standing fast for liberty. Gal. 5:1
For help and support, call us at (334) 239-8987 or click here to email us.

Words from the Rising Republics

Waiting until ONE BILLION DOLLARS

 

Haywood Jackson Mizell                                                               January 03, 2019

4518 Woodledge Drive      

Montgomery, AL 36109                       Certified Mail 7018 3090 0001 9985 3564

                                                             Return Receipt 9590 9402 4949 9063 7991 48

                                        

Wells Fargo Home Mortgage

Return Mail Operations

P.O. Box 10368

Des Moines, IA 50306·0368

ATTN: Amy Wachter

Senior Vice President

Customer Care and Recovery Group

 

Subject: Acknowledgment your typical letter addressed to Alice Faye Mizell and signed by Amy Wachter of December 26, 2019, Account 708·0128507779. The identity information regarding the Mortgage Banker Bond, policy number and claim department, were not mentioned. Mentioned was request for purchase of additional time. The outstanding obligation and agreed to amount for WF purchase of time: Total due as of January 01, 2020---$605,220,224.12

 

Dear Amy Wachter,

 

This letter is to response to your letter dated 12/26/2019. The above referenced contract was secured by both parties, the borrower secured the promise to pay with real estate that was wrongfully foreclosed upon and Wells Fargo secured their lawful conduct as lender with a Mortgage Banker Bond to be filed in the records of the Dale County Alabama Probate Office. WF’s failure to file the Mortgage Banker Bond into the record is one of WF’s defaults. WF has elected unlimited exposure and purchase of time until such time research has located the bond for execution. Such location determination could limit WF’s exposure, provided the bond is located, which establishes lawful limits to WF’s defaults that are illegal.

 

Needless to say, the time purchase amount is valid only as compensation for a default and is established by consent of both parties. Consent has been granted after proper notification and has been agreed to by a 30-day response silence identified and connected to each written request as clarified by each request for additional time. The current monthly time extension request is approximately $3.6 million as agreed to, and similar to late payment fees.

 

The borrower, and neither can the lender, lawfully exact collection of the security instrument without, judicial or consensual non-judicial, review. It is always best to let law enforcement lawfully make the collection, all without disturbance of the peace.

As borrower, the monthly additional fee amount is such that it is unwise to dishonor time extension requests short of reaching $1 billion. On the other hand, the borrower cannot prevent the lender’s default curative efforts in curtailing lender’s exposure.

 

WF’s Mortgage Banker Bond default existed from the beginning and continues even today, and without dispute or dissent as to its default liability.

 

Your truly,

 

 

 

Signed for Alice Faye Mizell by her husband Haywood Jackson Mizell

 

Enclosed copy of your letter dated 12/26/2019.

"the purpose of the law is to prevent injustice from reigning"

 

Haywood Jackson Mizell                                                 December 20, 2019

4518 Woodledge Drive      

Montgomery, AL 36109                       Certified Mail 7018 3090 0001 9985 3557

                                                             Return Receipt 9590 9402 4949 9063 7991 31

                                        

Wells Fargo Home Mortgage

P.O. Box 10335

Des Moines, IA 50306·0335

ATTN: Joshua Naber

Executive Resolution Specialist

Customer Care and Recovery Group

 

Subject: Acknowledgment your letter of December 17, 2019, Account 708·0128507779. The identity information regarding the Mortgage Banker Bond, policy number and claim department, were not mentioned. Mentioned was the attempt to insult and mislead by declaring WF to not be the holder-in-due-course, instead claiming to be simply “note holder”. Additional time requested to respond at later date. The outstanding obligation and agreed to amount for WF purchase of time: Total due as of December 01, 2019---$601,585,645.08

 

Dear Joshua Naber,

    

     The attempt to insult my intelligence is not appreciated. My decades long request has been for the identity of the holder-in-due-course, which alone can be paid in full. We agree that WF is the SERVICER that cannot foreclose in its own name. Also, we accept WF’s continuing report that it is not the holder-in-due-course, but instead a “CRIMINAL ENTERPRISE” thief. Why parade non-disclosure?

 

“A jury could find it strange that those who insist that their conduct was proper and the intent pure went to such great lengths to hide it all from the light of day. From such secrecy much may be inferred.” Cox v. Adm”r U.S. Steel & Carnegie, 17 F.3d 1386, 1402 (11th Cir. 1994).

  

     Baker and Donaldson has been, by affidavit, declared to possess the collateral file. WF does not disburse original documents, just electronic copies only.

 

     All spurious and electronic-computer-generated documents are worthless when compared to the ORIGINAL PROMISSORY NOTE, which WF’s obligation to surrender the original stamped paid-in-full has not been met. No state or federal law can exempt WF from this, to date, unmet obligation. See FRCP 1002. Null and void means nothing as pretended by WF.

 

    

     Allow me to refresh your awareness:

    

     Alabama State law declares the wrongful foreclosure auction null and void because Wells Faro Bank, N. A. was not the holder-in-due course of the Note. Freddie Mac was the lender as reported to the IRS. Wells Fargo foreclosed wrongfully in its own name even though not entitled to the funds generated by the auction contrary to §35-10-1.

 

Section 35-10-9 Sales contrary to article null and void.

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.

 

     No debt instrument has been surrendered for authentication, which can be replaced by a court judgment.

 

Moreover, in the case of original mortgages and promissory notes, they are not merely exhibits but instruments which must be surrendered prior to the issuance of a judgment. The judgment takes the place of the promissory note. Surrendering the note is essential so that it cannot thereafter be negotiated. See Perry v. Fairbanks Capital Corp., 888 So.2d 725, 726 (Fla. 5th DCA 2004). The judgment cancels the note. The clerk cannot return these instruments to the parties. Johnston v. Hudlett, 32 So. 3d 700 (Fla 4d DCA 2010)

 

Servedio v. US Bank N.A (4D10-1898)

The summary judgment order should be reversed because the lender did not file “a copy of the original note and mortgage prior to the entry of judgment the original mortgage note with the trial court.” Even if the trial court considered the note and mortgage at the hearing, the documents were not authenticated, filed, and served more than twenty days before the hearing as required byRules1.510(c), 1.510(e) and Appellee’s failure to abide by these rules also necessitates reversing the order granting summary judgment. Verizzo, 28 So. 3d at 977-78; Mack v. Commercial Indus. Park, Inc., 541 So. 2d 800 (Fla. 4th DCA 1989).

 

     The Dale County Circuit Clerk stated that no original has ever been filed by WF. All court actions are null and void. (See enclosed Clerk’s declaration.)

 

§13A-9-12 (3) (3)

     Knowing he lacks the authority to retain a governmental record he refuses to deliver up the record in his possession upon proper request of a person lawfully entitled to receive such record for examination or other purposes. (See Title 18 §1512 for 20-year exposure.)

 

     It might be helpful to revisit another similar WF case and its outcome that opens an argument for equal justice under the law.

 

“No title is conveyed through the sale when a party who lacks a right to enforce the note proceeds with foreclosure sale.” Williams, supra. Cited in Holms v. Wells Fargo Home Mortgage, Inc. et al, 43rd Jud. Cir. Ct. Div II, No. 08CN-CV00944 (Jan. 26, 2015).

 

     More Alabama law:

“Alabama law specifically contemplates that there can be a separation. See § 35–10–12 and Harton [v. Little, 176 Ala. 267, 57 So. 851 (1911)]. The Restatement (Third) of Property: Mortgages takes the position that a note and mortgage can be separated but that ‘[t]he mortgage becomes useless in the hands of one who does not also hold the obligation because only the holder of the obligation can foreclose.’ Restatement (Third) of Property: Mortgages § 5.4, Reporter's Note—Introduction, cmt. a at 386. The Restatement explains: “‘The note is the cow and the mortgage the tail. The cow can survive without a tail, but the tail cannot survive without the cow.’ Id. at 387 (quoting Best Fertilizers of Arizona, Inc. v. Burns, 117 Ariz. 178, 179, 571 P.2d 675, 676 (Ct.App.), reversed on other grounds, 116 Ariz. 492, 570 P.2d 179 (1977)).” Court of Civil Appeals of Alabama. Diane GRAY v. FEDERAL NATIONAL MORTGAGE ASSOCIATION. 2120087. Decided: January 10, 2014 (Emphasis added)

 

While Bank of America alleged in its unverified complaint that it was the holder of the note and mortgage, the copy of the note attached to the amended complaint contradicts that allegation. When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. Khan v. Bank of America (Fla: Dist. Court of Appeals, 5th Dist. 2011) (See 1099A report to IRS that WF was not the lender)

 

     Larger print can sometimes be helpful to understanding. WF seems to have never heard of the infallible truth recorded in Job 32:8.

 

     Quitting from being a deadbeat is an admirable quality for any morale entity.

 

     2 Samuel 10:12 encourages us to Be of good courage, and let us play the men for our people, and for the cities of our God; and the Lord do that seemeth him good.

 

Yours truly,

 

 

Haywood Jackson Mizell

334-498-4187

 

Enclosed: Your letter dated December 17, 2019

                 Statement of NO original from Clerk

                 1099A identifying actual lender

               WITHOUT RECOURSE transfer to real possessor of note

             Offer to pay in full in full written to Carle Murray

           James B. Graham’s offer to provide full payment that was

                   IMPROPERLY REFUSED.

 

FRAUDULENT CONVEYANCE:

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.) (See (MISC Book 282, pages 295 and 296).

 

COPY

 

December 17; 2019                                              

 

Haywood Jackson Mizell 4518 Woodledge Drive

Montgomery, AL 36109

 

Subject: Information about account number 0128507779 for Alice F. Mizell Dear Haywood Jackson Mizell:

Thank you for the opportunity to address your request. We want you to know we're here to help. We're responding and want to make sure you have the information you need.

Note holder information

We're the servicer and assignee for the account. You may contact us at: Wells Fargo Home Mortgage

POBox10335

Des Moines, IA 50306

Phone number: 1-800-853-8516

We will respond to your additional requests at a later date.

Going forward

 

We value your feedback and appreciate the time and effort you took to contact us. It's been my goal to fully address the request you've brought to our attention.

 

If you have any questions, I'm here to help. You may reach me at 1-800-853-8516, extension 1335621039. I am available to assist you Monday through Friday, 8:00 a.m. to 5:00 p.m. Central Time. If you require immediate assistance and I am unavailable, other representatives are available to assist you at 1-800-853-8516, Monday through Friday, 7:00 a.m. to 7:00 p.m.

Central Time.

 

Sincerely,

-"2

Joshua Naber

Executive Resolution Specialist Customer Care and Recovery Group

 

CC:      Alice F. Mizell

4518 Woodledge Dr

Montgomery, AL 36109

 

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.

