer, including a master servicer or a subservicer, that performs or will perform servicing of a mortgage loan and transferor servicer means a servicer, including a master servicer or a subservicer, that transfers or will transfer the servicing of a mortgage loan.  

(5) Informing borrowers of the written error resolution and information request procedures. The policies and procedures required by paragraph (a) of this section shall be reasonably designed to ensure that the servicer informs borrowers of the procedures for submitting written notices of error set forth in §1024.35 and written information requests set forth in §1024.36.  

(c) Standard requirements.

(1) Record retention. A servicer shall retain records that document actions taken with respect to a borrower's mortgage loan account until one year after the date a mortgage loan is discharged or servicing of a mortgage loan is transferred by the servicer to a transferee servicer.  

(2) Servicing file. A servicer shall maintain the following documents and data on each mortgage loan account serviced by the servicer in a manner that facilitates compiling such documents and data into a servicing file within five days:  

(i) A schedule of all transactions credited or debited to the mortgage loan account, including any escrow account as defined in §1024.17(b) and any suspense account;  

(ii) A copy of the security instrument that establishes the lien securing the mortgage loan;  

(iii) Any notes created by servicer personnel reflecting communications with the borrower about the mortgage loan account;  

(iv) To the extent applicable, a report of the data fields relating to the borrower's mortgage loan account created by the servicer's electronic systems in connection with servicing practices; and  

(v) Copies of any information or documents provided by the borrower to the servicer in accordance with the procedures set forth in §1024.35 or §1024.41.

We tried to overcome obstacles created by our lack of access to our account records and the ongoing failure of Wells Fargo to have provided the records as requested. However, the limitations placed on discovery with the remand order dismissed our ability to seek any formal discovery from HSBC. HSBC’s involvement with prevention of performance is completely integrated with their fraudulent claims of ownership, issues surrounding our loan allegedly being entered into the Trust, and the fact they never notified us of their involvement with our loan or tried to work with us to make our payments as required by the Trust. Their denial of involvement with this foreclosure and directive to seek all discovery from Wells Fargo directly regarding the servicing of the account closed all doors to seek the needed account records from them or to approach their alleged counsel. We reached out to other entities and explored secondary ways to prove prevention of performance while continuing to try to secure direct evidence from Wells Fargo. From May 3, 2016, through August 2016 we also worked with Jesse Laslovich’s office to force Wells Fargo to respond. Despite many follow up attempts informing Jessie's office we had not heard from Ron Long, Wells Fargo failed to contact us. We continued to stress the critical timeline we were under.

We made in person pleas out of state for two of our witnesses to defy Wells Fargo’s refusal to allow them to provide us with affidavits regarding their firsthand knowledge of Wells Fargo’s prevention of performance, Teresa Koepke, Jody Lauzon and Wes Gossage approached Wells Fargo’s executive office requesting permission to testify on our behalf. Wells Fargo refused to allow their employees to provide written testimony. This direct refusal finally provided us with the right to obtain the evidence as expeditiously as possible via subpoena.

On October 21, 2016, we filed a Motion for Extension because we had not received any direction from the District Court, and Wells Fargo had not yet provided our requests for production. We also filed a subpoena because all other avenues to gain the proof of prevention of performance had been exhausted, and Wells Fargo had refused to cooperate with our reasonable requests for production. We showed good cause.

Motion For Extension of Time to Complete Discovery

Motion For Extension of Time to Complete Discovery

COMES NOW, Nick and Donna Nickerson, respectfully request an extension of time to November 30, 2016, or whatever later time this Court deems appropriate, in which to present our evidence and argument to the District Court in compliance with the remand order issued by the Montana Supreme Court. This request is necessary because HSBC, by and through their alleged Servicer Wells Fargo, has blocked our access to discovery that demonstrates Wells Fargo’s intentional prevention of performance, corroborates our comprehensive prevention of performance claims, and further demonstrates the banks wrongfully violated their agreements and Montana law. This request allows us to pursue and compel other corroborating evidence to defend our rights against this unlawful and unjust seizure of our property and equity.

We apologize if we are inappropriately approaching the Court with this request, but we are unsure whether the Supreme Court intended for us to approach you or for us to wait until you approached us regarding this extension. Since we have not heard from the Court regarding this matter, and would like to continue discovery so we can secure justice regarding our property, we decided to go ahead and approach you with our request directly.

This motion is supported by a brief submitted in conjunction with this motion.




Brief in Support of Motion For Extension of Time to Complete Discovery

Brief in Support of Motion For Extension of Time to Complete Discovery

COMES NOW, Defendants, Nick and Donna Nickerson, in accordance with Chief Justice Mike McGrath’s order filed on October 5, 2016, respectfully request additional time to continue discovery and file evidence demonstrating prevention of performance and supporting argument that demonstrates why it was unlawful and wrong to prevent our performance. Our reasons for needing more time and a brief synopsis of some of the diligent steps we have taken to complete discovery thus far are detailed in our Second Motion for Extension of Time and Supporting Affidavit filed with the Montana Supreme Court, and were served on this Court on September 30, 2016. Additional explanation, a brief history of our discovery attempts, and the current status of discovery have been incorporated herein for your convenience. Our need to request this second extension exists because Wells Fargo, acting on behalf of HSBC, has refused to allow employees, with firsthand knowledge of our attempts to make payments, to provide affidavit testimony. This testimony is critical to our claims and defenses; corroborates our statements and claims that Wells Fargo, allegedly acting on behalf of HSBC, rejected our payments and prevented our performance; meets the evidence requested in the remand; and requires vacating summary judgment in favor of HSBC. Therefore, Wells Fargo’s actions are forcing us to establish proof of prevention of performance through a more comprehensive discovery process. The additional evidence can demonstrate 1) Wells Fargo, allegedly acting as HSBC’s servicer, maliciously rejected our payments without cause or right, 2) HSBC and Wells Fargo intentionally broke the law, and 3) Wells Fargo wrongfully and knowingly violated their settlement agreement with the Montana Attorney General, which required them to “end their sloppy and fraudulent business practices.” Center For Responsible Lending’s Summary Of National Mortgage Settlement, Section I. (https://dojmt.gov/wp.content/uploads/Summary-of-AG-Settlement-3-12-12.pdf )

Opposing counsel, Erika Peterman, filed a written objection to our request for an extension claiming we have had ample time to secure testimony to support our claims but have failed to do so. She further claimed we made no attempts at formal discovery at the District Court level nor any attempts at discovery since the remand. The true history of this case demonstrates this is false and misleading; and justice recognizes time does not equate to opportunity when opportunity is blocked. Since it is unjust and unethical to allow a judgment to stand that is not based on the truths of this matter, justice demands additional discovery be conducted and that Ms. Peterman, her client, and her client’s alleged servicer, fully cooperate with our discovery attempts. Further, opposing counsel admitted the need for this evidence in oral argument. Her admissions support our request for this testimony and demonstrate HSBC, by and through Wells Fargo, is creating prejudice by refusing to provide it. See Transcript, p. 46 L. 17 – p. 50 L. 4; p. 51 L. 16 – p.53 L. 1

At the District Court level, HSBC has systematically blocked all discovery attempts. HSBC’s alleged counsel Erika Peterman refused to provide proof she is acting on HSBC’s behalf so we could require HSBC to acknowledge involvement in this action, Montana oversight agencies could gain the jurisdiction to assist us, and HSBC could be required to cooperate in the discovery process. In response to the State of Montana Banking Commissioner’s Office, as well as ours and other’s personal inquiries and discovery attempts, HSBC verbally and in writing denied any involvement in this action and directed all inquiries and responsibility to Wells Fargo. In response to our and other’s inquiries of HSBC’s alleged Servicer Wells Fargo, per HSBC’s instructions, Wells Fargo denied being a part of this action and declined to produce requested production. Even during oral argument on summary judgment, HSBC’s alleged counsel made a great distinction between Wells Fargo and HSBC and their roles in this action. To support HSBC’s complaint, opposing counsel has solely relied on Wells Fargo’s claims we agreed to the Note presented, which we have clearly denied (Reply Brief in Support of Defendants’ Motion for Summary Judgment, p. 4; Response in Opposition to Plaintiff’s Motion for Summary Judgment, p. 2 lines 3-15 and p. 3 lines 6-19); two assignments from Wells Fargo to establish beneficial interest, which we have clearly challenged in virtually every document and argument submitted to this Court and which we have the legal right to challenge because they are void due to their fraudulent nature and unlawful recordation (see footnote 1); an unverified payment history provided by Wells Fargo to claim default, when our only admission regarding payments from April 1 forward is that we were abused with malicious prevention of performance actions and the history provided shows we made the March 1 payment HSBC’s complaint claims we missed; and that we agreed there is a debt, which we have emphatically denied we owe any debt to HSBC and have produced evidence any debt to Wells Fargo has been dissolved due to Wells Fargo’s unlawful actions (Response in Opposition to Plaintiff’s Motion for Summary Judgment – HSBC Alleges Default, pp. 14-18; Amended Answer and Counterclaim: Eleventh Affirmative Defense – Prevention of Performance, pp 22-23; Thirteenth Affirmative Defense – Mortgage Fraud, pp. 23-26; Fifteenth Affirmative Defense – Unconscionability, pp. 27-30;  Fourth Cause of Action – Prevention of Performance, pp. 60-61; Eleventh Cause of Action – Fraud, pp. 76-87).  Yet, forsaking all logic, and despite her claims to the contrary, Erika Peterman reacted angrily and in a hostile manner when we mentioned Wells Fargo was an indispensible party in this action. Whether or not that is the correct legal wording, HSBC does have to answer for Wells Fargo’s actions if we have to be bound by their claims. Our property would have been debt free, our family would be reaping the fruits of our labors, and this wrongful foreclosure would never have been filed if it were not for Wells Fargo’s actions and inactions. It is unjust to allow HSBC to pursue this foreclosure in HSBC’s name so they can bypass Montana oversight, deny involvement in this foreclosure to obstruct our discovery attempts, and then solely utilize Wells Fargo’s claims to steal our ranch.

