PLAINTIFF’S MOTION TO DISMISS FOR LACK

OF SUBJECT MATTER JURISDICTION

 

Plaintiff, HAYWOOD JACKSON MIZELL, pro se moves the Court to RESCIND FORECLOSURE SALE AND CANCEL FORECLOSURE DEED for LACK OF SUBJECT MATTER JURISDICTION under authority of Alabama Rules of Civil Procedure, Rule 1.140(b)(1) and shows:

1.       This Court lacks subject matter jurisdiction to proceed. Subject matter jurisdiction has never been established on the record. The jurisdictional question can be raised at any time and can never be time-barred. "A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter any authority exercised is a usurped authority and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible." Bradley v. Fisher,13 Wall 335, 351, 352. A deed or a bond found with the debtor is presumed to be paid.

2.       The Court should dismiss this action pursuant to Rules 1.210(a) and 1.140(7) of the Alabama Rules of Civil Procedure because the record is clear from the promissory note submitted as evidence that a person other than Defendant is the true owner of the claim sued upon and that Defendant is not the real party in interest and is not shown to be authorized to maintain this foreclosure action.

3.       In Alabama, the prosecution of a foreclosure action is by the owner and holder of the mortgage and the note. Defendant is not entitled to maintain this action in which it seeks to foreclose on a note which Defendant does not own. ALABAMA UNIFORM SECURITIES ACT

Evidence of indebtedness secured by a mortgage must be sold as a unit. pg 46 Paragraph 11(a).          Instruments are separated and recorded falsely showing Wells Fargo Bank, N.A. who waives a worthless mortgage security document to possess no instrument that can be enforced.

FHLMC is the actual owner of the enforceable instrument that is now an unenforceable unsecured check.

         “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.

4.       Defendant, WELLS FARGO BANK, N. A., alleges that it owns and holds the subject note and mortgage with no assignment. There is no evidence or testimony supporting an assignment. In fact, all evidence and testimony specifically and conclusively demonstrates the opposite. “WITHOUT RECOURSE” stamp confirmed the sale signed by a vice-president. However, for there to be a valid assignment, there must be more than just assignment of the deed alone; the note must also be assigned. "[t]he note and mortgage are inseparable; the former as essential, the latter as an incident"; adding that "[a]n assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity". Carpenter v. Longan, 83 U.S. 271, 274, 21 L. Ed. 313 (1872).

5.       Rule 1.210(a) of the Alabama Rules of Civil Procedure provides, in pertinent part:

Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought. Defendant in this action meets none of these criteria.

6.       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.

Mills v. Duryee, 11 U.S. (7Cranch) 481 (1813) Merits of case settled by courts of one state must be recognized by the courts of other states. In Re: “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)

7.       No Alabama case holds that a separate entity can maintain suit on a note payable to another entity unless the requirements of Rule 1.210(a) of the Alabama Rules of Civil Procedure and applicable Alabama law are met. § 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.

8.        For clarity, the wording in Fla.R.Civ.P. Rule 1.130(a) requires a Defendant to attach copies of all bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought to its complaint. Plaintiff has failed to attach any debt instrument that supports its pleadings or the claim advanced by its filed false mortgage document.

9.       As a result, although Defendant names WELLS FARGO BANK, N. A. as the owner of the promissory note, the promissory note submitted as evidence conflicts with this allegation, as when the Plaintiff checked the court file, there was no evidence of such instruments.

10.     When exhibits are inconsistent with Defendant’s allegations of material fact as to who the real party in interest is, such allegations cancel each other out. Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla. 3rd DCA 1983).

11.     Defendant is not the real party in interest and is not shown to be authorized to bring this action. Wells Fargo Bank, N. A.’s 1099A filing with the IRS confirms that FHMLC is the real party of interest. Some Florida cases describes better the issue surrounding standing and subject matter jurisdiction.

In re: Shelter Development Group, Inc., 50 B.R. 588 (Bankr.S.D.Fla. 1985) [It is axiomatic that a suit cannot be prosecuted to foreclose a mortgage which secures the payment of a promissory note, unless the Defendant actually holds the original note, citing Downing v. First National Bank of Lake City, 81 So.2d 486 (Fla. 1955)]; Your Construction Center, Inc. v. Gross, 316 So. 2d 596 (Fla. 4th DCA 1975), See also 37 Fla. Jur. Mortgages and Deeds of Trust ’240 (One who does not have the ownership, possession, or the right to possession of the mortgage and the obligation secured by it, may not foreclose the mortgage)

           Other cases with similar opinions draw the same conclusion. “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.”

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

12.     Defendant’s pleadings fail to contain sufficient facts to establish who the actual Defendant is and its relationship to Plaintiff and to the claim for foreclosure of the subject promissory note. The record also fails to sufficiently identify who Defendant is and fails to allege facts sufficient to determine the standing of Defendant.  

13.     The record does not show that WELLS FARGO BANK, N. A. has standing to maintain an action in the State of Alabama. At the alleged time of the contract closing date WELLS FARGO BANK, N. A. was not registered to do business in the state. In order for a Court to have in personam jurisdiction over the parties, the record, if challenged, must show that the challenged party has sufficient minimum contacts with the forum state to bestow in personam jurisdiction on the Court. Alabama Rules of Civil Procedure, rule 1.120(A).