 

                                                                                                                   DALE COUNTY CIRCUIT CLERK

                                                                                                                              P.O. BOX 1350

                                                                                                                  OZARK, ALABAMA 36361

                                                                                                                      TELEPHONE: 334-774-5003

 

NOTE: Received by mail

             October 25, 2019

1099-A

DATED 1/21/2014

 

WELLS FARGO BANK, N.A.’s REPORT

TO IRS IDENTITY OF ACTUAL LENDER’S

NAME, ADDRESS AND TELEPHONE NUMBER

 

LENDER WHO HAS NOT FORECLOSED AS HOLDER IN DUE COURSE:

                            

                             FHLMC

                             8609 WESTWOOD CENTER DRIVE

                             PO BOX 5003

                             VIENNA, VA 22108

 

WITHHELD LENDERS FEDERAL IDENTIFICATION NUMBER: 52-0904874

 

PREVIOUSLY IDENTIFIED AS INVESTOR CLIENT 708

CUSIP NUMBER: 0128507779

 

WELLS FARGO HOME MORTGAGE, INC.’s

Transfer of note without recorded assignment,

sometime before 2009. No longer with enforcement rights of a holder in due course.

 

STAMPED AND SIGNED AS BELOW:

 

WITHOUT RECOURSE

PAY TO THE ORDER OF

 

 

WELLS FARGO HOME MORTGAGE, INC.

 

BY: ____________ See signature _____________

       Heather Partin, Assistant Secretary

 

Sign Original Only!

 

 

  1. 1.OFFER OF FULL PAYMENT BY ALICE FAYE MIZELL DATED JANUARY 9, 2012, SERVED BY CERTIFIED MAIL WAS IMPROPERLY REFUSED. THE SURRENDER OF AUTHENTICATED NOTE AFTER HAVING BEEN PAID IN FULL WAS IGNORED.

 

  1. 2.NOTARIZED AFFIDAVIT OF REFINANCE COMMITMENT BY JAMES B. GRAHAM DATED SEPTEMBER 3, 2013.

 

  1. 3.AFFIDAVIT BY CHARLES EUGENE RUTLEDGE DATED SEPTEMBER 3, 2013 CONFIRMING PRESENCE OF LAW ENFORCEMENT AT AUCTION CONDUCTED FEBRUARY 19, 2013 ON BEHALF OF WELLS FARGO NOT FHLMC.

 

NOTE:

Letter dated March 23, 2017 signed by William G. Berry, Foreclosing Attorney at Morris-Hardwick-Schneider stated:

 

“snipers were placed on the roof of the courthouse.” “My managing partner at the time, Barry King, cried the sale on behalf of Wells Fargo.”

Frederic Bastiat in 1850 made this observation in The Law.

“the purpose of the law is to prevent injustice from reigning.”

 

“When plunder becomes a way of life

For a group of men,

They create for themselves

In the course of time

A legal system that authorizes it

And a moral code that glorifies it.”

 

“It can fairly be said that

The chain of catastrophic bets

Made over the past decade

By a few hundred bankers

May well turn out to be the

Greatest non-violent crime

Against humanity in history”

Mr. Potter, Vanity Fair Magazine

 

“When a portion of wealth passes out of the hands of him who has acquired it, without his consent, and without compensation, to him who has not created it, whether by force or by artifice, I say that property is violated, that plunder is perpetrated. I say that this is exactly what the law ought to repress always and everywhere. If the law itself performs the action it ought to repress, I say that plunder is still perpetrated, and even, in a social point of view, under aggravated circumstances. In this case however, he who profits from the plunder is not responsible for it; it is the lawgiver, society itself, and this is where the political danger lies. I declare that I do not mean to impugn the intentions nor the morality of anybody. I am attacking an idea that I believe to be false-a system that appears to me to be unjust; and this is so independent of intentions, that each of us profits by it without wishing it, and suffers from it without being aware of the cause.”  

VICTIMS OF LAWFUL PLUNDER

Men naturally rebel against the injustice of which they are victims. Thus, when plunder is organized by law for the profit of those who make the law, all the plundered classes try somehow to enter — by peaceful or revolutionary means — into the making of laws. According to their degree of enlightenment, these plundered classes may propose one of two entirely different purposes when they attempt to attain political power: Either they may wish to stop lawful plunder, or they may wish to share in it.

Woe to the nation when this latter purpose prevails among the mass victims of lawful plunder when they, in turn, seize the power to make laws! Until that happens, the few practice lawful plunder upon the many, a common practice where the right to participate in the making of law is limited to a few persons. But then, participation in the making of law becomes universal. And then, men seek to balance their conflicting interests by universal plunder. Instead of rooting out the injustices found in society, they make these injustices general. As soon as the plundered classes gain political power, they establish a system of reprisals against other classes. They do not abolish legal plunder. (This objective would demand more enlightenment than they possess.) Instead, they emulate their evil predecessors by participating in this legal plunder, even though it is against their own interests.

PETITION FOR WRIT OF MANDAMUS

 

PETITION FOR WRIT OF MANDAMUS

     RES JUDICATA GIVES ADDRESS to location of TWO filed copies. Copy ONE was from the 2003 closing. ALTERED copy TWO was within days after the closing, the Note (the “cow”) and Mortgage (the “tail”) were separated, all rights and interest in the “Cow” was transferred to FHLMC complete with indorsement, altered, stamped “WITHOUT RECOURSE and the CUSIP NUMBER redacted. The Mortgage (the “tail”) was retained by Wells Fargo and made into a false filed instrument used as alleged authority to foreclose. Originals scanned, shredded.

     No assignment was recorded because the GSE refused to incur and pay the $12.50 transfer fee. Attorneys for Wells Fargo convinced the courts the mortgage alone would support WF’s foreclosure even though no default had occurred due to the facts of a prepayment in full offer that was improperly refused. NO paid-in-full Note has been surrendered even after the liquidation of the asset was payment in full. The scanned and then destroyed original Note is still electronically in circulation performing as a non-producing asset on the investment banking side.

     Which one of the contradicting copies is to be judged acceptable? NEITHER.

     Quiet Title Action requires PROOF OF CLAIM, THE ORIGINAL. No Original Negotiable Instrument pursuant to FRCP Rule 1002 has been filed by Wells Fargo that could impact title because Wells Fargo has sold its interest before 2009 and no longer has standing by virtue of it NO LONGER POSSESSES an Original Negotiable Instrument pursuant to FRCP Rule 1002 that can prove claim.

     Attorneys are required to be compliant, guided by court rules. Courts have their own rules that govern the discipline of attorneys. Un-sworn and un-verified statements by barred attorneys are not competent evidence. Judgment based on fact witnesses is a requirement and is now needed in this Quiet Title Action.

     What would the Defendant’s Attorneys have the court to believe? Ninety percent of all mortgages in American are similarly separated with un-recorded assignments, thus un-enforceable as ruled by the Kansa State Supreme Court in a 2009 ruling. In fact, many similarly styled Quiet Title Action cases in Dale County Circuit Court has enjoyed NO court judgment. § 35-10-9 declares this mortgage, as well as all similar mortgages, null and void by virtue of the fact that Wells Fargo is not entitled to the funds. The error must be corrected. Filing of a false instrument cannot be assigned by a judicial court as true without the assignor losing judicial immunity.

 

STATEMENT OF RELIEF SOUGHT AND ISSUES PRESENTED

    

     Appellant is seeking a Writ of Mandamus from this Honorable Court directing Kimberly A. Clark, Dale County Circuit Judge, to take judicial notice that case 26-CV-2019-000008.00 is a Quiet Title Action where legal title is all that is in issue in the action, and such title, when ascertained, whether in the plaintiff or in the defendant, draws to it a REQUIRED JUDGEMENT OF THE COURT. Judge Clark dismissed in error the Quiet Title Action upon res judicata motion by Defendants. Original and authenticated instruments that could impact title have never appeared or filed.

Alabama Property Rights and Remedies

§ 10.10(c) “there is no statutory time which an action to quiet title must be brought.”

 

     The required elements for mandamus relief are as follows:

 

1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.

 

In order to justify the dismissal of a pro se complaint, it must be " 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' " Haines v. Kerner, 404 U.S. at 521, 92 S.Ct. at 594 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).

 

The Court Official must show on what authority her decision is based upon and must prove her authority to do or not do something. Failing this, the court must decide for the petitioner, who may be any person, not just an interested party.

 

   The plaintiff’s Quiet Title Action Complaint was dismissed based on Defendant’s motion for res judicata. Judge Kimberly Clark also ordered dismissal in previous case 26-CV-2013-000006.00 based on her ASSIGNMENT of “superior” merit to unsworn and unverified statements of Defendant’s counsel above DEFENDANT’S OWN EXHIBITS THAT CONTRADICT THE ATTORNEY STATEMENTS.

     In the 2013 case, was filed a notarized affidavit of Andres Kruse, Vice President Loan Department Wells Fargo Bank, N.A., as EXHIBIT 1 and attached its EXHIBIT A, a true and correct (altered) copy of the Note and Mortgage. Wells Fargo Home Mortgage, Inc. is a division of Wells Fargo Bank, N.A.

     EXHIBIT A, filed by the Defendant in its pleadings, is a copy of the original and “UNALTERED” Adjustable Rate Mortgage showing no redacted CUSIP NUMBER.

     See the Kruse Affidavit’s promissory note, page 158 of the official record from the referenced res judicata case 26-CV-2013-000006 and Defendant’s EXHIBIT A and COMPARE the level of interest held by WF before and WF’s NO interest level after the sale of the note. Both documents are attached to this Writ of Mandamus request.

     Official Record page 158 establishes, beyond dispute, the ZERO level of interest the Defendant, Wells Fargo has, as its PROOF OF CLAIM and its STANDING for consideration in the Quiet Title Action. To date, Wells Fargo has denied courts the gaining of subject-matter jurisdiction. Judge Clark has ignored Rule 12(h)(3) and 12(b)(1):

Rule 12(h)3 Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court MUST dismiss the action.

 

Rule 12 (b)(1) lack of subject-matter jurisdiction.

 

Standing requires that the party prosecuting the action have a sufficient stake in the outcome and that the party bringing the claim be recognized in the law as being a real party in interest ENTITLED to bring the claim. This entitlement to prosecute a claim in Alabama courts rests exclusively in those persons granted by substantive law, the power to enforce the claim. ‘[t]he mortgage becomes useless in the hands of one who does not also hold the obligation because ONLY THE HOLDER OF THE OBLIGATION CAN FORECLOSE.’ Court of Civil Appeals of Alabama. Diane GRAY v. FEDERAL NATIONAL MORTGAGE ASSOCIATION. 2120087. Decided: January 10, 2014.