Fatally, Ms. Peterman’s reaction at the end of oral argument caused this District Court to abruptly end the summary judgment hearing. This left us without direction on how to submit or request opportunity for additional discovery as promised by this Court prior to the commencement of the hearing. We also fatally lost opportunity to prepare argument and be heard regarding the prejudices created in striking our Motion To Amend and being able to have the evidence provided in our Amended Answer and Counterclaim in the record. We requested the Clerk approach your chambers for direction and understood you would instruct us what to do next. No instructions were received before you rendered your decision.

Additionally, even though we diligently followed all of the pre-trial steps according to the scheduling order in filing our amended pleadings, witness list and exhibit list, HSBC failed to submit any pre-trial documentation. This systematically prevented our ability to conduct discovery since both HSBC and Wells Fargo denied any and all involvement in this foreclosure, and no verified, sworn to, or admissible evidence to refute was provided. Reasonable inference had required us to assume Erika Peterman, through her affiliation with bad boys RCO Legal and Northwest Trustee, was trying to steal our ranch without authority.

We requested the case be dismissed for lack of standing, breach of contract and fraud by filing a Motion for Summary Judgment. Based on our understanding of the law and the truth, and the Complaint as presented, there were no genuine issues of material fact regarding standing that HSBC could dispute. 1) HSBC provided no admissible or verified evidence that HSBC is the true owner and holder of our loan to establish their right to cause of action regarding any alleged default. We understood it was the appropriate and only time we could challenge standing and HSBC had none. We were originally instructed by legal counsel to file a general denial and were prevented from filing our Amended Answers and Counterclaim prior to filing for summary judgment because we had not yet reached the date the Court set aside for us to file our amended pleadings. Further, our research indicated filing pleadings or addressing other issues first prior to filing our Motion for Summary Judgment could nullify our right to claim HSBC did not have standing. 2) HSBC directly prevented our performance by never notifying us of their alleged involvement with our account and adamantly denying involvement in this foreclosure. 3) HSBC prevented our performance by never providing proper notice regarding acceleration and foreclosure thereby breaching any alleged contract, denying us opportunity to cure any alleged default, and preventing our ability to fulfill any alleged obligations to them. Ms. Peterman claimed in her brief for cross-motion that Wells Fargo provided this notification for HSBC. However, the alleged contract presents irrefutable argument the “Lender” was required to provide notice.

“Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument…” Mortgage, Section 22.

At all times, including with any alleged notification, Wells Fargo unilaterally concealed HSBC’s involvement with our account from us and all notifications and loan documents claimed Wells Fargo was the owner and holder of the mortgage. HSBC’s failure to provide notice denies HSBC opportunity to disassociate themselves with Wells Fargo’s prevention of performance actions as Ms. Peterman tried to do during oral argument. Certainly, any reasonable person would agree it is unjust to allow HSBC to claim benefit of Wells Fargo’s alleged notification while rejecting responsibility for Wells Fargo’s prevention of performance actions. 4) HSBC failed to provide witnesses or exhibits that could establish or support their claims. This prejudiced and prevented our ability to conduct discovery and rendered HSBC’s right and ability to defend their claims moot. 5) HSBC failed to properly submit verified evidence to support their Complaint in accordance with M.R.Civ.P. 56(e). Thus, their Complaint should be dismissed. 6) HSBC’s complaint was based on a false claim of a missed March 1, 2012, payment. Proof of payment was provided to the Court and we testified all additional payments were stubbornly refused and prevented by HSBC through their alleged Servicer Wells Fargo in breach of contract, fair debt collection, federal lending laws, Wells Fargo’s agreement with the Montana Attorney General’s office, and other such breaches. Therefore, no accurate default, nor proof of default, was provided. 7) HSBC prematurely filed this foreclosure in breach of all alleged agreements made with the Nickersons and in violation of all guidelines governing lending and debt collection in Montana and associated with this Trust. We attempted to make payments. HSBC, by and through Wells Fargo, refused and failed to accept payments. 8) All of HSBC’s claims are fraud and no right to action can arise out of fraud. In short, we sought summary judgment because all other attempts at remedy, both judicial and non-judicial, were blocked by HSBC and Wells Fargo; HSBC had fatally failed to establish a legitimate complaint in accordance with summary judgment requirements and national mortgage standards which require all pleadings to be accurate and based on personal knowledge; and we believed this Court could and would see the truth and provide immediate relief for our family.

HSBC responded with a request for an extension to respond until February 10. According to the Court record, Erika Peterman missed the extension deadline. No additional extension was requested or granted. Her response was filed by email on February 11.

HSBC then filed a Brief In Support of Plaintiff’s Cross-Motion for Summary Judgment without actually filing a cross-motion. This was very confusing to us and we were unsure how to properly respond or if Erika Peterman could file such a document. None of the issues raised were standing issues so we did not and do not feel it was appropriate for HSBC to file for summary judgment against us prior to discovery being completed, especially when she provided no admissible discovery and we could demonstrate her complaint was rooted in fraud.

“Furthermore, HSBC failed to respond properly according to M.R.Civ.P. 56(e)(2). Their evidence of specific facts consists of unverified and disputed loan documents, unverified and disputed account history, unauthenticated letters and faulty assignments, contains no affidavits and is supported only by inadmissible evidence. Therefore, according to M.R.Civ.P. 56(e)(2) summary judgment should be entered in favor of the Nickersons.” (Reply Brief in Support of  Defendants’ Motion for Summary Judgment, p. 2)

Opposing counsel’s cross-motion brief claimed summary judgment was appropriate without allowing discovery to be conducted regarding these issues, and was filed before we could have opportunity to amend our answers due to the timing established in the scheduling order. We objected to this motion and again directed the Court to HSBC’s lack of standing.

“As a matter of law, the Nickersons are entitled to summary judgment because HSBC has no documents, no mortgage, no assignments, no default, no beneficial interest, no ownership, no holder status, and no standing.”  (Response in Opposition to Plaintiff’s Motion for Summary Judgment, p. 22)

We assert if this Court felt we failed to sufficiently establish HSBC lacked standing to continue this action, then discovery should have been allowed to continue and we should have been allowed to amend our answer to address HSBC’s claims and disputed facts. The argument that we relinquished all rights to amend our answer, expand the factual record of the case, or defend against HSBC’s unsupported claims because we filed for summary judgment regarding standing does not promote justice or comply with the order of the rules of civil procedure which require standing be addressed prior to additional pleadings being litigated. To allow this is to punish us for following the rules.

In this document (the cross-motion brief), HSBC alleged we initiated a mortgage debt, made conclusory statements regarding HSBC’s ownership of the debt, and claimed we did not pay the debt. Our obligation was to try to make payments. We did. Wells Fargo prevented our performance. Therefore, HSBC cannot claim we defaulted if we were prevented from performance. HSBC mistakenly claimed we defaulted on the payment due March 1, 2012, and concealed the fact Wells Fargo refused payments beginning in April 2012.

HSBC never provided any verified evidence that they hold a note and own a debt we agreed to, that we defaulted on, or that we could default on (See Nickersons’ Brief in Support of Motion for New Trial – Irregularity of Proceedings §§ 2 and 6). We stated Wells Fargo prevented us from paying any existing debt by refusing our payments (See Affidavit of Nick Nickerson in Support of Objection to Orders – ¶¶13-17. Transcript – p. 41, L. 5 – p. 45, L. 5; p. 46, L. 17 – p. 52, L, 23; p. 67, L. 20 – p. 75, L. 14). HSBC did not conduct or provide any discovery, and did not at any time refute our claims of prevention of performance. We never admitted we did not make payments. Rather, HSBC’s counsel and Wells Fargo have admitted our payments were refused and acknowledged there are issues of fact.

“So it could create a factual dispute with Wells Fargo, but not with HSBC… I understand they wanted to make payments of the note, but that’s separate issue of the pooling and service agreement, and violations of the trust. I mean, they can bring claims against Wells Fargo, or against HSBC, for either of them maybe not accepting payments… Well, everything they say could create an issue of fact.” Transcript, 14:6-8; 28:15-21; 47:22-23

In an effort to circumvent their failure to provide proof of default, HSBC has falsely claimed we admitted we did not make payments. Our Answer, testimony, discovery and testimony included in our Amended Answer and Counterclaim, and the discovery and testimony concealed by Wells Fargo disputes this fact. We have never admitted we did not make payments and we have claimed prevention of performance. Not making payments and being prevented from making payments have very different legal consequences. The law says, Money refused releases the debtor, and

Effect when performance prevented by creditor. If the performance of an obligation is prevented by the creditor, the debtor is entitled to all the benefits that the debtor would have obtained if the obligation had been performed by both parties.  MCA § 28-1-1302

As a matter of record and to support our reasons why Wells Fargo and HSBC were wrong to prevent our performance, we have proven trust servicing agreements governing the trust this property was allegedly entered into were clearly violated. These violations demonstrate HSBC and Wells Fargo’s malicious intent to defraud us and intentionally violate Montana law.

Servicing Objectives – Exhibit 10.1 Servicing Agreement – Section 12.1.3 – pg. 58
“… The Servicer should treat each Delinquency individually… The Servicer must vary its collection techniques to fit individual circumstances, avoiding a fixed collection pattern which may be ineffective in dealing with particular Borrowers...”

