PETITION FOR WRIT OF MANDAMUS LOT 8

                                                                                                                            This Petition for a Writ of Mandamus is based on 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.

STATEMENT OF FACTS

     26-CV-2019-7 is a QUIET TITLE ACTION.

Alabama Property Rights and Remedies

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

 

All parties of interest have answered the complaint. Hearing was held before Judge Clark on June 19, 2019 at 9 am in the Dale County, Alabama Courthouse. Only one instrument that could impact question of superior title was filed. PHH Mortgage Corporation Services or Fannie Mae filed NO instrument that could impact title. William Fisher filed no instrument that could impact title.

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".

 

“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).

Federal Rule of Evidence Rule 1002

"[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)

     Superior Title can be ascertained only from the authenticated instruments that were timely filed with the Clerk. No court judgment has yet to be issued. The function of the court as to who holds superior title with rights of quiet enjoyment has not been determined or published.

     A mortgage has been ruled a private agreement with obligations that cannot be impaired. The superior title holder may lawfully say to anyone challenging the title, "Until you show title, you have no right to disturb me." The law is clear.

"No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the jurisdiction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence." Ableman v. Booth, 21 Howard 506 (1859).

     Judges hold office by virtue a “faithful performance of duty” surety bond that identifies any injured party as the beneficiary. The bond provides remedy for lawless injury apart from judicial court involvement. Any judge who forfeits his bond loses his job.

     In the instant case, no bond claim can be made for private bond remedy because Judge Clark is unbonded and is not performing the required duties of the office.

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.

"The law requires PROOF OF JURISDICTION to appear on the Record of the administrative agency and all administrative proceedings." Hagans v. Lavine, 415 U.S. 533 (1974)
Courts to be open; remedies for all injuries; impartiality of justice.

That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay.

“Judges’ personal feelings on foreclosures are irrelevant.  All that matters is that they continue to follow the law.”

     Also, a Mortgage Banker Bond is required that gives surety that the creditor will comply with the obligations of the mortgage, a mortgage that also outlines the security the borrower provides as remedy for his default.

     PHH Mortgages Corporation Services conducted a wrongful foreclosure without entitlement to the funds and on the contract that the law declares null and void. PHH has no Mortgage Banker Bond that can give remedy. Enforcement is now the function of a proper complaint in a court that issues a due process of law judgment.

HISTORY of DENIAL of RIGHT of REDEMPTION

     Citizens Bank of Enterprise, Alabama was the originator of the mortgage executed on November 5, 2002 by Vincent R. Hodges and wife, Susannah L. Hodges. The mortgage was recorded in the Office of the Judge of Probate of Dale County, Alabama,

In Book 372, Page 190. The mortgage was shortly thereafter transfer and assigned to PHH Mortgage Corporation Services. The assignment instrument from Citizens Bank (Transferor) to PHH (“Transferee”) was recorded in Book 189, Page 312 in the aforesaid Probate Office. The servicing of the note was transferred to PHH Mortgage Corporation as stated in a letter dated August 13, 2010 from Cynthia W. Williams, attorney with Sirote & Permutt foreclosing firm addressed to the Hodges. The balance then due was $129,200.04.

     On September 21, 2010, a foreclosure auction was wrongfully conducted by PHH MORTGAGE CORPORATION SERVICES due to Plaintiff contending that PHH failed to establish standing to foreclose, having no rights of a holder-in-due course and possessing no instrument at the time the non-judicial foreclosure proceedings began.

     No writing disputing the validity of the loan was mailed. Since PHH Mortgage Corporation Services was no longer the holder-in-due course, the only available option then was for the Plaintiff to voice the highest cash bid at the auction.

     The Plaintiff was present at the auction along with a witness, Billy Ray Hall. The Plaintiff’s bid, thought superior by the plaintiff, was not accepted by the auctioneer, Aaron Warner, attorney who could not accept the bid even after his consultation with Cynthia Williams by telephone. She confirmed that the plaintiff’s bid, with said qualifications that required instrument surrender after full payment, could not be accepted. PHH was not in possession of the debt instrument but was acting as servicer only. The identity of the holder-in-due course was a condition accompanying the plaintiff’s bid. The bid with said condition could not be accepted. Only the holder in due course can foreclose and that bears with it a right of redemption.

