NO Eminent Domain NO Title Conveyed RENT $62,500 /mo 8 yrs DW
August 30, 2021
From Haywood Jackson Mizell October 29, 2019
To: Delores Woodham,Circuit Court Clerk,Dale County, Alabama
RE: Authenticated Instrument filed by Wells Fargo in Dale Circuit Court: CV-19-8.
Dear Delores Woodham,
Your correspondence was received October 25, 2019.
“Mr. Mizell: Enclosed please find a copy of Wells Fargo Loan/Mortgage # 0128507779. We cannot certify that this is a true copy of the original because the original was not filed in the clerk’s office.”
Please understand that Wells Fargo has provided numerous copies of the same documents all in an effort to convince me that a copy functions the same as the original.
Rule 1002. Requirement of the Original
An original writing, recording, or photograph is required in order to prove its content…
To convince me was not the one who needed convincing, the 2008 buyer who determined that Wells Fargo had “clouded” the title by filing a false instrument saying Wells Fargo was the holder in due course while WF reported otherwise. Mostly, only WF’s lawyers expressed a lack of understanding. (Job 32:8, Psalms 32:9)
§ 7-3-305. Defenses and Claims in Recoupment.
§7-3-305c An obligor is not obliged to pay the instrument if the person seeking enforcement of the instrument does not have rights of a holder in due course and the obligor proves that the instrument is a lost or stolen instrument.
No sale would be made without the “cloud” being removed. No Homeland Security report was made. The buyer has not changed his position, refusing to buy an unmarketable property having zero value.
Mizell was denied hundreds of thousands of dollars and the City of Ozark was denied the tax revenue that an extensively developed tourist attraction would produce.
Just for the refreshment of it, below are just a few of the hundreds of conclusions that were mined, resulting from years of digging. The criminal phase can now begin, complete with perfected discovery.
WELLS FARGO BANK, N.A.’S LACK OF STANDING
NO ONE CAN BE DEPRIVED OF HIS PROPERTY WITHOUT DUE PROCESS.
Due process commences first with a determination of standing of the parties. Wells Fargo is absent any instrument that gives standing. So-called government officials who allow standing to be gained without merit are co-conspirators to theft.
A judge must be acting within his jurisdiction as to subject matter and person, to be entitled to immunity from civil action for his acts. Davis v. Burris, 51 Ariz. 220, 75 P.2d 689 (1938).
When a judicial officer acts entirely without jurisdiction or without compliance with jurisdiction requisites he may be held civilly liable for abuse of process even though his act involved a decision made in good faith, that he had jurisdiction. Little v. U.S. Fidelity& Guaranty Co., 217 Miss. 576, 64 So. 2d 697
"We (judges) have no more right to decline the exercise of jurisdiction, which is given, than to usurp that which is not given. The one or the other would-be treason to the Constitution." Cohen v. Virginia, (1821), 6 Wheat. 264 and U.S. v. Will, 499 U.S. 200
NOTE: By law, a judge is a state officer. The judge then acts not as a judge, but as a private individual (in his person). When a judge acts as a trespasser of the law, when a judge does not follow the law, the Judge loses subject-matter jurisdiction and the judges' orders are not voidable, but VOID, and of no legal force or effect. The U.S. Supreme Court stated that "when a state officer acts under a state law in a manner violative of the Federal Constitution, he comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States."
WELLS FARGO BANK, N.A. is a federal bank with its principal place of business in California. It has said to have been the loan servicer on the Subject Property for several years. A servicer cannot foreclose in its own name.
Wells refused Mizell his prepayment rights as outlined in the said agreement, agreement that does not appear. In 2008, agreement was made to sell the subject property. The sales agreement was sealed with earnest money. The contract to sale was tortuously interrupted by Wells, which had imposed a “cloud” over the title making the property value zero. Wells refused to accept full payment from the sale of the property. Wells could produce NO evidence of debt even for review, without which no legal conveyance could be made after full payment. Wells refused to surrender the debt instrument that was to be stamped paid when paid in full. Wells refusal to present the debt instrument for inspection, placed a “cloud” by Wells over the title, which made the property value zero, unmarketable even for a public use purchase by eminent domain.
Later in 2012, James B. Graham deposited legal tender in an amount twice Wells’ stated debt as outstanding by Mizell. Had Wells been able to surrender the debt instrument, legal tender from the Graham deposit could be used to satisfy the debt. No permission was granted Wells for the seizure of the deposit. The debt instrument, when paid in full, had to be surrendered. Wells refused to accept the prepayment of Graham funds unless the surrender condition was eliminated.