Servicer’s Discretion – Exhibit 10.1 Servicing Agreement – Section 12.3.2 – pg. 58
“The Servicer shall have reasonable discretion to extend appropriate relief to Borrowers who encounter hardship and who are cooperative and demonstrate proper regard for their obligations…”

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.” (emphasis added)

In accordance with the scheduling order, we filed our amended pleadings presenting our affirmative defenses and counterclaims which detailed the prevention of performance issues we had with Wells Fargo (see amended pleadings pages 18-23, affirmative defenses 5 – 12 and page 60, Fourth Cause of Action – Prevention of Performance). HSBC failed to meet their deadline to respond or object so we confirmed with the Court’s clerk our pleadings were deemed admitted. The truth was before the Court and we believed the truth would set us free.

HSBC was silent regarding these amended pleadings for two months. Then, 53 days after their deadline to respond (67 days after being served), without allowing us opportunity to know about the request, object, be heard or demonstrate how this ruling prejudiced us, HSBC petitioned the Court to allow them to respond, and the Court immediately granted this request. See Objection to Order on Motion to Amend Answer, Counterclaim and Demand for Jury Trial, p. 10. HSBC responded by objecting to the pleadings and this Court struck our amended pleadings even though our submission was within the timeline established in the scheduling order by this Court, doing so would severely injure our defense and prejudice our case, there is no time limit when fraud is present, and all delays and timing issues were due to HSBC’s failure and negligence in responding.

This Court granted summary judgment to HSBC without allowing us opportunity for oral argument as requested. We filed an objection and this Court scheduled an oral argument in which we 1) further detailed Wells Fargo’s prevention of performance; 2) requested witness testimony prior to the hearing and witnesses were present at the hearing to offer corroborating testimony of prevention of performance to the Court; 3) complied with the Court’s instructions at the hearing to allow opposing counsel to see evidence that documented our attempts to make payments and Wells Fargo’s refusal to accept payments; and 4) demonstrated the facts the note was endorsed to Wells Fargo, not HSBC, and the assignments HSBC uses to claim ownership so they could require us to make payments are clearly fraudulent.

This Court granted summary judgment to HSBC. This judgment ignored genuine issues of material fact and determined, contrary to the law[1], we could not question HSBC’s ownership because we are not parties to the fraudulent assignments. This Court also determined we had not presented evidence of Wells Fargo’s prevention of performance actions even though, according to the standards regarding summary judgment, our testimony was to be believed and we presented evidence from Wells Fargo employees to the Court and to opposing counsel.

“On a motion for summary judgment, the Court does not weigh evidence or determine truthfulness of allegations; instead, it determines the existence of genuine issues of material fact… Direct testimony of the non-movant must be believed… (citations omitted).” Sparks v. ALLSTATE MEDICAL EQUIPMENT, INC., Case No. 1:14CV00166EJLCWD. (D. Idaho, 2015).

This Court should remember we were not timely notified of the Summary Judgment Hearing. (See Nickersons’ Brief in Support of Motion for New Trial § 5. We were not provided with time to prepare for oral argument and a summary judgment “hearing” was not held.) We were instructed by this Court to attend the hearing and were promised this Court would allow us additional opportunity as needed to provide evidence to support our claims and defenses. This opportunity did not occur and has not occurred.

Additionally, we were unaware the striking of our motion to amend our answer and counterclaim would be argued at the summary judgment hearing. At the hearing the Court stated, “I’m happy to allow the Nickersons to address why the court should grant their motion to amend so they can file a counterclaim today. And because they are representing themselves, some latitude ought to be given to allow them to address those complaints and concerns.” Additional comments from the Court indicated we would be able to address our Motion to Amend. The opportunity to prepare an argument and be heard on how severely this ruling prejudiced us was not and has not been provided.

Neither HSBC nor this Court has permitted the truth of this matter and what Wells Fargo did and did not do regarding the servicing of this loan to be adjudicated. The entire discovery process and the Nickersons’ right to due process of law have been short circuited by HSBC, opposing counsel and the Court’s rulings at the District Court level.

The Montana Supreme Court has offered us opportunity to discover and present our evidence demonstrating Wells Fargo rejected our payments and why that was wrong. Wells Fargo has continued to block all discovery attempts. They have denied Wells Fargo employees access to our records. We have contacted witnesses in and traveled to other states to obtain affidavit testimony from current and former Wells Fargo employees who have personal knowledge of our accounts, payment attempts and commitments to our obligations. This testimony defeats summary judgment, demonstrates malicious prevention of performance, and ultimately dismisses HSBC’s complaint. Thus, Wells Fargo will not permit their employees to provide this testimony. Wells Fargo, allegedly acting on behalf of HSBC, is forcing other discovery methods to compel them to provide evidence that unequivocally documents Wells Fargo’s rejection of our payments and their blatant violations of Montana law. Forcing HSBC to admit to their involvement in this foreclosure and Wells Fargo to cease and desist from preventing witnesses identified in our witness list submitted in accordance with the Court’s scheduling order from providing affidavit testimony regarding their prevention of performance actions requires more time and resources to be expended. HSBC has directed all inquiries regarding our loan to Wells Fargo and all responsibility regarding this foreclosure to Wells Fargo. It is HSBC and Wells Fargo not the Nickersons causing this delay in justice being rendered.

Thus far, we have gathered testimony from witnesses who were present and can personally testify to Wells Fargo’s intentional prevention of performance and other issues regarding this action. We have also gathered affidavit testimony from former Wells Fargo employees who can attest to our commitment to our obligations to Wells Fargo and corroborate Wells Fargo’s unwarranted attack on our financial portfolio. We have secured Wells Fargo’s admission and other’s corroboration we made contact with Wells Fargo and attempted to make payments in April, May, June, July and so on. The perpetual severity of a foreclosure judgment against our property demands we be allowed to fully present all evidence available to show all our claims are rooted in truth and reflect the true occurrences of the events surrounding and occurring prior to this litigation. We contend neither HSBC nor Wells Fargo can present any evidence or testimony that refutes we made attempts to make payments and cure any alleged default created by their actions. Account notations, transcripts, communication records, taped conversations, and employee testimonies will all corroborate we pled with Wells Fargo to accept our payments. The evidence can show payments, unwarranted late fees, and demanded blackmail fees, in part and in full, were repeatedly offered by us, but denied by Wells Fargo. Additional time and opportunity to compel the production of this evidence is necessary.

We had the wherewithal to make the payments. Wells Fargo refused them. We continued to offer payments even though Wells Fargo’s comprehensive actions created hardship for us. We continued to demonstrate to Wells Fargo we had the wherewithal to make the payments, Wells Fargo refused to work with us in any way. Wells Fargo employees told us they were unable to access our account to make payments. At times, Wells Fargo employees told us they were unable to even make notations on the account. Other times, we received form letters from Wells Fargo confirming we made contact with Wells Fargo regarding making payments. Independent reviews had already determined Wells Fargo handled our accounts improperly and Wells Fargo had communicated to employees they had tremendous exposure and were concerned we would sue them. Our focus was to get the accounts straightened out and move forward. Harold Lovelady, a Wells Fargo’s representative assigned to us in response to inquiries from the Montana Attorney General’s office, admitted in 2013 no remedy was or had ever been available to us, not because we did not or could not make payments, but because Wells Fargo had entered our loan into a closed trust. Wells Fargo denied involvement with the foreclosure, but admitted to Mike Palzes of the Montana Attorney General’s Office, Consumer Protection Division, that Wells Fargo had refused our payments and did not work with us because our loan was allegedly entered into a trust. Kobe Alic, a Wells Fargo’s representative assigned to us in response to inquiries from the State Auditor’s office, has admitted we communicated with Wells Fargo regarding making payments. We are pursuing additional discovery regarding the true content of all these communications. We are requesting copies of other specific communications such as the requests his office received from Teresa Koepke and Jody Lauzon to provide testimony on our behalf regarding Wells Fargo’s prevention of performance; June 2012 notations on our account by Teresa Koepke, Jody Lauzon, and Randall Peterson regarding our payment attempts; extensive notations on our account by Heather Hummel regarding Wells Fargo’s attacks on our entire portfolio; and other such specific communications that corroborate our claims. Additional discovery regarding those communications will prove we offered payment and Wells Fargo refused. This second extension is necessary to provide this and other corroborating evidence that refutes all of HSBC and Wells Fargo’s claims and shows why their actions were wrong.

Your Honor, our testimony that we were prevented from performance is well documented. The truth can only document it further. The remand restrictions escalate the necessity of the testimonies of Wells Fargo’s employees and records.

“Limiting all discovery solely to prevention of performance prevents us from using testimony of other corroborating witnesses because their communications and the foundations for their testimony were initiated in context with the fraudulent transfer of ownership from Wells Fargo to HSBC. The banks’ concealment of these fraudulent activities has prevented and delayed us from gaining assistance from appropriate agencies, has allowed Wells Fargo to bypass agreements and regulations associated with the settlement made with the Montana Attorney General’s office, and has allowed their inhumane abuse of our family to go unchecked.” Second Motion for Extension of Time, Supporting Affidavit of Nick Nickerson, ¶ 22.

The Nickersons remain committed to end this wrongful foreclosure and vicious attack on our financial portfolio. We are resolved to save our ranch, clear our family name and reclaim the life that has been wrongfully stolen from us. We are praying our unwarranted pain and suffering will compel Montana to take additional steps to prevent Wells Fargo and other banks from abusing fellow Montanans. We are praying what has happened to us will compel our country to protect the freedoms that surround property ownership for all fellow Americans. To this end, we have followed the rules of procedure, honored every request of this Court, and diligently presented our case before this Court. We have asked for justice to be rendered based on the true merits of this case.

Wherefore, in the interest of justice, the Nickersons request the Court grant this Second Request For Extension and compel HSBC to comply with the Supreme Court’s remand and require its alleged servicer, Wells Fargo, to cease and desist from obstructing justice, ethically work with the Nickersons in conducting discovery, and release their employees to provide production and unrestricted testimony of true events as has been requested by their employees and by the Nickersons. A request for further documentation from Wells Fargo’s Executive Office and a subpoena for production are being served on Wells Fargo in conjunction with this request for an extension in order to facilitate this discovery.

