NJ: GAME OVER — STANDING REQUIRED — NO PRETENDER LENDERS ALLOWED — PERSONAL KNOWLEDGE REQUIRED TO AUTHENTICATE

ONE ON ONE WITH NEIL GARFIELD ONE ON ONE WITH NEIL GARFIELD

COMBO ANALYSIS TITLE AND SECURITIZATION

BORROWER APPEARED PRO SE

GAME OVER: EVIDENCE REQUIRED, NOT PRESUMPTIONS

EVEN IF HOLDER, THEY ARE NOT HOLDER IN DUE COURSE; DEFENSES APPLY

SEE 01.28.2011 NJ CT OF APPEALS REVERSE NO STANDING -WELLS-FARGO-BANK-N-A-As-Trustee-Respondent-V-SANDRA-a-FORD-Appellant[1]

NOTABLE QUOTES:

This appeal presents significant issues regarding the evidence required (E.S.) to establish the standing of an alleged assignee of a mortgage and negotiable note to maintain a foreclosure action.

Wells Fargo claims that it acquired the status of a holder in due course as a result of this assignment and therefore is not subject to any of the defenses defendant may have been able to assert against Argent.

Wells Fargo asserted that Argent had assigned the mortgage and note to Wells Fargo but that the assignment had not yet been recorded.

Wells Fargo subsequently filed a motion for summary judgment. This motion was supported by a certification of Josh Baxley, who identified himself as “Supervisor of Fidelity National as an attorney in fact for HomEq Servicing Corporation as attorney in fact for [Wells Fargo].”

Baxley’s certification stated: “I have knowledge of the amount due Plaintiff for principal, interest and/or other charges pursuant to the mortgage due upon the mortgage made by Sandra A. Ford dated March 6, 2005, given to Argent Mortgage Company, LLC, to secure the sum of $403,750.00.” Baxley did not indicate the source of this purported knowledge. Baxley’s certification also alleged that Wells Fargo is “the holder and owner of the said Note/Bond and Mortgage”

The documents defendant alleged were forgeries included a purported handwritten note by her stating that she was employed by Bergen Medical Center at a monthly salary of $9500, even though her actual income was only approximately $10,000 per year.
Defendant also alleged that “[t]he estimate for closing fees that was given to me prior to closing was around $13,000.00 and the Good Faith Estimate of Closing Costs was for $13,673.90 but on the closing statement they were $36,259.06.”

On appeal, defendant argues that (1) Wells Fargo failed to establish that it is the holder of the negotiable note she gave to Argent and therefore lacks standing to pursue this foreclosure action; (2) even if Wells Fargo is the holder of the note, it failed to establish that it is a holder in due course and therefore, the trial court erred in concluding that Wells Fargo is not subject to the defenses asserted by defendant based on Argent’s alleged predatory and fraudulent acts in connection with execution of the mortgage and note; and (3) even if Wells Fargo is a holder in due course, it still would be subject to certain defenses and statutory claims defendant asserted in her answer and counterclaim.

We conclude that Wells Fargo failed to establish its standing to pursue this foreclosure action. Therefore, the summary judgment in Wells Fargo’s favor must be reversed and the case remanded to the trial court. This conclusion makes it unnecessary to address defendant’s other arguments.

we note that Wells Fargo argues in its answering brief that “[defendant] is estopped to contest Wells Fargo’s standing”; “defendant’s brief exceeds the scope of this appeal,” and “[defendant's] arguments are counterintuitive.” These arguments are clearly without merit and do not warrant discussion. R. 2:11-3(e)(1)(E).
“As a general proposition, a party seeking to foreclose a mortgage must own or control the underlying debt.” Bank of N.Y. v. Raftogianis, ___ N.J. Super. ___, ___ (Ch. Div. 2010) (slip op. at 3). In the absence of a showing of such ownership or control, the plaintiff lacks standing to proceed with the foreclosure action and the complaint must be dismissed. See id. at ___ (slip op. at 35-36).1