Wells had, on numerous occasions, tortuously interfered with the contracts that recognized the value of the property, a value only when the property was without the title “cloud” imposed by Wells. Again, prepayment was refused by Wells, forestalling the sale. After having refused prepayment, Wells can never declare the note in default and use the word default as grounds for the authority in a foreclosure enforcement. Instead, Wells made default the operative word in the wrongful non-judicial foreclosure, which was paraded as a state action.
“Please send the unaltered genuine original promissory note to Wells Fargo Ozark Alabama Branch. After authentication a certified amount can be determined that will, when payment is made in full, require you to surrender the instrument.”
Please mail also the documents you filed with Homeland Security identifying the source of funds involving Loan Number 708-0128507779. With this information I can be assured that the source of funds will be satisfied. Please answer the request as required by law.” From Letter to Wells Fargo sent certified by ALICE FAYE MIZELL dated January 9, 2012.
American Jurisprudence 2d § 618. Liability for wrongful repossession
Furthermore, it has been said that where the creditor improperly refuses to accept payment of the debt, the creditor is estopped from repossessing the collateral on the basis that the debtor is in default, a conversion action is especially appropriate where wrongful repossession is at issue. (See Chesterton State Bank v Coffey (Ind App) 454 NE2d 1233.)
Snipers, as believed by William Berry, foreclosure attorney for WF who provided confirmation in the writing by letter, were placed on the courthouse roof on the day of the auction so as to prevent Mizell or any independent bidder from participating in the wrongful foreclosure auction.
Days before the auction, Mizell hand-delivered a Misprision of Felony to Judge William H. Filmore’s office to inform a judge, as the law demands, of the impending theft. The Misprision of Felony written notice was ignored. The theft nevertheless occurred as scheduled. Mizell’s expectation was for the judge to demand of Wells to show evidence of debt enforcement if authorized and the auction not criminal. Wells conducted the auction in the manner consistent with acts of any criminal enterprise. Prepayment refusal, the possession of NO instrument of authority, and the denial of due process combined to define the operational enterprise. The “cloud” must be removed before the purchase with title could be completed. Wells refused the to show any evidence that could be authenticated or a notarized certified copy under the penalty of perjury. There has been no production of debt encumbrance instrument secured by the subject property, even now after more than five years. Property conveyance is now legal by the deed holder. The property was wrongfully taken without due process in violation of DUE PROCESS RIGHTS and its taking has severe consequences for the thief, including treble damages.
Wells denied due process, proceeded with a simulated non-judicial foreclosure in the presence of law-enforcement. Law enforcement Deputies and Police Officers were posted to control the number of bidders present at the auction held on the Dale County Courthouse steps. The non-judicial foreclosure auction should not have proceeded since the presence of law enforcement made the auction a state judicial action that requires a Judge’s order. Due process rights were denied.
Since Wells Fargo has been unable to present the debt instrument during the past five years, its authority to enforce it has expired. Wells Fargo violated Ala. Code § 7-3-501 and therefore is time barred from ever gaining standing in this note case.
Ala. Code § 7-3-501(b)(2). PRESENTMENT.
§7-3-501(b)(2) Surrender the instrument if full payment is made.
Wells Fargo has not demonstrated that it is the holder in due course of Mizell’s Promissory Note or that it is the agent of the holder in due course that alone can foreclose.
Mizell moved the courts of Dale County CV-2013-6, USMD CASE #: 1:14-CV-00013-WHA-CSS and Dale County CV-2019-8, which we now know in this case to be null and void courts, proceeding without standing and subject matter jurisdiction, to have Wells Fargo stipulate and admit on and for the record whether or not they are the creditor and whether or not they are the holder in due course or if they contend that they are acting on authority of the Holder in Due Course with the authority to enforce any clause on Mizell’s DOT or Promissory Note. The courts ruled then without having been granted subject matter jurisdiction, as now confirmed, deceived into relying on unsworn and unverified statements of WF’s attorneys rather than on absent competent evidence. See Title 18 § 1512 withholding evidence or availability for use in an official proceeding.