Lastly, Ms. Peterman claims we have blatantly misrepresented her hostile actions toward us. First, if we have misinterpreted Ms. Peterman’s motives or intentions, we offer our apologies to this Court and genuinely extend Ms. Peterman opportunity to demonstrate how we have misjudged her person or her character. However, we adamantly assert we have not at any time misrepresented her actions and inactions. We consider someone angrily jumping out of their seat and threateningly facing off toward us as Ms. Peterman did at the end of oral argument on summary judgment an act of hostility. We consider it a further act of hostility when Ms. Peterman acted confrontationally toward our daughter, who contacted Ms. Peterman’s office on our behalf, and stated she was unwilling to act cooperatively because she felt like we attacked her personally in court and in our brief. We consider her willing involvement in this wrongful foreclosure and continued silence regarding the truths surrounding this wrongful foreclosure case an act of hostility. Wells Fargo, HSBC and their accomplices have attacked us, greedily involved our account in fraudulent transactions, manipulated the judicial system to prevent us from holding them accountable, wrongfully accused us of defaulting on a loan, attempted to steal our equity, and committed other such atrocities against us. (Information readily available in public record demonstrates Wells Fargo’s habitual criminal assault on their customer’s accounts and demonstrates their common practice of foreclosing on properties with substantial equity. We offer Wells Fargo’s widespread reputation of corruption as corroboration of our claims.) Ms. Peterman and these entities know employees have confirmed we fervently tried to force Wells Fargo, the only entity we knew had involvement with our account, to take our payments along with all fees wrongfully applied against our account. However, they have concealed the truth, prevented testimony that would implicate them in wrongdoing, and continued to attack, abuse and harm us by pursuing these proceedings without merit. Any reasonable person must determine this to be hostile behavior.

Additionally, Ms. Peterman stated the Supreme Court issued its remand order on April 3, 2016, in her objection to our second extension. This is not accurate. The Supreme Court issued its order on May 3, 2016. In addition to this inaccuracy, Ms. Peterman’s objection offends justice and promotes injustice by offering the reason for her objection is no attempts at formal discovery at the District Court level and no attempts at discovery since the remand have been conducted. We have offered extensive personal testimony that creates genuine issues of material fact regarding HSBC’s standing and claims of default; requested opportunity to provide witness testimony; have requested verbally, in writing and in person that Wells Fargo employees and other representatives provide affidavits, letters and other verified testimony regarding Wells Fargo rejecting our payments; tried to facilitate these employees securing permission to provide testimony; issued written, verbal and QWR requests for production to HSBC and Wells Fargo; escalated requests for production to Wells Fargo’s Executive Office including but not limited to account notations, transcripts, copies of taped conversations, communication records, and permission for their employees to simply tell the truth of their experiences with us; prepared 92 pages of well documented evidence in our Amended Answer and Counterclaim which Ms. Peterman hypocritically requested be struck (It is hypocritical, at best, to request the Court strike and ignore discovery, then claim no attempts at discovery were made.); and researched and documented Wells Fargo’s habitual victimization of us and the World At Large. Wells Fargo’s blatant obstruction of justice in failing to release our account records and refusing to allow employees with firsthand knowledge and experience of their intentional prevention of performance to provide testimony, constitutes an issue of material fact based on reasonable inference of their wrongdoing, is responsible for the delays in our providing discovery, and is the causal reason for our need for a second extension. (Black’s Law Dictionary Tenth Edition defines inference as: “1. A conclusion reached by considering other facts and deducing a logical consequence from them. 2. The process by which such a conclusion is reached: the process of thought by which one moves from evidence to proof.”) To imply otherwise is an abuse of the judicial trust and authority vested in Ms. Peterman.

HSBC has categorically denied involvement in this foreclosure and deferred all inquiries regarding our account to Wells Fargo.

HSBC has no rights to cause of action against us for our actions or inactions.

Wells Fargo has prevented us from performance and from producing witness testimony and other evidence that proves they prevented our performance.

We did not default on our loan.

We are victims of mortgage fraud, abusive debt collection and scandalous injustice.

We are not delaying justice.

We are pleading for it.

Attached affidavits are incorporated herein. The testimony provided is not intended to be construed as comprehensive and is being submitted as part of our response to the Supreme Court’s remand order. Therefore, we and our witnesses reserve the right to augment these testimonies at a later date to include all personal knowledge involving the enormity of issues surrounding this action and the true and correct events that have occurred. We further reserve the right to provide additional testimonies, production and evidence per the new scheduling order or deadline to be set by the Court.

 


[1]“the common law rule which permits a debtor to assert against an assignee any ground that renders the assignment void or invalid…The current edition of American Jurisprudence states the same rule more succinctly, while adding the rationale:

 

The obligor of an assigned claim may defend a suit brought by the assignee on any ground that renders the assignment void or invalid, but may not defend on any ground that renders the assignment voidable only, because the only interest or right that an obligor of a claim has in the assignment is to ensure that he or she will not have to pay the same claim twice. 6 Am.Jur.2d Assignments § 119 (database updated May 2012)…

 

“foreclosure by the wrong entity does not discharge the homeowner's debt, and leaves them vulnerable to another action on the same note by the true creditor…” (emphasis added) Miller v. Homecomings Financial, LLC, 881 F. Supp. 2d 825 (S.D. Tex. 2012)




Subpeona Duces Tecum For Production Only

Subpeona Duces Tecum For Production Only

TO: Wells Fargo Bank, N.A.

FROM: Montana First Judicial District Court, Lewis and Clark County

Pursuant to M.R.Civ.P. Rules 30 and 45, YOU ARE HEREBY COMMANDED TO produce copies of the below-designated documents, electronically-stored information, tangible things or property in your possession, custody or control on or before November 21, 2016. The copies shall be delivered to the Nickersons at the above address via first class mail, overnight express mail or priority mail.

The things which you are required to produce are associated with the Nickersons’ Wells Fargo Home Mortgage Account ending in REDACTED. Please produce the following:

· Communication records – dates, times, context and actual content of all communications with the Nickersons

· Account notations – all notes from all conversations or other communications both internal within Wells Fargo and with the Nickersons in the original, unabridged and unaltered form they were entered and attached to the accounts

· Written and verbal correspondence – all written and verbal correspondence, unabridged and unaltered, including all conversations initiated by Wells Fargo and the reason for the correspondence

·  Recordings of conversations – unabridged copies of all recorded conversations in CD format

· Any and all internal emails, notes or other communications of Wells Fargo employees, contractors, representatives or agents regarding these accounts

· 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

· 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

· Documentation as to who decided to refuse the Nickersons’ payments and prevent the Nickersons’ performance and what date(s) this decision was made

· 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

· Any and all other documents, correspondence, communications internal or external, file transfers and reporting associated with these accounts

· 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

·  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

· Original loan documents

· 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

· 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.

· Dates, times and names of all bankers, tellers, Wells Fargo employees, contractors or agents who accessed or attempted to access the accounts

· All correspondence, written and verbal, between Wells Fargo and government agencies, consumer advocates and state employees or representatives regarding these accounts

· All correspondence between HSBC and Wells Fargo regarding these accounts

If any of these items are stored electronically, please produce that information in PDF format or any other format that can be easily read and copied.

Failure to produce the designated items may constitute contempt of court.

For your information, M.R.Civ.P. Rule 45 contains the following provisions:

 (d) Protecting a Person Subject to a Subpoena.

(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction -- which may include lost earnings and reasonable attorney fees -- on a party or attorney who fails to comply.

(2) Command to Produce Materials or Permit Inspection.

(A) Appearance not Required. A person commanded to produce designated documents, electronically-stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing, or trial.

(B) Objections. A person commanded to produce designated materials or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or sampling any or all of the designated materials or to inspecting the premises -- or to producing electronically-stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply:

(i) At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection.

(ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party’s officer from significant expenses resulting from compliance.

(3) Quashing or Modifying a Subpoena.

(A) When Required. On timely motion, the issuing court must quash or modify a subpoena that:

(i) fails to allow a reasonable time to comply;

(ii) requires a person who is neither a party nor a party’s officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person -- except that, subject to Rule 45(d)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held;

(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or

(iv) subjects a person to undue burden.

(B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires:

(i) disclosing a trade secret or other confidential research, development, or commercial information;

(ii) disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the expert’s study that was not requested by a party; or

(iii) a person who is neither a party nor a party’s officer to incur substantial expense to travel more than 100 miles to attend trial.

(C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(d)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:

(i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and

(ii) ensures that the subpoenaed person will be reasonably compensated.

(e) Duties in Responding to a Subpoena.

(1) Producing Documents or Electronically-Stored Information. These procedures apply to producing documents or electronically-stored information:

(A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.

(B) Form of Producing Electronically-Stored Information Not Specified. If a subpoena does not specify a form for producing electronically-stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.

(C) Electronically-Stored Information Produced in Only One Form. The person responding need not produce the same electronically-stored information in more than one form.

(D) Inaccessible Electronically-Stored Information. The person responding need not provide discovery of electronically-stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of the undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

(2) Claiming Privilege or Protection.

(A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must:

(i) expressly assert the claim; and

(ii) describe the nature of the withheld documents, communications, or things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.

(B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.

(f) Contempt. The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty’s failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(d)(3)(A)(ii).


We subpoenaed the records from Wells Fargo, but Wells Fargo ignored the subpoena and did not answer the requests for production regarding our Montana Ranch.

On the day the production of the records from Wells Fargo was due, HSBC filed a motion to quash the subpoena under M.R.Civ.P. 45(d)(3)(A)(iv) claiming undue burden. Black's Law Dictionary defines undue burden as "A substantial and unjust obstacle to performance of a duty or enjoyment of a right." 