           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".

14.     The record does not show that WELLS FARGO BANK, N. A. is authorized as an entity to own the promissory note. It claims to be a mortgage servicer not a lender. Defendant appears to be operating ultra vires in this action.

15.     Neither WELLS FARGO BANK, N. A. nor its attorneys, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C., have validated the alleged debt as required by the Fair Debt Collection Practices Act. They refuse to identify, even with the court clerk, the owner of the alleged debt and refuse the actual debt owner to provide an accurate accounting of the alleged debt. Such lack of validation prohibits these debt collectors from taking any action to collect on the alleged debt.

16.     There is no evidence that Defendant has forwarded any payments to the actual owner of the note, who the evidence suggests may have been defrauded by Defendant.

17.     The record is replete with Defendant and its attorneys committing numerous frauds upon the Court. The evidence specifying these frauds remain entirely unrefuted. Based on the record, the Court should conclude that this action amounts to nothing less than criminal extortion and attempted grand theft by Defendant against Plaintiff. The Court cannot be in a position of enabling Defendant and its attorneys to commit felony crimes.

         WHEREFORE, Plaintiff requests that this Wrongful Foreclosure is due to be rescinded and the Foreclosure Deed canceled for Defendant’s lack of standing and the court’s lack of subject matter jurisdiction. All business actions by the Defendant are governed by Generally Accepted Accounting Principles as required by and under license with the US Treasury.

With no authenticated instrument on record with the Clerk even now, and in the absence of an authenticated instrument to surrender if full payment is made, Wells Fargo Bank, N.A’s actions worked to block the Plaintiff’s 2008 sale of the mortgaged property. Price accompanied with earnest money was more than double the sale price secured at the auction conducted in 1913. The 1913 auction was conducted in the presence of Law Enforcement denying Plaintiff due process rights. There was no Judge’s order.

Wells Fargo Bank, N. A. refused full payment because it forever had in its possession NO debt instrument demanding payment. The absent promissory note was transferred without assignment recordation. Separation of note from the mortgage security made both instruments worthless by alteration and unenforceable. Defendant’s refusal of contractually allowed prepayment was non-compliance with GAAP, TILA, Ala. R. Civ. P. Rule 56(3) and other said prevailing law.

           The required instrument filing with the court clerk is emphatically stated in Johnston v. Hudlett, 32 So. 3d 700 (Fla 4d DCA 2010) “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.”

           Carpenter v. Longan, 83 U.S. 271, 274, 21 L. Ed. 313 (1872) However, for there to be a valid assignment, there must be more than just assignment of the deed alone; the note must also be assigned. "[t]he note and mortgage are inseparable; the former as essential, the latter as an incident"; adding that "[a]n assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity".

             Wells Fargo Bank, BN. A. did not surrender the evidence of debt, even after a wrongful foreclosure debt satisfaction, simply because it cannot surrender what it does not have, especially when examination by an independent document laboratory is demanded. To counterfeit is to commit a crime most serious.

               Recognizing that the Plaintiff is pro se, the Supreme Court has instructed the district courts to construe pro se complaints liberally and to apply a more flexible standard in determining the sufficiency of a pro se complaint than they would in reviewing a pleading submitted by counsel. See e.g., Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S.Ct. 173, 175-76, 66 L.Ed.2d 163 (1980) (per curiam); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972) (per curiam); see also Elliott v. Bronson, 872 F.2d 20, 21 (2d Cir.1989) (per curiam). 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)).

Considering these principles regarding standing and subject matter jurisdiction, we think that the Dale County Circuit Court should not have dismissed with prejudice Mizell’s complaints without affording him leave to plead again; specifically: to file a new legal pleading appropriate under the circumstances to determine if the foreclosure is legally insufficient.

In summary, Federal Rules of Civil Procedure Rule 1002 and Gamble’s Alabama Rules of Evidence 2d Rule 1002 Best Evidence were Rules that both the federal and the state courts, including the Dale County Circuit Court, ignored.

What do other state and Federal Courts do?(The following court case was unpublished and hidden from the public) Wells Fargo v. Reyes, 867 N.Y.S.2d 21 (2008). Dismissed with prejudice, Fraud on Court & Sanctions. Wells Fargo never owned the Mortgage.

Again, Mills v. Duryee, 11 U.S. (7Cranch) 481 (1813) Merits of case settled by courts of one state must be recognized by the courts of other states. EVEN ALABAMA. Funds denied or stolen: $560,000.00.

Profits from greed was the what and why for the retention of the note by Wells Fargo, and the reason for the unsworn and unverified attorney statements so that the “simple minded” Dale County Circuit Judges could be deceived.

 

Great return on ZERO investment

$289,000 for “accounting control fraud” on the investment banking side.

$231,000 from insurance claim in the event of “default”.

$289,000 from sale of instrument to FHLMC without a filed assignment.

$809,000 unlawful enrichment by Wells Fargo.

Costs for enabler services are unknown.

 

Haywood Jackson Mizell

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