     Whereupon, Aaron Warner, auctioneer who gave no reasonable evidence of authority to do so, stated himself to be representative of the absent Fannie Mae (Federal National Mortgage Corporation). Nonetheless, Mr. Warner proceeded to cry the accepted credit (no cash bid) bid on behalf of Fannie Mae in the credit amount of $132,962.89. Mr. Warner conducted non-judicial foreclosure proceedings without ensuring that either the promissory note or the mortgage document were properly endorsed or assigned and, as necessary, in the possession of the appropriate party at the appropriate time. Without possession PHH cannot prove superior title and could not foreclose.

     Redemption rights have not been allowed to be exercised because the identity of the true holder-in-due course has not been revealed. PHH did not surrender the paid-in- full note after the account note was satisfied from the proceeds of the auction credit bid. (See Ala. Code § 7-3-501(b)(2) PRESENTMENT. Surrender the instrument if full payment is made.) NO transfer assignment was recorded. NO $12.50 fee paid.

WHY?

FANNIE MAE’S INSTRUCTION TO PHH, SERVICER

Fannie Mae E-3.2-09: Conducting Foreclosure Proceedings

Conducting Foreclosure Proceedings When the Servicer Is the Mortgagee of Record.

     When the servicer is the mortgagee of record for a mortgage loan, the jurisdiction in which the security property is located will affect how the foreclosure proceedings are conducted or initiated.

     In most states, the law firm must initiate the proceedings in the servicer's name when the servicer is the mortgagee of record or in the participating lender's name when the servicer is not the mortgagee of record for a participation pool mortgage loan. The law firm must subsequently have title vested in Fannie Mae's name in a manner that will not result in the imposition of a transfer tax.

     The servicer and the law firm must determine the most appropriate method to use in each jurisdiction.

     In any state or jurisdiction in which the foreclosure proceedings must be conducted in Fannie Mae’s name to prevent the imposition of a transfer tax (such as Rhode Island; New Hampshire; Maine; or Orleans Parish, Louisiana), an assignment of the mortgage or deed of trust to Fannie Mae must be prepared and recorded in a timely manner to avoid any delays in the initiation of the foreclosure proceedings. If the servicer believes that a foreclosure proceeding must be conducted in Fannie Mae’s name in any other jurisdiction to prevent the imposition of a transfer tax, the servicer must contact Fannie Mae’s Legal department (see F-4-03, List of Contacts) for permission to do so.

     When a document custodian has custody of an original unrecorded assignment of the mortgage to Fannie Mae, the servicer may either request return of that document so it can be recorded or prepare a new assignment if doing so will expedite the process.

     Once the assignment to Fannie Mae has been recorded, the foreclosure proceedings must be conducted in Fannie Mae’s name.

 

     Petition under §13A-9-12(a) was filed by the Plaintiff in 2017. The Petition to Nullify and Expunge from Official Record Filing of False or Fraudulent Instrument was filed in Miscellaneous Book 2, page 225 in CASE NO 17-218. The Case No 17-218 specifically sought the nullification of FORECLOSURE DEED recorded Deed Book 267, page 152 as filed by Aaron Warner, Auctioneer that conveyed the property to Fannie Mae a/k/a Federal National Mortgage Association. The case did not address Deed Book 270, page 208, thereby the motion by Mr. Fisher was not appropriate to the case. Instead, the order, issued on October 11, 2017 by Sharon A. Michalic, Probate Judge, was ordered outside the issue in question. The validity of Deed Book 267, page 152 remains unresolved and, in the opinion of the Plaintiff, is a false instrument. The order, reflecting Judge Michalic’s acceptance of a MOTION TO STRIKE OR DENY as filed on behalf of Mr. Fisher, was about an instrument NOT at issue before the court. The order and code shown below reinforce the need for a quiet title action complaint 26-CV-19-7. (See EXHIBIT EVANS for Fisher MOTION TO STRIKE OR DENY in CASE NO. 17-218 and see EXHIBIT PJ for ORDER ON MOTION TO STRIKE OR DENY by Judge Sharon A. Michalic dated 11 October 2017.)

Alabama Code Title 13A. Criminal Code § 13A-9-12

(e)…..and shall state that any additional proof of the validity of the lien or instrument shall be filed with the recording official within 14 days of the date of mailing the notice and that the failure to do so could result in the lien or instrument being nullified or expunged…….The remedy and procedure provided in this subsection is not exclusive or mandatory.  Nothing in this subsection shall prevent the enforcement or challenge of any recorded lien or instrument as may otherwise be allowed by law.  Nothing in this section alters or modifies any other requirements for the filing, enforcement, or challenge of any lien or instrument required or allowed by law.