We responded,  
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 was 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. Bacca 225 F.R.D. 624, 853 (C.D. Cal 2005)" ld. 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 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. RESPA (Regulation X) as found at 12 CFR §§ 1024.36 and 1024.38(c)(2)

Response in Opposition to Motion to Quash

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 (10th 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.

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 (10th 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.


HSBC's motion to quash was filed 31 days after being served to Wells Fargo, not HSBC. This motion was untimely per M.R.Civ.P. 45(d)(2), "The objection must be served before the earlier time specified for compliance or 14 days after the subpoena is served. before the earlier of the time specified for compliance or 14 days after the subpoena is served."

HSBC's motion to quash had no foundation, basis or standing. No reasoning or argument for why it created undue burden for Wells Fargo to be required to comply with federal law was provided. Nonetheless, the District Court granted the quash.
 
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Wells Fargo and HSBC have thwarted justice and our Constitutional and contractual rights throughout this litigation.


All persons are born free and have certain inalienable rights. They include...the rights of pursuing life's basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property...

No person shall be deprived of life, liberty, or property without due process of law.

                                                                                                      Montana Constitution

No person shall...be deprived of life, liberty or property, without due process of law;
                                                                                               United States Constitution

Prevention doctrine is a common-law principle of contract law which says that a contracting party has an implied duty not to do anything that prevents the other party from performing its obligation. A party who prevents performance of a contract may not complain of such nonperformance.                                     www.definitions.uslegal.com

[I]n every contract there is an implied covenant that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract, which means that in every contract there exists an implied covenant of good faith and fair dealing.
                                                       
Kirk La Shelle Co. v. Paul Armstrong Co. 263 NY 79 (1933)

Neither borrower nor Lender may commence, join, or be joined to any judicial action (as either an individual litigant or the member of a class) that arises from the other party’s actions pursuant to this Security Instrument or that alleges that the other party has breached any provision of, or any duty owed by reason of, this Security Instrument, until such Borrower or Lender has notified the other party (with such notice given in compliance with the requirements of Section 15) of such alleged breach and afforded the other party hereto a reasonable period after the giving of such notice to take corrective action.                                                                    Alleged Nickerson Mortgage Document


The injustice we have suffered throughout this battle with Wells Fargo and the judicial system is inconceivable. We believe telling our story and continuing this battle is a civil and moral duty. Having reviewed court records across Montana involving Wells Fargo, HSBC, and Erika Peterman, and conducting extensive research involving foreclosure cases across the United States, this is a precedent setting case due to the multitude of different abuses present.

                                           What Happened To Us
                                     
       and could happen to you

Prevention of performance
Fraudulent notarization
Robo-signing
Mortgage fraud
Unconscionability
Inaccurate accounting
Abuse of service process
Criminal trespass
Wrongful foreclosure
Unfair and deceptive practices
Domestic terrorism
Deceptive predatory lending
Breach of contract
Breach of the covenant of good faith and fair dealing
Emotional distress
Knowing misrepresentation
Blatant disregard for laws
Theft
Deliberate concealment
Forgery
Hostile takeover of chosen, earned and established way of life
Actual malice
Fraud
Falsehood

And the list goes on. Wells Fargo and HSBC must be held accountable for their fraudulent business practices; and must be required to answer to the same laws, and to the same degree, HSBC is relying upon to claim they have right to action against us. The State of Montana and the World At Large can prevent these entities from victimizing other innocent families if the laws already in place are enforced and the consequences for their actions are severe and substantial enough to deter them from conducting fraudulent business practices in Montana. Evil prospers when good men do nothing. Good abounds when good men require bad men to do good.

The comprehensive abuses Wells Fargo and their accomplices have committed against our family constitute mortgage terrorism. These entities prevented our performance so they could conceal their intentional and malicious abuses of our family and violations of governing laws.

Domestic Terrorism is when someone engages in acts dangerous to human life that are a violation of the criminal laws of the United States or any state. The Nickersons lives have been dangerously threatened and attacked by those acting as conspirators and co-conspirators. Destroying the life, way of life and ability to sustain life with a wrongful foreclosure action that is based solely on falsified documents, fraudulent record keeping, willful evidence concealment and destruction, abusive verbal assaults, counterfeited bookkeeping, and other forms of extreme mortgage abuse and unfair debt collection and predatory lending practices constitutes an intent to perform an act that is dangerous to human life and is in violation of the United States Constitution, Montana Constitution, Montana code, Montana Rules of Civil Procedure, RESPA, Fair Debt Collection Practices Act, good faith and fair dealing, common law and case law.
                                                                                    Nickersons' Amended Answer and Counterclaim

While we were still under appeal, and even though the law and the remand afforded us the right to prove these abuses occurred and reverse summary judgment, Judge Menahan refused to consider our evidence or grant us a hearing and went ahead and ordered the sale of the property. The sheriff set the sale date for May 3, 2017.

We filed an Emergency Stay with the Montana Supreme Court to stop the sale since our case was still in appeal.

Emergency Motion to Enforce Stay

Comes now, Nick and Donna Nickerson, the appellants above named respectfully request this Supreme Court to enforce the stay of execution as rightfully granted in the remand order filed on May 3, 2016.

“The District Court’s judgment shall be held in abeyance, pending remand as herein set forth.  The stay of execution to which the bank agreed in the District Court shall remain in full force and effect while this matter is on remand.” Ex. 1.

 

BACKGROUND

On January 29, 2016, while this appeal was in progress, HSBC filed a motion in the District Court requesting entry of final judgment. We responded and filed a motion to stay with the District Court. On February 19, 2016, the District Court issued final judgment. The District Court did not issue any order regarding our motion to stay. On May 3, 2016, this Supreme Court remanded the matter to the District Court ordering a stay of execution and granting us 120 days to conduct discovery and provide testimony and argument regarding prevention of performance and why Wells Fargo was wrong to reject our payments (See Ex. 1). On August 31, 2016, we requested a 30 day extension which this Court granted. On September 30, 2016, we were forced to request another extension (Ex. 2) because Wells Fargo refused to provide our records or permit their employees, with firsthand knowledge of our payment attempts and Wells Fargo’s refusal of them, to provide affidavit testimony. This Court remanded the request for extension back to the District Court. The District Court did not respond so we filed a motion for extension of time with the District Court on October 21, 2016 (Ex. 3). In conjunction with this motion, we produced affidavits which corroborate our prevention of performance claims, provide testimony of our attempts to get Wells Fargo to accept our tendered payments, and demonstrate why it was wrong for Wells Fargo to reject our payments (Ex. 4). Having exhausted all other discovery methods available to us, we served Wells Fargo with a subpoena. On November 21, 2016, the deadline for production, HSBC filed a motion to quash our subpoena. Responsive briefing was filed (Ex. 5-6), and on February 2, 2017, the District Court denied our motion for extension, and contrary to the practice of law, granted HSBC’s motion to quash.

“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).

 

The District Court also reaffirmed his summary judgment order without allowing us opportunity or a hearing to present all evidence and argument to support our prevention of performance claims (Ex.7). On the same day, February 2, 2017, despite having a stay in effect, the District Court issued a writ of execution. The writ was then filed on March 30, 2017. However, we were not notified until we received a Notice of Sheriff’s Sale via the mail on April 5, 2017 (Ex. 8). The remand process is still ongoing.

 

ARGUMENT

We appeal to the Supreme Court for an emergency enforcement of the stay as the sale date for the unlawful seizure of our property is set for May 3, 2017. The District Court denied our motion for extension of time, reaffirmed summary judgment, and issued the writ of execution, because, “The Nickersons make no credible claim as to why they have not accomplished their discovery within the 150 days which the Supreme Court provided.” (Ex. 7) Black’s Law Dictionary, Tenth Edition, defines credible as, “The quality that makes something (as a witness or some evidence) worthy of belief.” This statement of the District Court demonstrates extreme prejudice and judicial overreach as his role is not as a trier of fact in this action. Judge Menahan made the personal determination our testimony was not worthy of belief and thwarted our ability to acquire additional corroborating testimony and evidence, demonstrating he is unwilling to allow us to obtain justice in the Lewis and Clark District Court (Ex. 9). The District Court has permitted Ms. Peterman, HSBC and Wells Fargo to conceal evidence and thwart discovery and repeatedly violate the Rules of Civil Procedure and laws governing this foreclosure action. This prejudice against us and partiality toward HSBC and their counsel is unjust, violates our right to a defense, denies our right to due process, constitutes an abuse of process, and must end now.

By issuing the remand, this Supreme Court has affirmed a genuine issue of material fact exists that defeats summary judgment and that we should have the opportunity to expound upon it. We have offered proof of prevention of performance, but have been thwarted by opposing counsel, HSBC, Wells Fargo and the District Court (Ex. 9). We have provided sworn and verified evidence, personal testimony, corroborating testimony to support our prevention of performance claims, and provided notice our witnesses can provide additional testimony (Ex. 2-4). We understood opportunity would be granted to present more testimony at a hearing or a final deadline would be given to turn evidence in for consideration. It is unjust to prejudice us for Wells Fargo’s continued obstruction of justice, and their concealment of our federally mandated records and the testimony of their employees. Wells Fargo and HSBC have failed to provide any testimony to refute or contradict our testimony and evidence regarding prevention of performance. Further, HSBC has failed to verify the Complaint or verify any payment history or default amounts so no admissible testimony is in the record to refute our claims of prevention of performance. Therefore, we request the Court stay all foreclosure sale proceedings pending resolution of the appeal; compel the subpoenaed records to be produced; issue a full remand; or dismiss their complaint with prejudice.

 

Regarding our credibility

“On a motion for summary judgment, the Court does not weigh evidence or determine truthfulness of allegations; instead, it determines the existence of genuine issues of material fact… Direct testimony of the non-movant must be believed… (citations omitted).” Sparks v. ALLSTATE MEDICAL EQUIPMENT, INC., Case No. 1:14CV00166EJLCWD. (D. Idaho, 2015).