 

“A party lacks standing to invoke the jurisdiction of a court unless he has, in an individual or a representative capacity, some real interest in the subject matter of an action.” Wells Fargo Bank, v. Byrd, 178 Ohio App.3d 285, 2008-Ohio-4603, 897 N.E.2d 722 (2008). It went on to hold,” If plaintiff has offered no evidence that it owned the note and mortgage when the complaint was filed, it would not be entitled to judgment as a matter of law.” Also, Kumar Corp. v Nopal Lines, Ltd, et al, 462 So. 2d 1178, (Fla. 3d DCA 1985).

 

Wells Fargo v. Reyes, 867 N.Y.S.2d 21 (2008). Dismissed with prejudice, Fraud on Court & Sanctions. Wells Fargo never owned the Mortgage.

 

     It was never “Show me the note”.  Mizell is attacking Wells Fargo on the “show me standing” and “show me that Wells Fargo Bank, N. A. is the real and beneficial party of interest who has the right to enforce the note”.

     Judge Clark also ignored the truthful fact report to the IRS identifying the actual lender to be FHLMC, not Wells Fargo Bank, N.A. See attached Form 1099A.

     The promissory Note was SOLD at some time prior to 2009, separated from the mortgage that Wells Fargo retained. Other courts have issued rulings germane to this mandamus requests. This Court of Civil Appeals of Alabama is on record as ruling:

Mortgages takes the position that a note and mortgage can be separated but that ‘[t]he mortgage becomes useless in the hands of one who does not also hold the obligation because only the holder of the obligation can foreclose.’ ‘The note is the cow and the mortgage the tail. The cow can survive without a tail, but the tail cannot survive without the cow.”

 

No debt instrument has been surrendered for authentication, which can be replaced by a court judgment.

Moreover, in the case of original mortgages and promissory notes, they are not merely exhibits but instruments which must be surrendered prior to the issuance of a judgment. The judgment takes the place of the promissory note. Surrendering the note is essential so that it cannot thereafter be negotiated. See Perry v. Fairbanks Capital Corp., 888 So.2d 725, 726 (Fla. 5th DCA 2004). THE JUDGMENT CANCELS THE NOTE. THE CLERK CANNOT RETURN THESE INSTRUMENTS TO THE PARTIES. Johnston v. Hudlett, 32 So. 3d 700 (Fla 4d DCA 2010)

 

           Servedio v. US Bank N.A (4D10-1898)

The summary judgment order should be reversed because the lender did not file “a copy of the original note and mortgage prior to the entry of judgment the original mortgage note with the trial court.” Even if the trial court considered the note and mortgage at the hearing, the documents were NOT AUTHENTICATED, filed, and served more than twenty days before the hearing as required byRules1.510(c), 1.510(e) and Appellee’s failure to abide by these rules also necessitates reversing the order granting summary judgment. Verizzo, 28 So. 3d at 977-78; Mack v. Commercial Indus. Park, Inc., 541 So. 2d 800 (Fla. 4th DCA 1989).

 

While Bank of America ALLEGED IN ITS UNVERIFIED COMPLAINT THAT IT WAS THE HOLDER OF THE NOTE AND MORTGAGE, the copy of the note attached to the amended complaint CONTRADICTS that allegation. WHEN EXHIBITS ARE ATTACHED TO A COMPLAINT, THE CONTENTS OF THE EXHIBITS CONTROL OVER THE ALLEGATIONS OF THE COMPLAINT. Khan v. Bank of America (Fla: Dist. Court of Appeals, 5th Dist. 2011)

 

(See Wright v. Emory, 41 So.3d 290,292(Fla. 4th DCA 2010) (“[An] attorney’s unsworn and unverified statements do not establish competent evidence.”)).

 

In re Leisure Time Sports, Inc. 194 B.R. 859, 861 (9th Cir. 1996) THE HOLDER OF A NOTE HAS STANDING TO SEEK ENFORCEMENT OF THE NOTE, Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399, 401 (Fla. 2d DCA 2000) When exhibits are attached to a complaint, the contents of THE EXHIBITS CONTROL OVER THE ALLEGATIONS OF THE COMPLAINT.

 

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.

 

ONLY A HOLDER-IN-DUE COURSE CAN GRANT

THE RIGHT OF REDEMPTION.

 

Ala. Code § 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.

 

     Wells Fargo has not surrendered the instrument, even after the foreclosure auction paid in full the “absent un-possessed” instrument.

Ala. Code § 7-3-501(b)(2) .PRESENTMENT.

§7-3-501(b)(2) Surrender the instrument if full payment is made.

 

     Wells Fargo Bank, N.A., Defendant/Appellee has filed NO Original Negotiable Instrument pursuant to FRCP Rule 1002 simply because it SOLD THE ORIGINAL and it no longer has possession. THE HOLDER-IN-DUE COURSE HAS NOT APPEARED. The foreclosure conducted by Wells Fargo Bank, N.A. was WRONGFUL. The City of Ozark can purchase private property only through its power exercised in an EMINENT DOMAIN procedure. No title to the property was conveyed to the City of Ozark by Wells Fargo who had no title to convey. Whoever has superior title is owner.

“No title is conveyed through the sale when a party who lacks a right to enforce the note proceeds with foreclosure sale.” Williams, supra. Cited in Holms v. Wells Fargo Home Mortgage, Inc. et al, 43rd Jud. Cir. Ct. Div II, No. 08CN-CV00944 (Jan. 26, 2015).

 

What belongs to us cannot be transferred to another without our consent. But this must be understood with this qualification, that the government may take property for public use, paying the owner its value. The title to property may also be acquired, with the consent of the owner, by JUDGMENT OF A COMPETENT TRIBUNAL. (Maxim of Law)

 

What does not appear and what is not, is the same; it is not the defect of the law, but the WANT OF PROOF. (Maxim of Law)

 

     Purchase by a municipality using an Eminent Domain Procedure cannot be completed without the granted consent of the private property owner. Said protection is embodied in the Fifth Amendment of the U. S. Constitution, as well as language of Art. I, § 23 Eminent Domain, Alabama Constitution 1901 and untold rulings by the SCOTUS and reports citing legal precedence in courts throughout the nation.

     In addition, Judge Clark should be encouraged to allow Haywood Jackson Mizell, Appellant/Plaintiff and his forensic document experts, to examine the 2003 Original pursuant to FRCP Rule 1002, and unseparated, promissory note and mortgage unit contract instruments executed with Wells Fargo Home Mortgage, Inc., Appellee/Defendant in lieu of the alleged certified copy of such promissory note, introduced by reference by the Appellee in pleadings and during hearings in case 26-CV-2013-000006 and in case 26-CV-2019-000008.00 pleadings and at hearing on June 19, 2019. In light of the fact, that document expert affidavits may be able to attest that the alleged certified copy is a computer-generated forgery when compared to the Original pursuant to FRCP Rule 1002.

     This court has jurisdiction for such Writ of Mandamus, as Appellant is merely asking for authentication of a certified copy of a document, which was introduced by reference in pleadings before the courts. This court has jurisdiction to issue all writs necessary or appropriate in aid of its jurisdiction and agreeable to the usages and principles of law pursuant to 28 U.S. C. §1651.

§ 1651. WRITS

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.

 

     Such Mandamus will not represent any harm or undue hardship on Wells Fargo, Appellee, but is of paramount importance and crucial for Mizell/Appellant and for all similar cases throughout the whole nation in light of the fact that the admissibility of fact witness evidence be considered competent and should prevail over hearsay evidence such as un-certified and un-sworn statements of attorney’s copies.

     Wells Fargo Bank, N.A. is currently occupying a fiduciary position as a bank/mortgagee. Integrity of US bankers is about to be undermined yet again. Civil rights and human rights of the U.S. citizens to conduct business with institutions of integrity, as well for due process and redemption rights of the Appellant is about to be taken away yet again without this Honorable Court granting such Writ of Mandamus. Due to the fact, that according to experts, alleged certified copy could be a forgery, and due to the fact, that officials, who released this alleged certified copy, suspected to be uttering a forgery, obstructing   justice and refusing to allow access to the original, and due to concerns of further tampering or destruction of the document in question, appellant respectfully request immediate transportation of the original 2003 promissory note and mortgage that establish standing for claims made by Wells Fargo Home Mortgage and that gain for the court subject-matter jurisdiction, plus the document in question as stored electronically, as well as 2003 microfiche film containing a copy of such scanned record, to secure and fire resistant facility offsite, such as Fort Rucker Army Base until further inspection and expert examination of above documents can be performed.

Memorandum of Points and Authorities

     This Petition for a Writ of Mandamus is based on 28 U.S.C §1651.

 

     Case at hand was filed by Plaintiff. In the other case, during the December 16, 2014 hearing D. Keith Andress, Attorney for Wells Fargo argued that the document he was waiving was the original promissory note that had been converted to a check that was due to be retained by WF and not filed into the court record for examination.

     He argued that due to possession of said original promissory note that any alleged copy of such mortgage document and the relief sought by Mizell cannot be granted and the case then at hand be moot and is FAIT ACCOMPLI.

a thing that has already happened or been decided before those affected hear about it, leaving them with no option but to accept it.

 

     Haywood Jackson Mizell, from first-hand knowledge, observed that the alleged “original” that Andress had waived, to be a crude computer-generated forgery, and not a true and correct copy of the 2003 Original Negotiable Instrument pursuant to FRCP Rule 1002 type written long form promissory and mortgage instrument, allegedly issued to Mr. Andress only after the foreclosure auction of 2013.

     In the current Quiet Title Action, a claim of Res Judicata was stated that justified a Rule 12(B) dismissal order by Judge Clark. NO FINAL JUDGMENT has been issued thus preventing an appeal. Res Judicata claim suggests that the court clerk in that case has the Original Negotiable Instrument pursuant to FRCP Rule 1002 that is necessary in PROOF OF CLAIM of who has the legal title at issue in the action that could DRAW THE JUDGMENT OF THE COURT. The Original Negotiable Instrument pursuant to FRCP Rule 1002 has never been filed into any case or into Public Record. In fact, an affidavit by a vice president of the Wells Fargo loan department exhibited the fact that Wells Fargo no longer has the Original Negotiable Instrument pursuant to FRCP Rule 1002 that can be filed because Wells Fargo HAD BEEN PAID AND TRANSFERRED ITS INTEREST “WITHOUT RECOURSE”. (See Exhibit page 158)

     The Quiet Title Action case has been dismissed with no ability for appeal, refusing this court examination of the Original pursuant to FRCP Rule 1002, with no original for court comparison, verification of its legitimacy is impossible relative to impact on superior title holder.