Alabama Code Title 35. Property § 35-10-1
Where a power to sell lands is given to the grantee in any mortgage, or other conveyance intended to secure the payment of money, the power is part of the security, and may be executed by any person, or the personal representative of any person who, by assignment or otherwise, becomes entitled to the money thus secured; and a conveyance of the lands sold under such power of sale to the purchaser at the sale, executed by the mortgagee, any assignee or other person entitled to the money thus secured, his agent or attorney, or the auctioneer making the sale, vests the legal title thereto in such purchaser. Probate judges shall index foreclosure deeds by the names of the original grantor and grantee in the mortgage, and also by the names of the grantor and grantee in the foreclosure deeds.
Alabama Code Title 35. Property § 35-10-9
All sales of real estate, made under powers contained in mortgages or deeds of trust contrary to the provisions of this article, shall be null and void, notwithstanding any agreement or stipulation to the contrary.
Wells Fargo refused to admit as to whether they are or are not the creditor and/or the holder in due course. Wells Fargo should have been considered in contempt of ill- advised court.
There is no evidence that Wells Fargo has been damaged.
There is no possession evidence of the existence or the identity of a true holder in due course. Wells Fargo demonstrated NO authority for its actions.
The wrong party is named as the lender on the alleged note and the alleged deed of trust/mortgage recorded in the Dale County Probate Office records further clouding title to Mizell’s property.
The alleged note has allegedly been transferred to FHLMC per affidavit of VP of loan department.
FHLMC has allegedly deposited said note in a securitization trust.
By transferring ownership and holding of the mortgage promissory note to certificate holders of a publicly traded security, the transfer negated the ability of the alleged lender, trustee or servicing agent to act as the owner or holder of the promissory note or its agent.
A DOT/Mortgage cannot be enforced on behalf of the owner and holder of a Promissory Note who does not actually own or possess the Promissory Note.
There is a difference between what is required to enforce an unsecured note and what is required to enforce a deed of trust/mortgage in foreclosure.
The alleged note and deed of trust have been separated. The Note has been sold to FHLMC and subsequently to investors in Mortgage-Backed Securities and is therefore owned by shareholders in stocks. The alleged Deed of Trust that identifies Wells Fargo Home Mortgage, Inc. as the “lender”/ “beneficiary”/ “owner”. This is fraudulent and a cloud on Mizell’s Legal Title. Reducing the value to zero.
The promissory note as a note remains enforceable if it has not been paid, but the deed of trust is not. The note is no longer secured by Mizell’s Property.
Wherefore, Mizell sought an order from the court declaring that Wells Fargo lacks standing to enforce any provision on the Mizell’s DOT/Mortgage or to foreclose on the Mizell’s real Homestead property and place of business. DENIED.
Severe and irreparable harm through the loss of clients, the loss of reputation, the loss of income, emotional distress and family depression and anxiety has been suffered by the Mizell’s and their family, should the loss be allowed to continue of their Homestead and place of business, which is not only the basis for their claims against Wells Fargo, but is also unique and irreplaceable.
All previous court actions that proceeded without standing and subject matter jurisdiction are VOID.
A Quiet Title Action should be conducted in a court of competent jurisdiction, which applies the law in response to the fact-witness instruments with a hearing where only the validity of the instruments can be challenged. A jury is not allowed because the superior fact-witness cannot be tampered with and is evident and needs no jury to determine fact.
Title 18 §1512(B) Whosoever, alter, destroy, mutilate, or conceal an object with intent to impair the object's integrity or availability for use in an official proceeding;
AMERICAN BAR ASSOCIATION
The American Bar Association's opinion concerning foreclosures: Standing and subject-matter-jurisdiction.…… this Court has the responsibility to assure itself that the foreclosure Plaintiffs have standing and that subject-matter-jurisdiction requirements are met at the time the complaint is filed. Even without the concerns raised by the documents the Plaintiffs have filed, there is reason to question the existence of standing and the jurisdictional amount".
American Jurisprudence 2d 1966:
(Volume 25, Ejectment § 19 Strength of own title)
"A well-established principle which has acquired the force of a maxim is to the effect that a Plaintiff in ejectment can recover only on the strength of his own title, and not on the weakness of his adversary's. The defendant is not required to show title in himself, and he may lawfully say to the Plaintiff, "Until you show title, you have no right to disturb me."
Mizell possesses the only instrument that can impact title. Ownership remains in him until a superior title appears; otherwise cease disturbing me.
Yours truly, Haywood Jackson Mizell, Case 1:21-cv-00110-ECM-JTA Document 22-5 Page 635-642