If a debt is evidenced by a negotiable instrument, such as the note executed by defendant, the answer to this question is governed by Article III of the Uniform Commercial Code (UCC), N.J.S.A. 12A:3-101 to -605, in particular N.J.S.A. 12A:3-301. See generally Raftogianis, supra, ___ N.J. Super. at ___ (slip op. at 3-8). N.J.S.A. 12A:3-301 states in pertinent part:
“Person entitled to enforce” an instrument means [1] the holder of the instrument, [2] a nonholder in possession of the instrument who has the rights of the holder, or [3] a person not in possession of the instrument who is entitled to enforce the instrument pursuant to [N.J.S.A.]12A:3-309 or subsection d. of [N.J.S.A.] 12A:3-418. [EDITOR'S NOTE: A KEY POINT NOT RAISED BY THE HOMEOWNER NOR DISCUSSED BY THE COURT IS THAT ARGENT DID NOT LOAN THE MONEY CONTRARY TO REPRESENTATIONS AT CLOSING. THEREFORE THE DEBT IS NOT EVIDENCED BY A NEGOTIABLE INSTRUMENT. HENCE THE PREMISE OF THIS COURT AND ALL COURTS IS WRONG. THE DEBT IS NOT EVIDENCED BY ANY WRITING BUT IT STILL EXISTS. SINCE THE NOTE DOES NOT DESCRIBE THE DEBT IT DESCRIBES A NON-EXISTENT TRANSACTION. THUS THE MORTGAGE SECURING THE DEBT REFERENCED IN THE NOTE SECURES A FICTITIOUS TRANSACTION AND IS SUBJECT TO QUIET TITLE]

N.J.S.A. 12A:3-201(b) provides in pertinent part that “if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its indorsement by the holder.”

Therefore, even if Wells Fargo had presented satisfactory evidence that it was in “possession” of the note executed by defendant (which is discussed later in this opinion), Wells Fargo admittedly presented no evidence of “its indorsement by [Argent].” Therefore, Wells Fargo was not a “holder” of the note within the first category of “person entitled to enforce” an instrument under N.J.S.A. 12A:3-301. See Raftogianis, ___ N.J. Super. at ___ (slip op. at 6).

the question is whether Wells Fargo presented adequate evidence that it fell within the second category of “person entitled to enforce” an instrument under N.J.S.A. 12A:3-A-3627-06T1 301; that is, “a nonholder in possession of the instrument who has the rights of a holder.”

Transfer of an instrument occurs “when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.”

the documents that Wells Fargo relied upon in support of its motion for summary judgment to establish its status as a holder were not properly authenticated. A certification will support the grant of summary judgment only if the material facts alleged therein are based, as required by Rule 1:6-6, on “personal knowledge.” See Claypotch v. Heller, Inc., 360 N.J. Super. 472, 489 (App. Div. 2003). Baxley’s certification does not allege that he has personal knowledge that Wells Fargo is the holder and owner of the note. In fact, the certification does not give any indication how Baxley obtained this alleged knowledge. The certification also does not indicate the source of Baxley’s alleged knowledge that the attached mortgage and note are “true copies.”

Furthermore, the purported assignment of the mortgage, which an assignee must produce to maintain a foreclosure action, see N.J.S.A. 46:9-9, was not authenticated in any manner; it was simply attached to a reply brief. The trial court should not have considered this document unless it was authenticated by an affidavit or certification based on personal knowledge. See Celino v. Gen. Accident Ins., 211 N.J. Super. 538, 544 (App. Div. 1986).

On the remand, defendant may conduct appropriate discovery, (e.s.) including taking the deposition of Baxley and the person who purported to assign the mortgage and note to Wells Fargo on behalf of Argent.

for the guidance of the trial court in the event Wells Fargo is able to establish its standing on remand, we note that even though Wells Fargo could become a “holder” of the note under N.J.S.A. 12A:3-201(b) if Argent indorsed the note to Wells Fargo even at this late date, see UCC Comment 3 to A-3627-06T1 N.J.S.A. 12A:3-203, Wells Fargo would not thereby become a “holder in due course” that could avoid whatever defenses defendant would have to a claim by Argent because Wells Fargo is now aware of those defenses. See N.J.S.A. 12A:3-203(c); UCC Comment 4 to N.J.S.A. 12A:3-203; see generally 6 William D. Hawkland & Larry Lawrence, Hawkland and Lawrence UCC Series [Rev.] § 3-203:7 (2010); 6B Anderson on the Uniform Commercial Code, supra, § 3-203:14R. Consequently, if Wells Fargo produces an indorsed copy of the note on the remand, the date of that indorsement would be a critical factual issue in determining whether Wells Fargo is a holder in due course.