     Haywood Jackson Mizell requests an appeal court hearing, arguing that the dismissal order was in error without a court judgment.

"It is not the function of our Government to keep the citizen from falling into error, it is the function of the citizen to keep the Government from falling into error."  American Communications Association v. Douds, 339 U.S. 332, 442 (1950).

 

     The original has never been made public anywhere that could support a res judicata argument. Res Judicata gives an address where a Quiet title proof of claim may reside. All res judicata claims favorable to the defendants are based on un-verified copies, not certified Originals pursuant to FRCP Rule 1002. All that a Quiet Title Action asks is that original document in question be made public for its impact on who has superior title holder status.

     A before sale reduced COPY of the above-mentioned long form promissory note and mortgage is so public, that Wells Fargo is profiteering from it by seizing property and by posting the alleged certified copy into court records and selling property without warranty of title.

     The Circuit Court Clerk and the Probate Judge did not respond to the request for any administrative appeal hearing and never allowed inspection of the Original pursuant to FRCP Rule 1002. Haywood Jackson Mizell was told that the Circuit Clerk and the Probate Judge can certify only to what is of record and will not and CANNOT CERTIFY TO THAT WHICH DOES NOT APPEAR.

     Haywood Jackson Mizell sought loan source information that had been filed with the Department of Homeland Security. NO records had even been reported that could confirm that Wells Fargo had ever made said loan. The only report that could identify the source of funds was filed with the Internal Revenue Service and that report was submitted by Wells Fargo Home Mortgage identifying FHLMC (Freddie Mac), shown to be the real lender and that according to a commercial database. This is significant, as a lender, who does not have a valid promissory note and mortgage in their possession has to resort to use of stolen and fraudulently obtained worthless documents whose existence was not reported to the Homeland Security due to its non-existence.

     Without an Original Negotiable Instrument pursuant to FRCP Rule 1002 there is NO VALID CLAIM that can be proven, and the plaintiff is denied protection of EMINENT DOMAIN TRIBUNAL PROCEDURE.

     Haywood Jackson Mizell has a copy of the Andrea Kruse, Vice-President Loan Documentation Wells Fargo Bank, N.A. affidavit showing that the said Wells Fargo Home Mortgage document, the security CUSIP number, was redacted so that the number could not be seen by the public because separation on the note and mortgage would be evident, and that alone rendered the documents null and void. Wells Fargo justified its wrongful foreclosure on an absent obligation instrument even though NOT ENTITLED to the funds. The auction sale was null and void.

Alabama Code Title 35. Property § 35-10-12

Where a power to sell lands is given in any mortgage, 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.

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.

 

     The legal title is all that is in issue in the Quiet Title Action, and such title, when ascertained, whether in the plaintiff or in the defendant, draws to it the JUDGMENT of the court.

     What is asked of this court is to order the lower court to faithfully perform its duty and make a just judgment of the court based on fact witnesses as to who is holder of Superior Title.

     Evidence rules of the state of Alabama are similar to Federal Rules of Evidence. State of Alabama provides "Documentary evidence may be received in the form of copies of excerpts, if the original is not readily available, provided that upon request parties shall be given an opportunity to compare with the original."

     Federal Rule of Evidence 1002 states that "[t]o prove the content of a writing, recording or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress." The Federal Rules of Evidence do indeed provide otherwise. With regard to duplicates and public or official records, the rules state in pertinent part as follows:

A "duplicate" is a counterpart produced by the same impression as the original,... or by mechanical or electronic re-recording,... or by other equivalent techniques which accurately reproduce the original. Federal Rule of Evidence 1001(4). A duplicate is admissible to the same extent as an original unless (l) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. Federal Rule of Evidence 1003. (emphasis added)

 

     In violation of its own rules of evidence, as well as federal rules of evidence and Gambles best evidence rule, Kimberly A. Clark, Judge is refusing to allow Haywood Jackson Mizell and his forensic document experts inspection of the original promissory note and mortgage unit in lieu of the alleged certified copy introduced by reference by the Appellee in pleadings and during the June 19, 2019 hearing in above mentioned case.

     Haywood Jackson Mizell, Plaintiff/Appellant raises a genuine question regarding authenticity of alleged certified copy of Wells Fargo Bank, N.A.’s promissory note and mortgage contract with plaintiff.

     This is a case of national importance. It is essential and exigent for this court to issue a Writ of Mandamus ordering Kimberly a. Clark, Judge to allow Haywood Jackson Mizell, and his document experts, inspection of the original type written long form promissory note and mortgage unit with Haywood Jackson Mizell, in order to perform authentication of the alleged certified copy, referenced during the June 19, 2019 hearing.

     Such relief will not prejudice Wells Fargo Bank, N.A. as WF has already released the alleged certified copy and inspection of the original cannot be prejudicial.

     There is no hardship on the defendant or Kimberly A. Clark, Judge, as defendant is not required to do anything, and Dale County Circuit Court and Dale County Probate Office routinely allow inspection of records.

     If the requested Writ of Mandamus is not granted, Appellant will be greatly prejudiced, as his case is intimately connected to the “original” certificate in question. Appellees introduced the alleged certified copy as proof of existence of the document in question on file and as basis for their position that the instant case needs to be dismissed. Without access to the original appellant cannot disprove allegations by the Appellees.

American Jurisprudence 2d Volume 25 §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." Thus, even against one without title, plaintiff cannot recover in ejectment unless he proves title or prior possession in himself;

 

     The legal title is all that is in issue in the action, and such title, when ascertained, whether in the plaintiff or in the defendant , draws to it THE JUDGMENT OF THE COURT. “Cloud over property” that made the value of the property ZERO and the property UN-MARKETABLE, can be removed. Then City of Ozark can purchase legal title by the exercise its power of Eminent Domain by paying just compensation.

CONCLUSION

     Judge Kimberly A. Clark assigned merit to a non-existent Wells Fargo Bank, N.A. claim that can never be filed as proof into public record.

     On July 23, 2012 RE: Loan Number 708-012850779, I am responding on behalf of Wells Fargo Home Mortgage (WFHM) to your complaint filed with the Consumer Financial Protection Bureau (CFPB).

     Enclosed is a copy of the Note you executed. We are not providing you with the original Note, because WFHM is not subject to USC Title 18, Part1, Chapter 101, Section 2071, as the Note was not deposited or filed with any judicial or public officer of the United States.

 

     Signed by Brooke Bosier, Executive Mortgage Specialist, Office of Executive Complaints, Wells Fargo Bank, N.A.

     Letter written August 31, 2012 by Amber Regan Executive Mortgage Specialist, Office of Executive Complaints, Wells Fargo Bank, N.A. explains Wells Fargo’s policy RE: 708-0128507779.

     As stated in our prior responses to you WFHM does not disburse original documents. However, WFHM does have a valid loan and lien on this property.

 

     WFHM is consistent in the exercise of its policy. The proof of claim has never been filed into any case, including the instant Quiet Title Action Complaint, because a judge can be easily convinced by the unsworn and unverified statement of the barred attorney who represents WF in court. A sworn pro se presentation of Fact Witnesses is not to be believed. “Robo signers” are replaced by effective statement of attorneys without regard to truth facts. Peonage is re-instated by Wells Fargo, not abolished.

42 U.S. Code § 1994 - Peonage abolished

The holding of any person to service or labor under the system known as peonage is abolished and forever prohibited in any Territory or State of the United States; and all acts, laws, resolutions, orders, regulations, or usages of any Territory or State, which have heretofore established, maintained, or enforced, or by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise, are declared null and void.

 

     Once the mortgage fraud is out front and known, it becomes apparent that the homeowner will never own his home property with a legal and unbroken chain of title, the homeowner then will realize that he was and will always be a tenant on his property making payments that will never purchase the home property, then he knows he is an involuntary indentured servant.

     Before the foreclosure auction, a notice of a misprision of felony was hand delivered to Honorable Judge William Filmore, Dale County Circuit Judge. It was ignored.

18 USC § 4 - Misprision of felony

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

 

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".

 

     In Alabama, the eligible person, H. J. Mizell, who holds legal title to the real estate filed the quiet title action. Wells Fargo Bank, N.A. had previously sold its interest in the property and does not have sufficient interest to participate in the Quiet Title Action. All that WF can do is slander the title.

The elements of a slander of title action under Alabama law are: (1) ownership of the property by plaintiff; (2) falsity of the words published; (3) malice of defendant in publishing the statements; (4) publication to some person other than the owner; (5) the publication must be in disparagement of plaintiff's property or the title thereof; and (6) that special damages were the proximate result of such publication. Ala. Code 1975, § 6–5–211. Buckentin v. SunTrust Mortg. Corp., 928 F. Supp. 2d 1273 (N.D. Ala. 2013) (applying Alabama law).

 

     Wells Fargo Bank, N.A. has NO required Mortgage Banker Bond to secure its compliance with the mortgage contract and execute replevin.

"Replevied," used in its technical sense, means delivered to the owner (Steuer v. Maguire, 66 N. E. 706, 707; 182 Mass. 575, 576 (1903) while the words "to replevy" means to recover possession by an action of replevin. (Tillson v. Court of Appeals, G.R. No. 89870, May 28, 1991, 197 SCRA 587, 598).

 

     NO DEFAULT. A 2012 offer to pay in full was improperly refused. (See EX AFM).

 

     PETITIONER HAS NO REMEDY OTHER THAN THIS COURT MANDAMUS REQUEST. PROOF OF CLAIM MUST BE FILED FOR CONSIDERATION.

     Remedy in Maxim of Law.   In the delivery of writing, not what he said, but what is done is to be considered.

FOR WHAT ITS WORTH

     The real issue always at hand is distilled into one word, CONTROL. In the instant Quiet Title Action, Wells Fargo had sold the loan and was without lien yet took control so that the City of Ozark could take control of the property without an Eminent Domain procedure and appearing to gain control at a small fraction of the property value.

     In 2008, when earnest money had sealed a sale, Wells Fargo sabotaged the sale by reducing the property value to zero and making it unmarketable. Snipers on the roof and other law enforcement personnel were at the foreclosure auction to control the number of bidders, limiting the number to one.

     What do you call it when a bunch of companies colludes to set prices, fix markets, close off competition, capture regulators, and bribe politicians? We call it a cartel, right? Few have heard the term, BANKING CARTEL.

Nelson Rockefeller famously said, “The secret to success is to own nothing, but control everything.”

 

It is against equity to deprive freeman of the free disposal of their own property. Co. Litt. 223. See 1 Bouv. Inst. n. 455, 460.