 

We direct this Supreme Court to the affidavit of former Wells Fargo employee Heather Hummel (In Ex. 4).

“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…I believe Donna Nickerson to be an exemplary human being.”

 

We submit the affidavit of Shanni Barry (Ex. 10), investigator at the office of Montana State Auditor, Commissioner of Securities and Insurance - CSI. Shanni corroborates the testimony provided to this Supreme Court in our second motion for extension of time regarding Wells Fargo’s delays (Ex. 2). Shanni provides an email chain dated from April 22, 2016, to September 6, 2016, which confirms CSI was working with Wells Fargo on our behalf while Wells Fargo was maliciously stalling to allow the remand timeline to expire.

Wells Fargo and HSBC have delayed, blocked and thwarted discovery and prejudiced our case. Their silence denies them the right to be heard, and the law should not punish us for not producing what we do not have. One cannot give what one does not have. We did not default on this loan. All admissible evidence in the record supports our claims and assertions in their entirety. We were prevented from performance and HSBC does not have a lawful right to foreclose on our property.

 

Wells Fargo’s prevention of our performance violated Montana law.

          In February of 2012, Wells Fargo entered into a settlement agreement.

“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. (https://dojmt.gov/wp-content/uploads/Summary-of-AG-Settlement-3-12-12.pdf.).

 

Wells Fargo was required to appoint a single point of contact.

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. https://dojmt.gov/wp-content/uploads/Summary-of-AG-Settlement-3-12-12.pdf

 

Neither prior to initiating foreclosure, nor at any time in 2012 when we were BEGGING Wells Fargo to take our payments, did Wells Fargo appoint a SPOC to resolve the alleged default they created to conceal their criminal actions.

In addition, Wells Fargo violated its own agreements and Montana law by rejecting our payments and then refusing to work with us to resolve the alleged default created by their actions. Money refused releases the debtor.

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: (1) safeguard and account for any money handled for the borrower; (2) follow reasonable and lawful instructions from the borrower; (3) act with reasonable skill, care, and diligence;…(8) in the event of a 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.”

 

MCA § 32-9-170(8) requires Wells Fargo to negotiate with us in order to workout a resolution. It also requires Wells Fargo to adhere to their servicing agreements.

18.     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 [Sections 12.1.3 and 12.3.2 – pg. 58] 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. MCA § 32-9-170. Mortgage Servicer Duties. Affidavit of Nick Nickerson in Support of Motion for Extension of Time to Complete Discovery (Ex. 4)

 

Wells Fargo wrongly rejected our payments, violated servicing requirements and violated Montana law.

 

Further, Wells Fargo’s refusal to allow their employees to provide affidavits and refusal to provide our account records violates MCA § 32-9-170(2) “follow reasonable and lawful instructions from the borrower.” Our request for our records is reasonable, and in accordance with federal law, cannot lawfully be denied (RESPA – 12 C.F.R. §§ 1024.36 and 1024.38).

 

Finally, Wells Fargo violated the covenant of Good Faith and Fair Dealing.

“The nature and extent of an implied covenant of good faith and fair dealing is measured in a particular contract by the justifiable expectations of the parties. Where one party acts arbitrarily, capriciously, or unreasonably, that conduct exceeds the justifiable expectations of the second party. The second party then should be compensated for damages resulting from the other’s culpable conduct.” Nicholson v. United Pacific Ins. Co., 219 Mont. 32, 710 P.2d 1342, (1985).

 

MCA § 28-1-211. Implied covenant of good faith and fair dealing. “The conduct required by the implied covenant of good faith and fair dealing is honesty in fact and the observance of reasonable commercial standards of fair dealing in trade.”

 

Wells Fargo knew we would honor our commitments and were doing everything within our power to correct the default caused by their prevention of performance actions. Nonetheless, to mask their abusive debt collection and involvement with mortgage fraud, they turned a blind eye and deaf ear to us and our pleas. They refused to accept our payments, reinstate our loan, and provide us with account records or notations to document their actions. Since Wells Fargo acted unreasonably by denying our justifiable and lawful expectation that they accept our payments and work with us, and Wells Fargo did not observe the reasonable commercial standards documented in 1) the servicing agreements set forth in the contract that allegedly governs the servicing of our loan, 2) their settlement agreement with the State of Montana, and 3) Montana law, Wells Fargo violated the covenant of Good Faith and Fair Dealing and wrongly rejected our payments.

 

CONCLUSION

HSBC is attempting to execute judgment and steal our home. An emergency enforcement of the stay in effect is necessary and should be granted for the reasons incorporated herein. 1) The Court ordered a stay on remand and the remand process is not fully adjudicated. 2) Issues of material fact exist that defeat summary judgment.  3) The Nickersons have presented evidence, testimony and argument that defeat summary judgment. 4) Judge Menahan is not the trier of fact and is in error to determine the Nickersons or the evidence presented is not credible without the opportunity of due process.

Wherefore, we request the Court order HSBC and the Lewis and Clark County Sheriff to cease and desist from all foreclosure proceedings. Further, we request this Supreme Court enforce the stay pending the outcome of this appeal, or in the interest of justice and judicial economy, the Court fully recognize Wells Fargo’s prevention of our performance was wrong and injurious, and issue a full remand, or render judgment in our favor.


We created a document for the Montana Legislators to request their help in stopping the sale and to compel them to take action to secure all Montana homes. All Montana Senators and Representatives were provided a copy. Our family hand delivered 143 of the packets to the Senators and Representatives personally. You can read the document in its entirety at the bottom of this page. This document was also provided to the Helena offices of the Montana Senators, Representative and Secretary Ryan Zinke. These documents have since been hand delivered in Washington D.C. to the offices of Senator Steve Daines, Senator Jon Tester, and Representative Greg Gianforte. We have told our story to each of these three men and personally provided them with one of our It Happened To Us cards.

We contacted and re-contacted governing agencies, oversight groups, the Sheriff, the County Attorney's Office,  Attorney General Tim Fox, the Banking Commissioner's office, Governor Bullock and his office, and others we thought might have the authority to stop the sale. We reached out to the Montana State Bar, Judicial Review Board and Lawyer Ethics Counsel to see if they would help. We reached out to prayer groups and teams around the country to ask them to fight with us in faith and prayer. We prayed...

The Montana Supreme Court cancelled the sale, rescinded Judge Mike Menahan’s order, and called for the entire record to be provided for them to review. Words cannot express how relieved and thankful we were that they were willing to stop the sale.

On August 22, 2017, the Supreme Court rendered judgment in favor of HSBC.

We have filed a Petition For Rehearing, and are awaiting the Montana Supreme Court’s decision. Please pray for the Supreme Court Justices to have wisdom and to uphold the laws in place to save our home.

Petition For Rehearing

Petition For Rehearing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

B. What entity is prosecuting the complaint?

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

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

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

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

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

A. Summary judgment standards:

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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


This is our home. We want to keep it. We have and have always had the wherewithal to keep it. We have and will continue to fight to keep it. We did nothing wrong. We did not default. We have not consented or given cause or right to any person or entity to take our home from us.

The battle continues…    

UPDATE:
The Montana Supreme Court denied our Petition For Rehearing and closed the case on October 31, 2017.

The Court having considered the Petition, and the response from Appellee HSBC Bank, IT IS ORDERED that the Petition for Rehearing is denied.
                                                                                                                                    Montana Supreme Court

We are moving the battle to the next level. Pray! Get involved! It happened to us. It could happen to you.
 
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It Happened To Us - Timeline
Fighting To Save Our Home In Montana
 the battle with injustice and corruption continues
The Truth Will Set Us Free
The evidence speaks for itself.

The truth, all laws and all evidence prevent our Montana home and family ranch from being taken from us. If HSBC and Wells Fargo can unlawfully seize our ranch, no home in Montana is secure. We will be uploading evidence, documentation and court records here in the coming days. Please be patient with us. We are fighting a lot of bad guys right now, and are trying to meet all the good guys so we can save our home. Our time and resources are limited so we are trying to do the next best thing. Pray! It happened to us. It could happen to you.

Fellow Montanans, keep it in mind if it is happening to us, it is happening to you...because it happened to us in Montana.

Significant issues of material fact are highlighted below. These facts and the arguments surrounding them will be developed further as time allows.

HSBC has not established or proven standing.
HSBC presented and has relied upon two different assignments from Wells Fargo to establish standing. Both are unlawful, fraudulent and invalid. Neither lawfully establishes ownership or holdership in any way. One cannot assign the same thing twice. The fact Wells Fargo tried is indicative of fraud....

Assignment 1 is invalid and unlawful and cannot be relied upon to establish standing.
The assignment from Wells Fargo dated April 10, 2010, was fraudulently executed and unlawfully notarized in Washington. It was executed outside of the presence of a notary with a post-dated acknowledgment of April 12, 2010. This constitutes notary fraud. It was robo-signed by Jeff Stenman of Northwest Trustee Services as Attorney In Fact for Wells Fargo. This assignment allegedly assigned any and all of Wells Fargo's beneficial interest into a closed Trust. The title included with the Trust does not comply with the wording requirements on the Trust.

Interesting note: The firm representing HSBC is RCO Legal. Stephen Routh of RCO Legal and Routh, Crabtree, and Olson, P.S., is the CEO of Northwest Trustee Services. Conflict of interest?
 
Assignment 2 is a nullity and cannot be relied upon to establish standing.
The second assignment from Wells Fargo, allegedly assigning the same beneficial interest, dated August 22, 2012 is not valid because Wells Fargo had already allegedly assigned all, if any, beneficial interest they had to HSBC on April 10, 2010.

The second assignment also allegedly assigns the Note without the Mortgage. This makes the assignment an illegal document in Montana and renders the assignment a nullity.