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17 Responses

  1. there are still planty of superior court judges in nj that dont follow the law or even bother to demand proofs from lenders that they, the lenders even own the notes and all they do is rubber stamp the banksters fraud and hands them homeowners homes.all this is happening while nj atty general and nj govreanor sleeping&doing nothing to protect nj homeowners]or even just making sure that homeowners in nj get due process of law.

  2. Tracy and others…checkout… Subject Matter Jurisdiction…can be opened in any court at anytime.
    basic to standing or proper party to sue…court has to obtain its jurisdiction to act or decide.

  3. [...] February, 2011 (02:01) | Legal | By: admin Submitted on 2011/02/20 at 6:20 am by Tracey T. [...]

  4. The Wells Fargo Bank, N.A. vs. Sandra A. Ford was NOT a Pro Se case. Sandra A. Ford was defended by Legal Services of New Jersey, Inc., attorneys; Ms. Jurow and Rebecca Schore and the case was decided January 28th 2011. The case in New Jersey that WAS defended and won Pro Se was Deutsche Bank vs. Tracey T. Wilson. Tracey T. Wilson was the Pro Se defendant and the case was decided ninedays earlier on January 19th 2011 in favor of the Pro Se defendant.
    To ignore the case Deutsche Bank vs. Tracey T. Wilson allows concealment of the following facts and truths in the case not disclosed to the public:
    • Tracey T. Wilson et al, Pro Se defendant was the first Appellate case decided in the State of NJ in a foreclosure matter in favor of the Defendant. The appellate decision was on January 19th, 2011 and was not approved for publication since defendant was Pro Se and not an attorney.
    • Defendant was Pro Se due to the fact that upon the onset of the initial foreclosure action in October 2007 every attorney she contacted in the State of NJ refused to take the case to defend the foreclosure action and told her that there was nothing she could do. Defendants did not qualify for free Legal Services of New Jersey due to family incomes being over the Legal Aid Services guidelines. Finally, an attorney who actually accepted the case in August of 2008 was never heard in the court when his Motion to Reconsider Summary Judgment was not granted by the court. Judge quoted that “defendant did not deserve a second “bite at the apple” simply because they now have an attorney.
    • Defendants owned the property with her husband of 25 years since 1994 and had previously paid over $370k in mortgage payments through the years.
    • Plaintiff’s counsel submitted a Certification with a signature from the plaintiff’s attorney. This submission / signed document was not based upon personal knowledge, but was based upon incompetent hearsay by the plaintiff’s attorney.
    • Attorneys’ for plaintiff never proved that they were the lawful holder to the note and mortgage prior to their commencement of foreclosure action. As of today Plaintiff has still not proved that they were a holder in due course.
    • The court did not dismiss foreclosure complaint filed by plaintiff, but however within the next six months from March 2008 through August 2008 were allowed several adjournments for plaintiff to produce assignment of mortgage and original mortgage note. As the months progressed awaiting the plaintiff to produce valid documentation, within those six months plaintiff produced an assignment that was signed by Laura Hescott, alleged AVP of Washington Mutual and notarized by Bethany Hood, in the State of MN; A certification from Ann Garbis; and a final certification from Janine Timmons on August 29th 2008. Laura Hescott and Bethany Hood were at that time employees of LPS and are now known to the public as Robo-signers who have admitted fraud and not having any personal knowledge. The certification from Janine Timmons was accepted by the court on August 29th 2008, without allowing defendant discovery. The court granted Summary Judgment to the Plaintiff. Defendant was denied due process.
    • Defendant obtained attorney to file a Motion to Reconsider, however, as mentioned in earlier bullet points this motion was denied in October 2009.
    • Defendant asked her attorney to Appeal the Final decision and attorney told her he would NOT write appeal and then provided incorrect dates of final decision, documentation, due dates, etc.
    • With no other choice defendant Tracey T. Wilson filed her own appeal Pro Se in December 2009.
    • Plaintiff never responded to Appeal.
    • The case was placed on the calendar for the Appellate Judges on November 3rd, 2010.
    • The Appellate Court rendered their decision on January 19th 2011 in favor of Pro Se Defendant and the case was REVERSED AND REMANDED back to the lower court. Same Judge who presided over the case since 2007.
    • Unfortunately, within the thirteen month time period when the appeal was submitted December 2009 and Appellate Court decision on January 19th 2011, a Sheriffs sale notice was placed on my home December 16th 2009 less than two weeks after my appeal was submitted with a sale date of January 6, 2010.
    • Findings reveal that my home was sold to the bank at sheriffs’ sale in February 17th 2010 for $100.00.
    • The home was sold to a third party (believed to be an investor) in June 2010 for $262,000.00 to cure the debt to prevent the sheriff sale, the plaintiff was asked to pay in excess of $550,000.00 which included tagged on erroneous fees b y the bank.
    • Other illegal tactics such as the mortgage never being filed in the County Clerk’s office and altered files of tax record lot and block numbers exist.
    • As of today, there is no property and I have been told there is nothing I can do to ever get my home back. The case should be dismissed since my home was foreclosed upon illegally and there is no property however the Judge has now requested a trail for June 2011 for the “Discovery” that was never granted to me in the first place. The court no longer has jurisdiction since there is no equitable property, however plaintiff will once again be given the chance to produce documents he was not able to produce to the Appellate Court nor during the four years this case has gone on for.
    • The banks want a pass on the law and want to skirt the law; there are no laws currently on the books that have allowed for the injustice done to our society. – Standing is a major issue.
    • The Republic has to be for the people and by the people. The banks are attacking a main component of the constitution which is protection of its citizen’s property rights. They did not take care of their due diligence. The whole premise of home ownership has been eroded.
    • This is why they want to conceal my case and not hear the truth.
    • I will not stop until Justice Prevails!!