 

STATEMENT OF RELIEF SOUGHT AND ISSUES PRESENTED

 

     Three things are needed for a public official to hold office. He needs an OATH, a FAITHFUL PERFORMANCE BOND, and A COMMISSION.

     For decades now, Alabama has the largest number of public officials holding office unlawfully. It is a fact that the State of Alabama provides a blanket bond for every individual ON THE STATE PAYROLL. This bond is a payment bond with the state of Alabama being the sole beneficiary.

     On the other hand, only a select few have the required and properly filed faithful performance bond. A faithful performance bond designates the beneficiary as anyone injured by an OFFICIAL act or act of omission of OFFICIAL’S duty by holding of a public official office.

     This petition for a writ of mandamus focuses on two issues, a need for a lawfully seated judge in this instant quiet title action complaint 26-CV-19-7, and a court judgment based on fact witnesses (no jury) that PROVE THE CLAIM of the superior title holder.

IS A FAITHFUL PERFORMANCE BOND REQUIRED FOR A JUDGE?

     First, Judge Kimberly Clark has NO FAITHFUL PERFORMANCE BOND. She is not alone. The vast majority of all Alabama Public Officials are without filed FAITHFUL PERFORMANCE BOND. The oath of office is defiled by unbonded officials ignoring compliance with the demands of the law for public official bonds. In fact, the Secretary of State has NO bond located at the Auditor’s office as required by law. Ironically, the Secretary of State is to have bonds for every official organized for easy access when under inspection.

     Relief can be granted by the designation of a lawfully bonded and lawfully seated judge able to resolve a title question; a dispute governed by public law.

     Second, a Quiet Title Action draws a JUDGMENT OF THE COURT. Said sought relief can also be granted pursuant to the demand for the RULE OF LAW by this court.

     Judge Kimberly Clark has no “faithful performance bond” that can be examined. Proof of facts must be present. The absence of facts prevent judgment.
     Like unto all state employees, Judge Clark has a “payment bond” that the single beneficiary, the State of Alabama, purchases for blanket coverage of all employees of the state who receive a state issued paycheck. Only a select few have “faithful performance bond”, mostly county probate judges. (See sample EXHIBIT BONDS.)
Section 36-5-18

Legal effect of official bonds.

(a) Every official bond is obligatory on the principal and sureties thereon for:

(1) Every breach of the condition during the time the officer continues in office or discharges any of the duties thereof;

(2) The faithful discharge of any duties which may be required of such officer by any law passed subsequently to the execution of such bond, although no such condition is expressed therein; and

(3) The use and benefit of every person who is injured, as well by any wrongful act committed under color of his office as by his failure to perform or the improper or neglectful performance of those duties imposed by law.

(b) The words, "for the use and benefit of every person injured," as used in subsection (a) of this section, shall include all person having a direct and proximate interest in the official act or omission and all persons connected with such official act or omission, by estate or interest.

 

     Generally speaking, if an officer of the court causes dishonor, their bond must be forfeited to cure their dishonor. Any officer of the court who forfeits their bond loses their job.

Alabama Code Title 36. Public Officers and Employees § 36-5-3

     Every official bond of a county or municipal officer, agent or employee required by law to be filed with any public officer must be by such officer recorded word for word in a well-bound book and properly indexed.

     Any public official holding office without the legally required bonds must vacate the said office and a bonded replacement be installed.

 

Alabama Code Title 36. Public Officers and Employees § 36-5-1

The official bond of every state official, agent or employee, except the bond of the Secretary of State, must be filed in the office of the Secretary of State and recorded in a fair hand or by printing the same or by the use of a typewriter or other writing or printing or photostatic machine, word for word in a well-bound book or books and indexed in alphabetical order according to the title of the office, and all of said bonds shall remain on file and in the custody of the Secretary of State, except the bond of the Secretary of State, which shall be filed, recorded and remain in the custody of the Auditor.

Public Official Bonds guarantee taxpayers that the official will do what the law requires.

     A public official is expected to “faithfully perform” the duties of the office. For this reason, bonding public officials is highly important. It isn’t enough to simply buy honesty insurance. “Faithful performance” is not synonymous with “honesty.” It may include honesty along with many other important factors.

         Public Employee Bonds are also available for bonding the subordinates of the public official (those people who are not required by statute to be bonded). Those subordinates need to be bonded for dishonesty only.