Further, this assignment was executed in Minnesota by robo-signer Carla Naughton. Robo-signing violates the Montana Settlement Agreement and is not lawful in Montana. 

Additionally, the document labels the Nickersons’ Mortgage a Deed of Trust five (5) times and transfers interest in the “Deed of Trust”. First, we have never executed a Deed of Trust on this property. Second, A Deed of Trust cannot be executed on an over 200 acre property in Montana, MCA § 71-1-302.

The person executing this document obviously did not verify its’ contents. Errors in this document are intentionally inaccurate and this constitutes fraud.

fraus ominia vitiates – fraud vitiates everything

Both assignments are invalid and fraudulent for additional reasons. Wells Fargo did not have beneficial interest at the time of these assignments. Based on the Plaintiff’s caption on the complaint, HSBC indicates they are the TRUSTEE FOR WELLS FARGO ASSET SECURITIES CORPORATION, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-7 trust. If our mortgage is part of a Mortgage Backed Securities Trust, then Wells Fargo Bank, N.A. could not have had any ownership or beneficial interest in our Note and Mortgage at the time they assigned these documents to HSBC. Wells Fargo would have already had to sell, assign, or otherwise transfer all of their interest in our Note and Mortgage to Wells Fargo Asset Securities Corporation (the depositor) for deposit into the trust.

Further, Wells Fargo cannot assign interest of the Note and Mortgage to HSBC after the closing date of the Trust. Doing so introduces new assets into the trust which compromises the REMIC status of the Trust and violates IRS and SEC compliance laws and regulations.

Therefore, not only are both assignments fraudulent because Wells Fargo Bank, N.A., had no legal interest in the Note or Mortgage at the time of those assignments, but HSBC and their accomplice Wells Fargo are violating IRS and SEC laws and regulations regarding the tax exempt status of the trust and an illegal action cannot be used as proof of ownership. Clearly, not only were the two assignments fraudulent because of their timing, but they were fraudulent because of their content and signatures as well, and therefore, cannot be relied upon to prove ownership which consequently leaves HSBC with a lack of standing to enforce the provisions of the contract and this Complaint must be dismissed.

HSBC presented a copy of the Note with their Complaint. Wells Fargo presented a copy of the same Note in response to a QWR. The only problem is the Notes are not the same. Fraud!

One copy, which is specially endorsed to Wells Fargo, not HSBC, was the one submitted with HSBC's Complaint in April 2013. The other copy, which does not have an endorsement, was received in response to a QWR we sent to Wells Fargo in December 2013. Our QWR requested a copy of the original Note. As you can see, the two Notes are not the same. We requested to see the original Note, but neither HSBC nor Wells Fargo have ever produced it. FRAUD ALERT!



HSBC and Wells Fargo allege Wells Fargo entered our loan into the Wells Fargo Mortgage Backed Securities 2007-7 Trust in 2010 and again in 2012. The trust was closed in 2007. We have included some verbiage from the Trust for the experts viewing this page:

Wells Fargo Mortgage Backed Securities 2007-7
Trust Form 8-K - May 30, 2007
Reference Index


Closing Date – Exhibit 4.1 Pooling and Servicing Agreement – Section 11.20 – pg. 90
“The Closing Date is May 30, 2007.”

Governing Law – Exhibit 4.1 Pooling and Servicing Agreement – Section 10.04 – pg. 87
“This Agreement shall be construed in accordance with the laws of the State of New York (without regard to conflicts of laws principles), and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.”

Startup Day – Exhibit 4.1 Pooling and Servicing Agreement – Section 2.05 – pg. 46
“The Closing  Date is hereby designated as the "Startup Day" of the REMIC within the meaning of Code Section 860G(a)(9).”

Tax Matters; Compliance with REMIC Provisions – Exhibit 4.1 Pooling and Servicing Agreement – Section 8.13 - pg. 82
“(a) Each of the Trustee and the Master Servicer covenants and agrees that it shall perform its duties hereunder in a manner consistent with the REMIC Provisions and shall not knowingly take any action or fail to take any other action that would (i) affect the determination of the Trust Estate's status as a REMIC; or (ii) cause the imposition of any federal, state or local income, prohibited transaction, contribution or other tax on either the REMIC or the Trust Estate.”

Servicing Objectives – Exhibit 10.1 Servicing Agreement – Section 12.1.3 – pg. 58
“The purpose of any collection effort is to cure a Delinquency in the shortest possible time. The Servicer should treat each Delinquency individually. Discussions with the Borrower must cover the cause of such Delinquency and the time frame in which such Delinquency shall be cured. The Servicer should use notices, letters, telegrams, telephone calls, face-to-face contact and other responsible collection techniques consistent with Prudent Servicing Practices. The Servicer is required to maintain all collection records. The Servicer must vary its collection techniques to fit individual circumstances, avoiding a fixed collection pattern which may be ineffective in dealing with particular Borrowers. The Servicer should recognize the importance of telephone and face-to-face contact in any collection program. As part of its collection procedures, the Servicer shall closely monitor all newly originated Mortgage Loans.”

Servicer’s Discretion – Exhibit 10.1 Servicing Agreement – Section 12.3.2 – pg. 58
“The Servicer shall have reasonable discretion to extend appropriate relief to Borrowers who encounter hardship and who are cooperative and demonstrate proper regard for their obligations. However, no such relief shall be granted to any Borrower under a Mortgage Loan unless the Servicer reasonably believes that there is a reasonable expectation that such Borrower shall bring his Mortgage Loan current within a period conforming to acceptable servicing practices; provided that such period will not exceed 21 months from the Due Date of the earliest unpaid installment and will not result in a "significant modification" of the Mortgage Loan under the REMIC Provisions.”

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 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.”

Foreclosure/Alternative to Foreclosure Initiation  – Exhibit 10.1 Servicing Agreement –  Section 13.1.1 – pg. 60
“(a) When a Borrower reaches the 90th day of Delinquency and the Servicer has exhausted all reasonable means of curing the Delinquency, the Servicer shall either begin the foreclosure process or suggest an alternative to foreclosure in accordance with Prudent Servicing Practices.”

The original Mortgage document provided by HSBC is fraudulent and unlawful in Montana.

Without our knowledge or consent, Wells Fargo intentionally altered a Fannie Mae/Freddie Mac uniform instrument to defraud us at the closing table. This fraudulent Mortgage document falsely states the area of the property is 40 acres or less when the property is more than 200 acres, labels the Borrower as a Trustor instead of Mortgagor, references the power of sale provision in light of a Trustee’s sale, and is governed by the Montana Small Tract Financing Act. In essence, the Mortgage document presented by HSBC contains the language and provisions of a Deed of Trust which constitutes fraud. Per the Montana Small Tract Financing Act, this document cannot legally or possibly be used on an over 200 acre property. MCA § 71-1-302. Policy.

The Mortgage contract presented by HSBC is clearly one of adhesion that was crafted with the intent to deceive the Nickersons, or any other person who might have or ever seek to have interest in the Nickersons’ property into believing it to be a standard mortgage contract. This document utilizes a deed of trust instrument, Montana-Single Family-Fannie Mae/Freddie Mac UNIFORM INSTRUMENT Form 3027 (a standardized form as evidenced by the footer at the bottom of the page, whose contents are not supposed to be altered without authorized permission by Freddie Mac). It is a standard form, fraudulently, intentionally and deceptively altered, to be titled a “MORTGAGE”. Yet, this contract contains deed of trust language which significantly diminishes the rights and power of a mortgage, while circumventing the critically different laws, codes and regulations that a mortgage has and is subject to. (This is true not only in Montana, but on a National scale.) Further, a mortgage/deed of trust combination is neither a mortgage, a deed of trust, nor would this contract even qualify as a deed of trust indenture, thereby making this document null, void, unlawful, adhesive and unconscionable.

HSBC has not established there is a debt owed to them, or anyone else for that matter. According to fact and law, the trap they set to defraud us has caught them and caused them to lose any and all rights to act.
The book of Psalms offers suggestions of natural consequences for evil doers such as these: Let their table become a snare before them: and that which should have been for their welfare, let it become a trap...Let destruction come upon him at unawares; and let his net that he hath hid catch himself: into that very destruction let him fall. He made a pit, and digged it, and is fallen into the ditch which he made. His mischief shall return upon his own head, and his violent dealing shall come down upon his own plate. Psalms 69:22; 35:8

And in Proverbs 7:15 -16, the evil doer is warned, Whoso diggeth a pit shall fall therein: and he that rolleth a stone, it will return upon him.


The following box illustrates important differences between a mortgage and a deed of trust. Sadly, the Courts are rendering our protection and rights under the law null and void. The laws and rights speak for themselves. Judicial prudence requires Courts to uphold and enforce the laws and ensure equal access to justice. To do otherwise exceeds the jurisdiction and authority of the Court and constitutes judicial tyranny. God help the USA!


Mortgage

Deed of Trust

·         There are two parties in a mortgage. The lender is called the mortgagee, and the borrower is called the mortgagor.

·         There are three parties in a Deed of Trust. The lender is called the beneficiary, the borrower is called the trustor, and the third party is called the trustee, whose main purpose is to sell the property in case of a default.

·         A mortgage requires a lender to foreclose through the judicial process. It requires the lender to sue the borrower and prove there is a debt, they own it, and that the borrower defaulted. The borrower has the right to defend themselves against false claims and present their own claims against the lender. This arrangement places the burden of proof on the lender.

·         A deed of trust foreclosure does not have to go to court. The lender simply has to claim the borrower defaulted, and instruct the trustee to sell the property at public auction. The borrower’s only recourse is to file a lawsuit against the lender, which places the burden of proof on the borrower. This allows a corrupt lender to take advantage of a struggling borrower who cannot afford to go to court. This arrangement denies due process and the right to defend themselves for most borrowers.

·         A mortgage provides greater judicial protection for the borrower.