 

     Big Central bank officials escape 20-year jail sentences because the corporations are considered by congress “too big to fail” even when the officials function as criminals making them what the FBI before congress has labeled as “criminal enterprises”. A multitude of crimes, at a minimum, avoid prosecution under Title 18 §1512(B) alter, destroy, mutilate, or conceal an object with intent to impair the object's integrity or availability for use in an official proceeding;

“Banking was conceived in iniquity and born in sin. Bankers own the earth; take it away from them but leave them with the power to create credit, and, with a flick of the pen, they will create enough money to buy it all back again. Take this power away from them and all great fortunes like mine will disappear, and they ought to disappear, for then this world would be a happier and better world to live in. But if you want to be slaves of bankers and pay the cost of your own slavery, then let the bankers control money and control credit.” - Lord Stamp, Director of the Bank of England, 1940.

 

     Slightly over the past decade, the one percent have amassed control of nearly forty-six percent of the nation’s assets up from less than ten percent two decades ago. Will “Proof of Claim” enforced by the Rule of Law prevail? Public officials work for the citizens not the other way around and especially not work for the CARTEL FICTION.

              

                         Respectfully submitted,

 

 

                          

                         ______________________________

                         Haywood Jackson Mizell, pro se

                                                            

         August 6, 2019

 

STEADFAST IMMOVABLE NATURAL LAW

 

STEADFAST IMMOVABLE NATURAL LAW

     American Jurisprudence 2d Volume 25 §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." Thus, even against one without title, plaintiff cannot recover in ejectment unless he proves title or prior possession in himself;

   The US and Alabama Constitutions confirm that government cannot impair the obligation of a contracts.

Section 10

1: No State shall enter into…. Law impairing the Obligation of Contracts,

     “Some men say the earth is round and some men say it is flat, but if it is flat will the king's command make it round? If it is round, can an act of Parliament make it flat?”

      To say you have a driver’s license may be true but presenting the possessed driver’s license is the necessary proof of possession.

      Action taken when based on a lie, is by truth dismantled regardless of when attacked.

Alabama Property Rights and Remedies

§ 10.10(c) “there is no statutory time which an action to quiet title must be brought.”

 

     A Title to property can be “clouded” by a lie.

 

     NO PROOF of TITLE has appeared that authorized the subjective possession of 285 East Broad Street and possession of Lot 8, Lakeland Hills Subdivision Ozark, Alabama. (For more see Little Pink House)

     Those who support conclusions grounded on obviously incompetent evidence, all in defiance of truth, display their integrity and wisdom. Truth cannot be changed. The planet is still round, contrary to shameful judicial decrees. The conscience that governed man even before Moses, in some, it is not found.

     Who prefers darkness instead of the light of truth?

     There is no right way to do a wrong thing.

     For proof see Probate Records MISC Book 282 and pages 288 thru 302 filed 05/22/2017.

     Lenders for both properties were satisfied by double payment, yet both were seized under the color of law with seizure sanctioned by unlawfully seated officials who possess no official “faithful performance bond”.

     Someday, the Truth will drain the swamp, even in Alabama. “So then everyone of us shall give account of himself to God”.

Balance: Title “Cloud” Removal with competent evidence

 

RE: Title “Cloud” Removal

Property legally described as follows:

         House and lot on East Broad Street in the City of Ozark, Alabama, known as the JD. Holman Residence property, and being more particularly described as follows: Bounded on the south by East Broad Street, on the east by house and lot known as the L.W. Kolb property recently purchased by Dr. William E. Chesser and wife, on the north by property formerly known as the Charlie Stokes lot and now assessed to Mike Sollie, Sr., estate, and on the West by a narrow street or alleyway called Rye Street and currently called Mutual Street The property conveyed herein comprises in the aggregate two and one-half acres, more or less, and it is the intent to convey all the property acquired by the said JD. Holman for his said home site, including the parcel in the northwest corner of the total tract acquired from Saphronia Smith, the one-half acre, more or less, in the southwest corner of the total tract acquired from S.B. Brown and wife, in 1912 and the one and one-half acres comprising the east portion of the total tract acquired from CA. Stokes in 1907, together with any other parcels acquired by W. Holman and used by him in connection with the said home-place conveyed herein. Dale County, Alabama.

Said property is commonly referred to as 285 East Broad Street, Ozark, AL 36360 (the Property).

Gentlemen,

What belongs to us cannot be transferred to another without our consent. Dig. 50, 17, 11. But this must be understood with this qualification, that the government may take property for public use, paying the owner its value. The title to property may also be acquired, with the consent of the owner, by a judgment of a competent tribunal.

Purchaser without notice not obliged to discover to his own hurt. See 4 Bouv. Inst. n. 4336.

A covenant was made to defend generally the title to property at 285 East Broad Street, Ozark, Alabama. This is yet another attempt to fulfill that covenant. All attempts for judicial “cloud” removal have not succeeded. This attempt is to go outside the public arena because the SCOTUS has ruled that the transaction involving a Deed of Trust is private and is not a state action. CANCEL/RESCIND NOTICE Comes now Haywood Jackson Mizell as plaintiff to again amend his complaint by giving notice that he does hereby cancel/rescind the referenced loan in this case bearing the number 708-0128507779 and mortgage as filed MORT Book 392 Pages 346 thru Page 364 recorded in Above Book and Page 06/25/2003 11:29:26 AM Eunice Hagler Probate Judge Dale County, Alabama.

Wells Fargo consented by their silence to an operation of law that requires return of the instrument in a rescind/cancel exchange.

What is sought is a stamped PAID-IN-FULL authenticated instrument that must be surrendered after full payment as the agreement requires so that the title can be conveyed. Absent the instrument, no “power of sale” exists. What does not appear does not exist. It is against equity to deprive freeman of the free disposal of their own property. Co. Litt. 223. See 1 Bouv. Inst. n. 455, 460.

Many attempts, and years of discovery seeking why the incomplete disclosure of especially the identity of the true lender, were dedicated to the removal of the “cloud” so that a conveyance of title could be achieved especially after earnest money sealed the intent. A “cloud” imposed over the title by Wells Fargo by the policy of not “disbursing original documents” as the law demands and the purchaser required resulted in a 2008 agreed conveyance not materializing.

Per the earnest-money purchase provider, The City of Ozark possess the property, but without title. I am charged with removing the cloud so that conveyance can be freely executed and invested funds made secure. Hopefully, the conveyance profits the transferring entity by more than double the funds submitted from the wrongful auction held in the presence of law enforcement officers that said presence made it a state action subject to due process rights.

Both federal and state courts actions proceeded with subject matter jurisdiction acquired by the instrument that was replaced by the judgment rendered by the involved court. The attorney for Wells Fargo states that the instrument is yet within his possession and the instrument is now an unsecured check made so by separation from the mortgage and ruled a check by Judge Quattlebaum thus declaring it the property of Wells Fargo and not subject to being surrendered.

I am a registered architect who is accustomed to asking the contractor’s bonding company to intervene when performance becomes an issue. Such demands made on a bonding company is made outside of state action and is private.

Bonding company investigations determine who is short in performance and steps in to assure the performance that leads to accepted completion.

My request is simple. Provide me the Bonding Company name, address and the corresponding number of the bond that assures your performance in the public arena. Once the Bonding Companies identifies the obstruction, then uncertainty will give way to project completion. You can appreciate that many others have been accused of being an obstacle other than the one questioned. The result is a “clouded” title. The bonding companies can certainly do a better job than I have done my dedicated thou unfulfilled performance of the borrower’s covenant.

“BORROWER COVENANTS that Borrower is lawfully seized of the estate hereby conveyed and has the right to mortgage, grant and convey the Property and that the Property is unencumbered, except for encumbrances of record.  Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record.”

 The Borrower’s duty is to see the title defended against all slander.

The elements of a slander of title action under Alabama law are: (1) ownership of the property by plaintiff; (2) falsity of the words published; (3) malice of defendant in publishing the statements; (4) publication to some person other than the owner; (5) the publication must be in disparagement of plaintiff's property or the title thereof; and (6) that special damages were the proximate result of such publication. Ala.Code 1975, § 6–5–211. Buckentin v. SunTrust Mortg. Corp., 928 F. Supp. 2d 1273 (N.D. Ala. 2013) (applying Alabama law).

 Auburn School of Architecture teaches the importance of balance.

                                                 BALANCE

               COMMERCE                                                               COMMERCE

             EQUAL VALUE                                                           EQUAL VALUE

BORROWER COUPLE                                                    LENDER

HOUSE PLANS                                                                 LOAN COMMITEMNT

ARCHITECT PLANS AND SUPERVISION                    CONSTRUCTION LOAN

LISCENSED CONTRACTOR                                            BONDS TO LIMIT COSTS

(BID-PAYMENT-PERFORMANCE)

 ARCHITECT APPROVED INSPECTION REPORTS     PROGRESS PAYMENTS

 CONSTRUCTION FOR                                                    PROMISSORY NOTE SIGNATURE

CERTIFICATE OF OCCUPANCY

 SECURED MORTGAGE LIABILITY                            SECURED MORTGAGE LOAN ASSET

 POWER OF SALE IN THE EVENT OF DEFAULT        REPLEVIN/JUDGE’S BOND IN THE

                                                                                               EVENT OF WRONGFUL FORECLOSURE

 PROMISSORY NOTE ASSET RETURN AFTER             SURRENDER OF LIABILITY SIGNATURE NOTE

STAMPED PAID-IN-FULL                                                 IF PAID-IN-FULL        

                                                                        NOTE:

Borrower defaults by lack of payment. Property foreclosure.

Lender defaults by unwillingness to surrender note if paid in full.

Ala. Code § 7-3-501(b)(2) “Surrender the instrument if full payment is made.”

See Ala. Code § 35-10-9 when agreement is made null and void.

 Should Lender sell the note, the assignment must be recorded in probate records. Then holder-in-due-course of record alone may foreclose in the purchaser’s name.

Should the promissory note be stolen § 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.” Instrument is the signed promissory note.

 SCOTUS has ruled the agreement private with no need for an attorney. Notice of rescind/cancel is a one paragraph statement, which becomes effective when mailed. The agreed rescind/cancel exchange is by OPERATION OF LAW as if signed by a judge after due process. Ala. Code § 7-3-305. Defenses and Claims in Recoupment and 15 U.S. Code § 1635(3).

 The problem is given birth by Wells Fargo’s refusal of full prepayment offered prior to foreclosure, but was conditioned on clear title conveyance that would enable a sale. Since Wells Fargo was not the lender and was servicer only, WF did not then and has not now surrendered an instrument that can be authenticated. The buyers will not purchase property without ownership.

Your Mortgage Banker Bond bonding company can help locate the instrument that will clear the title. Bonding company’s job is to resolve stalled project.