     Public Official Bonds maybe written for individuals or, where the law allows, on a blanket bond form.

Alabama Code Title 36. Public Officers and Employees § 36-5-2

In all cases, official bonds must be filed in the proper office within 40 days after the declaration of election or after the appointment to office, except bonds of tax assessors and tax collectors which shall be filed on or before September 1 next after their election or appointment.

Alabama Code Title 36. Public Officers and Employees § 36-5-3

     Every official bond of a county or municipal officer, agent or employee required by law to be filed with any public officer must be by such officer recorded word for word in a well-bound book and properly indexed.

     Any public official holding office without the legally required bonds must vacate the said office and a bonded replacement be installed.

 

ALA CODE § 11-2-3 : FILING AND RECORDATION OF BONDS OF COUNTY OFFICERS AND EMPLOYEES

Upon the failure of such principal to give such bond within the time specified in such notice, he vacates his office, and the official, county commission, board or commission giving such notice must at once certify such vacation to the appointing power who must fill the vacancy.

 

     A copy of this Petition for Writ of Mandamus is being mailed to Dale County District Attorney who is charged with investigation of such issues. This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Section 36-5-16

Notification of district attorney of failure of public officer to file bond.

If any public officer required by law to give bond fails to file the same in the proper office within the time prescribed, notice of such failure must be given by the officer in whose office such bond is required to be filed, by or during the first two days of the session of the circuit court held in the county in which the officer so failing resides next after such failure to the district attorney of the circuit to which such county belongs.

 

     Second issue, Dale County Circuit Judge Kimberly Clark has issued NO required judgment. Instruments or lack of instruments that could impact the superior title question have already been filed and hearing held. All that is left undone is a court judgment that follows the instruments being authenticated by the Court Clerk, then the authenticated instruments filed can draw to it the judgment of the court.

     PHH Mortgages Corporation Services filed NO instrument for consideration because PHH possessed NO instrument that could be filed with the clerk. PHH transferred the note, was paid and was no longer the holder in due course in possession of the instrument, therefore PHH could not foreclose in its name.

     Haywood Jackson Mizell states a well-established truth that is central to the issue of the Writ of Mandamus in case 26-Cv-2019-000007.00 Quiet Title Action.And as it is appointed unto men once to die, but after this the judgment:” Hebrews 9:27 (KJV). Where is the Judgment? Enoch never died but faces judgment. Responsible Judges make judgments.

     There is only one way to avoid judgment, “good were it for that man if he had never been born”. Mark 14:21 (KJV)

   In the Quiet Title Action, 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. Filed timely with the Dale County Clerk of Court are all the instruments worthy of consideration for the judgment of the court as to who has Superior Title. Now is the time for said judgment.

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;

 

CONCLUSION

 

     A Judge is required to post faithful performance bond.

 

     A quiet Title Action draws the judgment of the court and court judgments confirm a null and void contract.

     This Petition for a Writ of Mandamus seeks both.

 

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.

 

     Respondents have failed to do an imperative duty to surrender the instrument:

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

       Surrender the instrument if full payment is made.

 

     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.

 

     Judge not according to the appearance but judge righteous judgment. John 7:24

    

     Petition for Writ of Mandamus is the only relief known to Haywood Jackson Mizell.

     Such Mandamus will not represent any harm or undue hardship on PHH/Respondent but is of paramount importance and crucial for Mizell/Petitioner 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.

     PHH Mortgages Corporation Services 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 right of redemption of the Petitioner 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 mortgage copy could be false, 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, Petitioner respectfully request immediate transportation of the original 2002 promissory note and mortgage that establish standing for claims made by PHH Mortgage Corporation Services and that gain for the court subject-matter jurisdiction, plus the instrument in question as stored electronically, as well as 2002 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 instruments can be performed by an independent document laboratory.

     There is no hardship on the Respondents or Kimberly A. Clark, Judge, as Respondent 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, Petitioner will be greatly prejudiced, as his right of redemption is intimately connected to the “original” instrument in question. PHH never introduced even an alleged certified copy as proof of existence of the original instrument in question. PHH declares itself to have already been paid. Without access to the original, Petitioner cannot disprove allegations by the Respondents. The foreclosure was conducted based on a null and void contract. It was wrongful under an OPERATION OF LAW.                  

                           

                         Respectfully submitted,      

 

                                                                                                                      _______________________________

                                                                                                                       Haywood Jackson Mizell, pro persona

                                  

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