·         A deed of trust generally removes judicial protection from the borrower and gives the lender the ability to foreclose or force other actions (deed in lieu of Foreclosure, short sale, etc.) with minimal or no judicial protection or oversight.

·         A mortgage can be placed on any size of property.

·         A deed of trust can have an acreage limitation (40 acres in Idaho and Montana).

·         Mortgages are designed to protect borrower investments and livelihoods while providing an avenue to the lender to recover their investment if the borrower refuses to pay.

·         Deed of trusts were designed to allow lenders to loan money on smaller pieces of property and give them a greater security for their money by allowing them to circumvent the judicial system.

·         The mortgage is a document given to the lender that creates a lien on the property. The borrower holds the title to the property, and the lender holds a lien against it.

·         With a deed of trust, the trustee holds the title to your property until you pay off the loan. When you pay off the loan, the lender tells the trustee to give you the title. In essence, you (the borrower) are just a renter until you have paid off the loan. In many situations, a renter actually has more rights than a borrower with a deed of trust.

·         The Nickersons agreed to a mortgage on their on their over 200 acre Montana ranch and were assured that is what they were signing and had received.

·         Wells Fargo used a Deed of Trust form and changed the title to Mortgage to deceive the Nickersons. They also deleted the paragraph defining who the trustee is, and fraudulently stated the property is not more than 40 acres.



We made repeated requests for proof of authority from opposing counsel.

REQUESTS FOR PROOF OF AUTHORITY

Reply Brief in Support of Defendant’s Motion for Summary Judgment – p. 10, L. 3-21. 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. (emphasis added)

Amended Answer, Counterclaim and Demand for Jury Trial – p.12, L. 4-5. The Nickersons request the Court require Proof of Authority that HSBC has now retained Erika R. Peterman of RCO Legal, P.S


Affidavit of Nick Nickerson in Support of Objection to Orders – ¶¶29-32 29. HSBC has denied in writing any involvement with the foreclosure on my property. 30. Wells Fargo has denied any involvement with the foreclosure on my property on numerous occasions and in the presence of numerous parties. 31. According to HSBC and their trust agreements, the servicer is responsible for foreclosure. Form 8-K Exhibit 10.1 Servicing Agreement “13.1.1. Foreclosure/Alternative to Foreclosure Initiation. …the Servicer shall either begin the foreclosure process or suggest an alternative to foreclosure…” 32. The only entity that has claimed HSBC is foreclosing on my property is Erika Peterman of RCO Legal, a Washington based law firm.

Transcript – p. 37:12-13 and p.38:5-13. [Mrs. Nickerson] We would like to request proof of authority…We had gone to the Montana commissioner of banking, and HSBC has denied any involvement with the foreclosure. They tell us Wells Fargo is foreclosing. Then, she has just stated, Wells Fargo has nothing to do with this, that they are just the servicer. When we contact Wells Fargo, they tell us they are not foreclosing. The only human we know on planet earth that is foreclosing is sitting in this courtroom.

Brief in Support of Motion for New Trial, and Motion to Amend Findings of Fact, Conclusions of Law and Judgment. – p. 2 L. 21 – pg. 3 L. 1. During oral argument the Nickersons requested proof of authority but none was provided. The Nickersons requested this proof previously and are requesting it again. Without proof of authority, the Complaint is illegitimate and so are any rulings. 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.”

Reply Brief in Support of Motion for New Trial, and Motion to Amend Findings of Fact, Conclusions of Law and Judgment. – p. 2, L. 12-14. HSBC is not even willing to provide proof that Ms. Peterman of RCO Legal is legally representing them in this matter.

Motion to Provide Proof of Authority filed February 19, 2015, and subsequent reply brief in support of this motion filed March 26, 2015. This motion was ignored by the Court.

Response in Opposition to Plaintiff’s Motion for Entry of Final Judgment, Decree of Foreclosure and Order of Sale of Real Property – p. 2, L. 30 – p. 3, L. 8. Erika Peterman, whether of Peterman Law or RCO Legal, has not provided proof of authority from HSBC despite motions and numerous requests. Until Ms. Peterman provides proof that she is truly working for HSBC, it is unlawful and unjust for this action to proceed. MCA § 37-61-402.

The court may, on motion of either party made in good faith and upon a showing supported by affidavit or otherwise, require the attorney of the adverse party to produce and prove the authority under which he appears and, if it be shown that the attorney has no such authority, dismiss the action. In re Astibia's Estate, 100 M 224, 46 P2d 712 (1935); Missoula Belt Line Ry. v. Smith, 58 M 432, 193 P 529 (1920).

Therefore, before any final judgment, decree of foreclosure or order of sale is issued the Nickersons submit proof of authority must be provided.

Brief in Support of Motion for Extension of Time to Complete Discovery – p. 2, L. 24-28. At the District Court level, HSBC has systematically blocked all discovery attempts. HSBC’s alleged counsel Erika Peterman refused to provide proof she is acting on HSBC’s behalf so we could require HSBC to acknowledge involvement in this action, Montana oversight agencies could gain the jurisdiction to assist us, and HSBC could be required to cooperate in the discovery process.

A Motion to Provide Proof of Authority was filed with the Montana Supreme Court, October 13, 2017. 

Opposing counsel failed to respond to our requests for proof of authority. HSBC never notified us of their alleged New Creditor status. Wells Fargo claimed in 2012 to still be the owner and holder of the Note and Mortgage. Evidence of fraud is everywhere!

The Supreme Court denied our Motion to Provide Proof of Authority on October 31, 2017. This judgment granted HSBC Bank the right to foreclose on our property without ever providing any evidence of ownership, default, or even involvement in the foreclosure. Inconceivable! No home in Montana is secure!!

Wells Fargo and HSBC have held our account records, notations, employee testimonies, and all other account documentation hostage.
Wells Fargo has refused to provide account records and notations that corroborate our claims they prevented our performance. We begged for account records, notations and taped conversations to be released. HSBC and Wells Fargo ignored our requests. We filed a subpoena directing Wells Fargo to produce relevant documents and witnesses. Wells Fargo ignored the subpoena. HSBC filed a motion to quash on the day of the deadline. Instead of sanctioning Wells Fargo and HSBC for non-compliance, the Court quashed our subpoena.

FRAUD ALERT! If there is ANY truth to HSBC or Wells Fargo's claims of default, why would Wells Fargo withhold this information? Wells Fargo should produce the evidence and testimony and let the truth speak for itself!!

We provided affidavit testimony.
We repeatedly requested the Court allow us to provide testimony from witnesses disclosed in our Witness List. Since Wells Fargo was holding our records hostage, this testimony was critical to our case. The Court denied us opportunity for our witnesses with firsthand knowledge to provide testimony, so we submitted affidavits. The Court ignored their affidavits. His opinion claimed we were just repeating the same story. There is ONLY one story for us to tell...THE TRUTH!

Affidavits of Amanda Nickerson, Chad Nickerson, Stephanie Nickerson, Kristina Wright, Jeannie Smith, Heather Hummel

The truth is Wells Fargo and HSBC are stealing the substantial equity we have built up in our property without cause or right. This foreclosure action is a theft and fraud issue, not a homeowner money issue. Our property is not upside down and we have not abandoned it. In fact, our 224+ acre property is comprised of three parcels. Any of the three parcels satisfies the entire judgment amount. Investors who have been to our property have communicated this attack is because someone is wanting to develop the Montana property because of its location, beauty and marketability. We have been told by former federal agents the Helena Wells Fargo is known for unlawfully seizing property for development. Wells Fargo employees have also told us Wells Fargo has to foreclose on our property because it is the only way to hide their criminal acts committed with regards to our loan.

We have done nothing wrong. We did not default. We have made heroic attempts to save this property from foreclosure.

This is our home. We want to keep it. We have and have always had the wherewithal to keep it. We have and will continue to fight to keep it.

Pray!

More documentation and evidence will be added to this section as time and opportunity allow. We provided every Montana Senator and Representative with a packet of our story and directed them to this website. 143 of the 150 packets were presented to these Montana legislators in person. Click below to read the packet...





If the American people ever allow private banks to control the issue
of currency, first by inflation, then by deflation, the banks and
corporations that will grow up around them will deprive the people
of all property until their children wake up homeless on the
continent their fathers conquered. I believe that banking institutions
are more dangerous to our liberties than standing armies.
                                                                                               Thomas Jefferson




Mortgage Terrorism Enslaves Montana Citizens
Is there not one among you who will stand up to the giants in our land?

Two of the world's largest giant banks attack one family, the Nick and Donna Nickerson Family, in Montana. All laws are in place to protect us, but no individual or entity with authority in Montana is willing to stand up to the banksters, to uphold or enforce the laws already in place, or to stop the banksters from terrorizing our family. The facts speak for themselves. Laws have been broken and the banksters are being allowed to unlawfully seize what does not belong to them. Justice is the guardian of liberty. Without justice, our liberties will be stripped from us, all of us, one freedom at a time. Religious freedoms. Due process. Property rights. The right to be heard. Protection from unlawful seizure. Security in our persons and property. We the Nickerson Family are being deprived of life, liberty and property without due process of law in violation of the United States and Montana Constitutions.

We are calling on America to stand in the gap and help us fight this injustice. It happened to us, and if we, the people, do not stand up, it will happen to you. We are standing. Will you stand with us? Benjamin Franklin once said, Justice will not be served until those who are unaffected are as outraged as those who are.




Freedom is never more than one generation away from extinction. We didn't pass it on to our children in the bloodstream. The only way they can inherit the freedom we have known is if we fight for it, protect it, defend it, and then hand it to them with the well fought lessons of how they in their lifetime must do the same. And if you and I don't do this, then you and I may well spend our sunset years telling our children and our children's children what it once was like in America when men were free.

                                                                     1961 Ronald Reagan 40th President of the United States




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