Please note that the sale price was more than double the auction created price. Yet, a sale by owner was not permitted. Funds on deposit at WF to prepay the entire debt was an amount more than double the debt. Prepayment was refused. When questioned, WF stated in writing that it was not required to surrender the instrument because the instrument had never been filed on public record.

We are not providing you with the original Note, because WFHM is not subject to USC Title 18, Part1, Chapter 101, Section 2071, as the Note was not deposited or filed with any judicial or public officer of the United States.

The WF written policy is to not “disburse original documents”.

Please be advised that WFHM does not disburse original documents. However, WFHM does have a valid loan and lien on this property.

Case law agrees that the instrument must be surrendered.

New Maine Nat. Bank v. Gendron, 780 F.Supp. 52 (D. Me. 1992). The court held that defendants were entitled to rescind loan under strict liability terms of TILA because plaintiff violated TILA's provisions. National Banks and/or subsidiary Mortgage companies cannot retain the note, "Among the assets of the state bank were two notes, secured by mortgage, which could not be transferred to the new bank as assets under the National Banking Laws. National Bank Act, Sect 28 & 56" National Bank of Commerce v. Atkinson, 8 Kan. App. 30, 54 P. 8 (1898).

The request is for the surrender of a paid-in-full negotiable instrument so that after authentication the commerce contract will be unimpaired. Again, please provide your bonding company information and the policy number for your account. Thank you!!!

CONCLUSION

 Legal Title has not been conveyed with consent. Title remains with Alice Faye Mizell and will remain until an instrument giving her consent to conveyance is produced for authentication. The foreclosure was wrongful and declared so in writing as a policy of Wells Fargo.

 

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." Thus, even against one without title, plaintiff cannot recover in ejectment unless he proves title or prior possession in himself; and if he recovers by virtue of prior possession, he may be said to recover as much upon the strength of his own title as if he had shown a good title to the premises. On the   other hand, in order to prevail, plaintiff is not required to establish perfect title, all that is necessary being proof of a title superior to that of the defendant."

Taking of property in the presence of law enforcement becomes a state action. A Judge's order is after due process. A non-judicial process was wrongfully used and without an instrument of authority even after 6.5 years.

Again Ala. Code § 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."

Be Careful. The Unbonded Judge assigned may not retire.

 

IN THE CIRCUIT COURT OF

 

DALE COUNTY, ALABAMA

HAYWOOD JACKSON MIZELL           )

                                                    )

               PLAINTIFF,                      )

                                                    )

VS                                                 )       NO. CV – 13 – 6 The Holman House without

                                                     )                                City of Ozark Eminent Domain Title

WILLIAM G BARRY &                        )

WELLS FARGO BANK                        )

                                                      )

                 DEFENDANT.                   )

         The following is a transcript of the hearing in the above case which was held on November 4, 2014, and the Dale County Courthouse, Ozark, Alabama, with the Hon. Kenneth W Quattlebaum presiding.

A-P-P-E-A-R-A-N-C-E-S

FOR THE PLAINTIFF:

                                   HAYWOOD JACKSON MIZELL

                                   4518 WOODLEDGE DR.

                                    MONTGOMERY, AL 36109

FOR THE DEFENDANT:

                                     HON. D. KEITH ANDRESS

                                     BAKER DONALDSON

                                     WELLS FARGO TOWER

                                     420 20TH ST. N., SUITE 1400

                                      BIRMINGHAM, AL 35203

I-N-D-E-X

CASE CAPTION …………………………………………………………………...….1

APPEARANCES …………………………………………………………………...…..2

INDEX………………………………………………………………………………….......3

ARGUMENT BY MR. MIZELL ……………………………………………………..4

ARGUMENT BY MR. ANDREWS………………………………………………….10

ARGUMENT BY MR. MIZELL………………………………………………………..12

REPORTER CERTIFICATE…………………………………………………………...14

P-R-O-C-E-E-D-I-N-G-S

     MR. MIZELL: Wells Fargo sent me a couple of letters that said they did not disburse original documents. So, I had been a chairman, a Vice-Chairman of the bank, and I knew that in licensing from a bank you had to deal only in originals.

    So, I took it upon myself to document what I said is true. Here is to bank checks, and you can see this one right here very clearly says “original documents.” It’s on every bank check, original document. This one is another bank. This is BB&T and it sort of curved, but it says, “original documents.” When you look down here at this line right here you think it is a signature line, but it’s not. It says, “authorized representatives.” You have to blow it up 60 times to see what it says. And over here on the right side up here, the name has to be in all caps. And being a corporation or an individual, that individual becomes an all capitals corporation. And the signer over here becomes his authorized representative. This is a corporation because corporations can only deal with corporations.

     Okay. So, I knew that they had to be an authorized representative. even to make a check viable and marketable they say.

     Well, when I asked the court, I thought in petitioning the court that I simply was going to file a misprision of felony with Judge Fillmore, because I didn’t know that he had actually taken McLaughlin’s place.

   So, I just filed it over there. And I knew in the petition I wanted the court to look and see whether he had authorization to speak for the Corporation. In which this case, if I’m going to sign this check down here, I’ve got to have a check card at the bank. I wanted them to check and see that he was an authorized representative of Wells Fargo. And the only way he can get that authorization is by corporate resolution. Nothing can be done without a corporate resolution, because he is the designated representative, because Wells Fargo is the legal entity. Wells Fargo is a dead corporation legal entity. It must have a representative, just like any dead corporation.

     Okay. So, I asked the court to look into that, and I thought that since Wells Fargo had a signed authorized representative and that representative was saying that Wells Fargo by policy didn’t disburse original documents, then I would be faced with lengthly trouble.

     So, I talked to Mr. Graham here, and he was kind enough to say, "We’ll go pay it off and you can quit dealing with them." He was getting, I think, like 1.75% interest, something like that. I was paying 7.2% and they wouldn’t---would not refinance the loan, wouldn’t sell it to anybody, would let us pay it off.

     So, we didn’t know what to do.

     So, they said if you don’t pay it all, and let Wells Fargo go to the courthouse and release the lien that is on the file in the courthouse, Wells Fargo will foreclose, wouldn’t have any choice.

     So, I looked into the law, and there's no question about it.

   In an injunction, when I asked for an injunctive relief by petition, it was basically saying to the court look at it and see if we can have a permanent injunction or is it something ---so, they took their temporary measure and tried to tell me that the non-judicial foreclosure was permanent, though contrary to the clear language of the law..

     Well, you can’t there’s no question you can foreclose, but could evict without possession of the debt note, which they had already sold and been paid. Wells Fargo wanted two payments for the same debt, plus insurance proceedings from a claim due to a foreclosure.

   In fact, you can go in without any kind of permission from anybody and just take over the property. There’s no question about that but you cannot evict without the document. You’ve got to have the document. The attorneys let Wells Fargo violate the law, from permission stated by their barred attorney even though the statement is not competent evidence.

     And so, they are trying to base everything thereon, including the motion for summary judgment and like that, based on that particular temporary procedure. Now, we are here today because they have filed a motion as well for summary judgment.

   THE COURT: That is not before the court today.

     MR. MIZELL: Not today?

     THE COURT: I’ll be setting that for hearing, and you will have an opportunity to respond. I think you’ve already filed something.

     MR. MIZELL: Yes.

     THE COURT: But you have additional time.

     MR. MIZELL: Thank you

     THE COURT: --to respond to that, yeah. So, we are not here on a hearing on that today.

     MR. MIZELL: I’m sorry I’m not a lawyer because I don’t know all the procedures, but thank you for helping me.

     THE COURT: Yes, sir.

     MR. MIZELL: Since they didn’t have, I believe, the right to foreclose because they don’t have the document in hand, and they confess they didn’t have it, so I assume that if they go ahead and foreclose, that is SEPARATING the mortgage from the note.

     So, on just by coincidence on January 14, I think, the Alabama Supreme Court was so fed up with this issue that they send it back to the Alabama Court of Appeals, because they’ll deal with the contract. If there is a contractual problem, no, but we ain’t going to listen to this because of the Cow and the tail. It is simply this, the Cow can live without the tail and the Cow is the note in the tail is a mortgage you cannot waive the tail without the Cow. And if the Cow and the tail are separated, THE CONTRACT IS NULL AND VOID.

     So, the one thing I couldn’t get them to do is to acknowledge that we have not defaulted because we were prepared to pay.

     And all they had to do was give us the note after payment in full when we give them the money and they wouldn’t do it. So, I made him (Mr. Graham) available in the federal courtroom, I made him (Mr. Graham) available here.

     If anybody got any question whether not, he had the money to pay the note, he’s got the deposit slip to show he had the money, and the deposit was in Wells Fargo’s bank. They didn’t have any question whether it was legitimate or not legitimate.

   They had said, we will not disburse. Wells Fargo belives it has a legal right to foreclose, because there’s a mortgage lien on file at the courthouse that was filed in 2003, and nobody would argument that, we actually wanted to pay off the note. What can you do? Where do you go to pay off the note?

     And the thing that concerned me more than anything else was that in 1982 Jesse Adams and Adams were in the divorce. Jesse was fixed to tear the building down with a salvage company out of Atlanta. And I said, let’s look at the important things. How much would it cost to get your wife back? He said, “$120,000,” after much figuring into it. He owed $75,000 to Farmers and Merchants Bank in Ariton.

   So, I told him I would pay him the hundred $120,000. He said, “Well, what about the house?” I said we’ll just lease it from you.

     We looked at that a little bit while, and it was just too much. The minimum we could do was $500,000. And then there was first cousin Gene Sellers who is an accountant and CPA and a tax lawyer, said that they just come up with a new thing called the 25% investment tax credit; that you go back on all the employees you had and get all those kind of credits. And he came up if I spent a dollar, I could get $0.25 task what if every dollar spent. I wound up spending enough to where they sent me $350,000. So, I spent $1.2 million or something on the house and that was by August.

     Okay. Well, ever since then I had a cousin he took the improvements, took the 25% credit, and I was going to do the same thing for Jimmy Graham because my cousin gave me a quick claim so, even though I was paying for everything, they were getting the tax credit. And a benefit tax credit was coming to me because I was using the house.

     Well, the problem is the Treasure is very persnickety. We could lease it from Jesse, but to use tax credit, the tax credit had to be property that I owned. You cannot use taxpayer to benefit somebody else. So right now, so to make a point, the city of Ozark cannot spend one penny of taxpayer’s money on that house because there is a cloudy title, and a quiet title must return the title back to me because of no eminent domain tribunal procedure to transfer title. It’s an absolute operation of law.

     So, I don’t want to cause anybody any trouble. I just want to do what I’m supposed to do, and that is to preserve the property and that’s all.

     And so, I’ve done everything I could. I’ve gone back and researched a look what J.D. Holman did, how Isom McGee got killed by lynching because the sons wanted Isom’s Louisiana property that J.D. Holman had made the purchase available for him. All right. So, where he had gone to the Supreme Court and had a ruling in 1935, he and the (unintelligible) reporter asked for clarification

MR. MIZELL: J.D. Holman and his wife, Sudie Holman and his brother Y. Allen Holman, suffice it to say, that there is a great history that nobody knew about, and I did know about it before  this court came about or in this case rather.

     So, all I’m saying is if Wells Fargo had the right to foreclose, let them do it after a temporary injunction has taken their right way. Let them come forward with the Rule 17 and prove that they are PARTY OF INTEREST because they are IN POSSESSION OF THE OBLIGATION.

     And the law clearly says that only the one who holds the obligation can foreclose. Well, Wells Fargo will tell you they hold the obligation. They’ll say that, but really what they say is not  in the Uniform Commercial Code and throughout all the other law is that has to do with the HOLDER IN DUE COURSE. In other words, you got to have the note by possession. It must be in your hand. In fact, in your hand when you start foreclosing proceedings.

     Here’s another thing. I begged them to let me come with Jimmy Graham and pay them the money and remove the "cloud" over the title, and they wouldn’t do it.

   And the law clearly says that before they could commence foreclosure, they must have a face-to-face meeting with you. And they absolutely refused.

     So, how can I do it? What can I do? Who is brave enough to enforce the law on Wells Fargo? A 20 year jail sentence does not slow their officials.  The FBI says they could not get a jury trial conviction against the deep pocketed Wells Fargo's stable of attorneys.

     So, I asked, why won’t you let me pay the note in total and then give me the original note, taking it out of circulation? Wells Fargo said that because the original note was never filed, (I think it’s some part of section 2071) says somebody that manipulates our etc. particular thing on file or remove it is subject to a three-year prison term plus so much fine. I’ve forgotten the fine. They said that since they didn’t file it, they didn’t have to give it to anybody.

     Well, I really don’t know what to do, really. If Mr. Graham’s money is no good, why is it in that Wells Fargo’s bank. And if Wells Fargo won’t let me pay, the note clearly says the debt is evidenced by the note.

     If they don’t have the note, there is no debt. Just that simple.

     The mortgage says you can prepay the note. You don’t have to wait for 30 years.

   So, I asked the Wells Fargo lady, I said, “Ma’am what if I continue to pay and we pay it all through the course of time, will I get the note when I completed the contract?”

     She said, “No. You will never see the note again.

   I said, “Ma’am you don’t understand, the Uniform Commercial Code clearly says that you must SURRENDER THE INSTRUMENT WHEN FULL PAYMENT IS MADE.”

     She said, “We are not subject to Uniform Commercial Code.” What can I do?

     I was not going to steal money from Wells Fargo. I didn’t steal any money from SouthTrust or AmSouth or Farmers and Merchants Bank.

     I have an obligation to pay that debt, and I made every effort I could. Wells Fargo installed obstacles to keep me from paying the debt.

     And number two, as sworn in that note, I swore to a BORROWERS COVENANT. A borrowers covenant, that’s like standing before God saying, “God I’m going to do this. I vow that I will do it.”

     And you know what that covenant says, DEFEND GENERALLY THE TITLE. And the title cannot be defended if there is no note, if Wells Fargo does not come forward with the note.

     And today, they filed 10 days ago for summary judgment, and they defile the law and said a piece of paper was the same as a note, when it is not so, that summary judgment has to be thrown out, that motion that they have to dismiss has to be thrown out because Wells Fargo is not presenting the debt note that they sld to FHMLC.

Now, one final thing and I will hush. A few years back I had a shady conversation with some people, very notable people who have lots of money and they wanted to develop Ozark.

     We talked about a gospel retreat near Perry between Enterprise and Opp. We were going to use that tax credit including taking care of the Holman House, plus going down to the train station and renovate some other house around.

     We needed a 5000-foot airport runway, which we just had. And the investors offered me at least $659,000 which was the appraised value for property tax purposes. After negotiation, I was given earnest money.

     We go back and talk some other place, later went out to Las Vegas, Alice Faye was with me, and we were shown example of the expected renovation standard to be used. We visited the hotel where Elvis Presley, Michael Jackson, and, at that time, Barry Manilow stayed. $60 million had been spent in renovating the top floor of the Hilton, which is the only casino in Las Vegas that had no debt and they had 5 acres. They had a lot of tax problems.

     So, it was decided we could develop the idea where, with something, and it would take a lot of people to you know provide the service that would transpire.

     People like to tour the South and whatever was needed to continue Ozark's growth would be dedicated.

     The problem was that the "gambling money" was in the distant state. And when my partner in another business told, what I called the Dixon Mafia, they said we can’t wait any longer.

     We’ve got to take control of the gaming operation in Alabama and were going to do it here. We going to build a thing called Country Crossing. First thing we got to do is, we got to take Jack’s stuff away from him. There won’t be anything to come to.

     So, they came and said we want to buy your radio station. I said, “It is not for sale.” The radio was without debt service.

     Robert Jerkin’s son looked at me and said, “Look, if you don’t sale it to them, they will steal it from you.”.

     I laughed and said, “They’re not going to do that.”

     They not only came and stole the radio; they stole the TV.

     A Gentleman was sent one afternoon to look at the Holman House. “He said, “The bank had told him that, the Citizen’s Bank, was fixing to take possession of the house.”

     I ran him off. So, I may have done bad. That was not hospitable.

     So, the long and short of it, is that they became an obstacle to the whole City of Ozark and to everyone in this area. I know some bad things may have happened with the other stuff and with them pushing gambling and all that kind of stuff. I’m not responsible for that. I don’t know. But, anyway, I did the best I could.

     I would have paid. And I think since they didn’t have the right to possess, they went ahead and took police officers and law enforcement people and put them there to make sure it wasn’t as appeared. It had “the color of law” to it but the law said you can’t do a private foreclosure when law enforcement is present. If you do that, then you deny a constitutional right of due process. The foreclosure was wrongful in many ways. Wells Fargo had improperly refused full payment.  There could never be a default.

     The case was transferred to the federal court. The federal court said that it was a question of property and sent the case back to the state, let the state apply the law. So, the federal court decided that I couldn’t have any kind of suit against the law enforcement people because I wouldn’t say who those present at the foreclosure were. I wasn’t there. The affidavit of one in attendance that confirmed law enforcement presence was not considered.

     So, now I came back to file subpoenas because Wells Fargo said, “We are going to do nothing without subpoenas.” And I had to file subpoenas and asked each one of them to tell me what they had done, and so far, as I know, they haven’t said anything. We wrestle not against flesh and blood.

     Even though the petition was filed before the foreclosure, Wells Fargo called the petition a complaint. I called it a petition. The court was asked to investigate. For months Wells Fargo, they started running from it like scattered does, you know. Wells Fargo avoided service of process.

     Wells Fargo’s response was always in writing and addressed to a location that does not exist, to 385 E. Broad Street, an address that does not exist. I don’t get it.

      Last time I came to hearing, I came down here just to be told by the court that the case had been continued. I went upstairs to the clerk’s office and found the order for continuation on the clerk’s desk. I had never seen the continuation request.

     THE COURT: Well, thank you for your argument you might want to go by the clerk’s office and change your address record if you’re not getting mail from the court.

     MR. MIZELL: My address of record is absolutely perfect.

    THE COURT: Yeah, but things whatever is filed in the court of whatever orders I issue are sent out by the clerk to your address of record that they have.

     MR. MIZELL: I don’t know why they don’t use it. The clerk has it because I do get some stuff from the clerk. In all honestly, I just don’t get it from Wells Fargo’s attorney.

     THE COURT: Court: Okay, all right, Mr. Andrews.

     MR. ANDRESS: Your Honor, I still don’t really understand what the allegation are in this case I want to give the court some background as to what happened on June 9, 2003 Mr. Mizell entered into a note with Wells Fargo Mr. Mizell was not a party to the note, but he was on the mortgage only as, I guess they were married at the time. And under Alabama law he had to sign the mortgage in order for it to be enforceable, which he did. The note was not paid back, it was in default. And according to allegations, Mr. Mizell was going to have a third party take the assignment of the note, but he wanted to see the original note that Wells Fargo was said to possess note before he could pay it off the debt. That’s what they allege.

   And that, they can allege that, but the note doesn’t allow for giving the note, an unpaid note, an original document to another person to have pay it off. If Mr. James Graham wanted to pay off the note or take an assignment of the note, he was a third party to this transaction, he could have asked Wells Fargo, maybe they would have done it, maybe they wouldn’t have. They had no obligation to do any of this what he alleges.

     The only obligation was for Mr. Mizell to pay back the note, which he/she didn’t do. And there’s no allegation here that the note was current at the time of the foreclosure. It was not.

     But what they’re saying is allegations that somebody would have paid off the note if they would have gotten to see the original note before they paid it off and then they would have paid it off. Well, it doesn’t work that way and even if that happened, and for this, is our opposition to this motion to dismiss standard, so will take whatever they say it at this point true that doesn’t state a case against Wells Fargo you can’t change the rules to create a system and then file suit because a rule don’t that nobody agreed to work or followed,. And that’s what we have here there is no allegation that the foreclosure was improper; that they didn’t get notice under Alabama law or any notices required by the mortgage or that the sale wasn’t properly advertised or that the sale didn’t occur. There’s no allegation to that.

     And another thing, as to the foreclosure sale, the city of Ozark brought the property. So, now they are the person, they are the entity that owns the property. They paid for it at a foreclosure sale. And you would have had a one-year right of redemption where somebody could have come in and bought the property for exactly what was paid at foreclosure by the city of Ozark. So, that wasn’t done.

     And, you know, we don’t hear any of this and we get and this suit, filed in the federal court on a 1982 claim, was dismissed and sent to this court and Your Honor they don’t have the right parties, they don’t have any allegation that states claim under Alabama law.

     This shows me that the note had been soundly rejected by the court. This is a nonjudicial state. You don’t have to show somebody an original note in order to conduct a foreclosure. And so, that doesn’t state a claim. And then there is a foreclosure and that that somehow split the note. Your Honor, you see a lot of this with these pro se cases. It’s all over the Internet, and it’s been rejected also by Alabama Supreme Court in Cullman, this note splitting theory. And a foreclosure is not even note splitting. What a foreclosure does, it doesn’t separate from a mortgage, it distinguishes the debt if the foreclosure sale price is sufficient to extinguish the debt. It doesn’t split the noted, it ends the note. And it ends the mortgage because it transfers title to the entity that purchases the property at the foreclosure sale.

     So, Your Honor, this motion to set aside foreclosure should be denied. We have a motion for summary judgment the court will set, and we look forward to arguing that. And we also say if Mr. Mizell is going to pursue this further if the court doesn’t dismiss, you know, this case, then he needs to bring the right people and so we can just go ahead and handle this at once and be done with it.

     THE COURT: All right, sir. Thank you. Mr. Mizell have you any rebuttal?

   MR. MIZELL: Well, I think I filed that they did not comply with the contract. We are not asking about whether they split the note and the mortgage and all that stuff. The note was split because they don’t have it. The proven supposition is that three days after Wells Fargo got the note signed, that ends the Truth in Lending law, after rescission ends, they take the note then put it in a scan and it then becomes an electronic file. The original note is shredded. It no longer exists, it’s gone. I can't pay what doesn't appear and does not exist.

     Okay. Now, that would be fine if I had the money and didn’t have to go to Mr. Graham. But Mr. Graham is old-fashioned like the Ozark Baptist Church. When it paid in full the signed note, the event was reported in the Southern Star. The note was publicly burned. The burning was held at a church worship service.

     Mr. Graham thinks he’s got to see the note before he pays it. Wells Fargo said they didn’t have it to present it. So, what do I do? I’m between two things, the 20 century the 21st century, if you will. That’s my dilemma. I can’t pay for it if Mr. Graham wants to know, and I can’t pay for it if he doesn’t get the note after full payment. So, what am I going to do?

     And then we go to the bank over and over seeking the right to pay the note in full. In 2012, we were supposed to sit down here in the bank of Ozark building, which is now Wells Fargo, and give them the money, permission to take it out of Mr. Graham’s deposit account in Birmingham, and Wells Fargo was then to give me the paid note so I could give it to Mr. Graham. And I was going to make the mortgage where he could use work on the house with a 25% tax credit, and I was going to pay Mr. Graham 3% interest. If that had happened, we wouldn’t be here today. But on that day, the law says because we offered to pay it and had the money to pay with, that’s when the interest stopped. Wells Fargo said we were late. We were not late. They were just charging us interest against the law. So, this $22,000 worth of interest since 2012 is ours, Wells Fargo is the thief, that’s all. That’s what the law says. I didn’t say it. I don’t know if I’m right or wrong, but that’s what the law says.

   Okay. So, where’s the $22,000 that is taken by Wells Fargo? They could not refuse to take payment in full. They can’t take any more interest. They did anyway.

     Now, Mr. Andress was talking about the foreclosure being properly advertised in the paper. I can tell you that I paid $283 to get absolute proof in the paper that we did not consent because we were not in default. Wells Fargo knew we were not in default. We asked attorney Morris Hardwick and whatever, to let us pay the note. They sent us a letter saying you are in complete default, everything is due. I said, fine, bring us the note, we’ll pay it.

     Not a single response from them, not a word. Sent them again registered mail. No response. They sent somebody down here and auctioned the property. The auction was supposed to be at 11 am. I think it was conducted at 1:30 pm. Is something to be hidden, no exposure of what they were doing. The original note can’t be shown because it’s been destroyed.

     That’s just a fact now, if destruction of the original is not separation of the note and the mortgage, I don’t know what it is. Who all are to be sentenced to 20 years?

     If Wells Fargo contends that the note has not been destroyed, bring it here and stamp it paid in full and acknowledge that it is mine. I will own it. Wells Fargo will not.

     THE COURT: Mr. Mizell, let me interrupt you just a minute. Just make your argument to me, okay.

     MR. MIZELL: I’m sorry. His ears are indeed sensitive to facts.

     THE COURT: ---rather than to him.

     MR. MIZELL: I’m saying a fact that the note is my property especially since the auction paid the note in full.

     THE COURT: Yes, sir.

     MR. MIZELL: Wells Fargo sent a 1099A to the IRS saying that FMHLC was the lender and that I had abandoned the property. All Wells Fargo wants is unjust enrichment. That’s all. They could care less about the town, they could care less about me, they could care less about this court. When you send them something, they going to go out of their way to evade responsibility. There are not to give an account for their actions. They don’t work the case anymore. They moved to another case or whatever, that kind of stuff. Wells Fargo is populated with devious folks, that’s true. Sorry, it’s been a long time.

     THE COURT: All right. Well, I will take your motion and arguments that have been made today and consider those, and I’ll be issuing an order. And then I’ll also, depending on the decision of this motion, decide about setting the motion summary judgment. Okay.

     MR. MIZELL: Your Honor, I want to thank you. When we were at federal court, they turned down the volume so much nobody could hear.

     THE COURT: Yes, sir.

     MR. MIZELL: Had I not had special sound equipment; I could never have heard what was said. It took me many weeks to get the audio and then I transcribed it using Dragon. And so, I want to thank you. I don’t think anybody had any trouble hearing I apologize.

     THE COURT: No, I appreciate it. Thank you. We stand adjourned.

(End of proceedings)

REPORTER CERTIFICATE

STATE OF ALABAMA

DALE COUNTY

     I, Stephanie H. German, Court Reporter and Notary Public, State at large, do hereby certify that the foregoing transcript is a true and correct reproduction of the testimony heard on said occasion.

     WITNESS my hand this the 3rd day of April 2015

/s/ Stephanie H German

           STEPHANIE H. GERMAN-CSR

                                                 ACCR LICENSE # 87

                                                                    Filed DALE COUNTY

                                                                            April 15, 2015

FOR WHAT ITS WORTH

 

FOR WHAT ITS WORTH

     The real issue always at hand is distilled into one word, CONTROL. In the instant Quiet Title Action, Wells Fargo had sold the loan and was without lien yet took control so that the City of Ozark could take control of the property without an Eminent Domain procedure and appearing to gain control at a small fraction of the property value.

     In 2008, when earnest money had sealed a sale, Wells Fargo sabotaged the sale by reducing the property value to zero and making it unmarketable. Snipers on the roof and other law enforcement personnel were at the foreclosure auction to control the number of bidders, limiting the number to one.

     What do you call it when a bunch of companies colludes to set prices, fix markets, close off competition, capture regulators, and bribe politicians? We call it a cartel, right? Few have heard the term, BANKING CARTEL.

Nelson Rockefeller famously said, “The secret to success is to own nothing, but control everything.”

It is against equity to deprive freeman of the free disposal of their own property. Co. Litt. 223. See 1 Bouv. Inst. n. 455, 460.

     Big Central bank officials escape 20-year jail sentences because the corporations are considered by congress “too big to fail” even when the officials function as criminals making them what the FBI before congress has labeled as “criminal enterprises”. A multitude of crimes, at a minimum, avoid prosecution under Title 18 §1512(B) alter, destroy, mutilate, or conceal an object with intent to impair the object's integrity or availability for use in an official proceeding;

“Banking was conceived in iniquity and born in sin. Bankers own the earth; take it away from them but leave them with the power to create credit, and, with a flick of the pen, they will create enough money to buy it all back again. Take this power away from them and all great fortunes like mine will disappear, and they ought to disappear, for then this world would be a happier and better world to live in. But if you want to be slaves of bankers and pay the cost of your own slavery, then let the bankers control money and control credit.” - Lord Stamp, Director of the Bank of England, 1940.

     Slightly over the past decade, the one percent have amassed control of nearly forty-six percent of the nation’s assets up from less than ten percent two decades ago. Will “Proof of Claim” enforced by the Rule of Law prevail? Public officials work for the citizens not the other way around and especially not work for the CARTEL FICTION.

"It is not the function of our Government to keep the citizen from falling into error, it is the function of the citizen to keep the Government from falling into error."  American Communications Association v. Douds, 339 U.S. 332, 442 (1950).

“A jury could find it strange that those who insist that their conduct was proper and the intent pure went to such great lengths to hide it all from the light of day. From such secrecy much may be inferred.” Cox v. Adm”r U.S. Steel & Carnegie, 17 F.3d 1386, 1402 (11th Cir. 1994).

Act 1871 U S a Corporation

 

The Act of 1871: The “United States” Is a Corporation – There are Two Constitutions

Since the Act of 1871 which established the District of Columbia, we have been living under the UNITED STATES CORPORATION which is owned by certain international bankers and aristocracy of Europe and Britain.

In 1871 the Congress changed the name of the original Constitution by changing ONE WORD — and that was very significant as you will read.

Some people do not understand that ONE WORD or TWO WORDS difference in any “legal” document DO make the critical difference. But, Congress has known, and does know, this.

1871, February 21: Congress Passes an Act to Provide a Government for the District of Columbia, also known as the Act of 1871.

With no constitutional authority to do so, Congress creates a separate form of government for the District of Columbia, a ten mile square parcel of land (see, Acts of the Forty-first Congress,” Section 34, Session III, chapters 61 and 62).

The act — passed when the country was weakened and financially depleted in the aftermath of the Civil War — was a strategic move by foreign interests (international bankers) who were intent upon gaining a stranglehold on the coffers and neck of America.

Congress cut a deal with the international bankers (specifically Rothschilds of London) to incur a DEBT to said bankers. Because the bankers were not about to lend money to a floundering nation without serious stipulations, they devised a way to get their foot in the door of the United States.

The Act of 1871 formed a corporation called THE UNITED STATES. The corporation, OWNED by foreign interests, moved in and shoved the original Constitution into a dustbin. With the Act of 1871, the organic Constitution was defaced — in effect vandalized and sabotage — when the title was capitalized and the word “for” was changed to “of” in the title.

THE CONSTITUTION OF THE UNITED STATES OF AMERICA is the constitution of the incorporated UNITED STATES OF AMERICA.

It operates in an economic capacity and has been used to fool the People into thinking it governs the Republic. It does is not!

Capitalization is NOT insignificant when one is referring to a legal document. This seemingly “minor” alteration has had a major impact on every subsequent generation of Americans.

What Congress did by passing the Act of 1871 was create an entirely new document, a constitution for the government of the District of Columbia, an INCORPORATED government. This newly altered Constitution was not intended to benefit the Republic. It benefits only the corporation of the UNITED STATES OF AMERICA and operates entirely outside the original (organic) Constitution.

Instead of having absolute and unalienable rights guaranteed under the organic Constitution, we the people now have “relative” rights or privileges. One example is the Sovereign’s right to travel, which has now been transformed (under corporate government policy) into a “privilege” that requires citizens to be licensed.

By passing the Act of 1871, Congress committed TREASON against the People who were Sovereign under the grants and decrees of the Declaration of Independence and he organic Constitution.

The Act of 1871 became the FOUNDATION of all the treason since committed by government officials.