    Tracey T. Wilson

  5. [...] View the original article hereBookmark on DeliciousDigg this postRecommend on Facebookshare via RedditShare with StumblersTweet about itSubscribe to the comments on this post Share and Enjoy: [...]

  6. Mr. Bryl,

    It is actually UCC 1-201(b)(21)(A):

    (21) “Holder” means: (A) the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession;

    But you were close, LOL.

  7. Las Vegas…. With the unjust enrichment of the banksters and their players taken into consideration just think
    of a number and add a lot of zeros
    but seriously the lawyer should know

  8. Neil what happened to the note PLUS the bond argument …. And the IOU being sn unconditional
    prpimise as I understood when I signed had Been morphed into unsecured debt and there’s a cloud on title to my subject property. Would that open a crack in the door to discover the how’s when and whoes money
    was used and how xxxx Bsnk became the owner of what is infact the unsecured debt ( don’t they have to satisfy the statute if frauds ….woops too late there army of robosigners blew that ) and the a to d transfer
    argue the break in chain ( use of mers splitting the note from the deed
    purposefully at origionation ) I know investors
    don’t give a fig about the little borrower but we both got screwed that’s for sure. ( I wsnt to add and do did future generations )
    Las Vegas here are my damages :
    ruined credit score ( dare not look.. Started at 750 at inducment into the contract)
    2 bk filings. ( first one very bad advice and a very very long story you would never believe)
    bk was for protection of the home got out when my adversary suit was filed had to save for a retainer for attorney
    then they seceretly had an ” public” auction of my home thst I fought so hard to save
    wild deeds issued
    I am still suing them
    I couldn’t fight the firecible no one wins that in az and my then atty abandoned me (( another amazing story you wouldn’t believe)
    so I dud not wsnt the embarassment of something like ( bless her heart) June Reno went through so I gave all my stuff away out of the home so I could move quickly about 40k worth
    so here I sit in my tiny lift sppartment with one couch and one bed but have job can fight and believe me I can fight
    so 3 years of my life … I told someone when it’s over I think it will feel like being let out of prison for something I didn’t do
    so figure damages on that . If I had knwn what I i was in for I might of walked a long time ago but my good freind who has always thought me crazy for doing this said” the question you must ask yourself is whatever your decision , will you be able to live with it in years to come …. So I knew then I must fight and I never changed my mind and neither should anynof you. I do pray a lot for assistance though and so far I have received .

  9. This is VERY similar to the case I recently won in Virginia (http://bryllaw.blogspot.com/2011/01/first-standing-related-victory-in.html).

    UCC 101: “holder” = “possession” + “endorsement”
    If a pretender-lender fails to even allege (not to mention prove) either of these elements, it cannot proceed.

  10. KAA BOOM No GREEDY lawyer needed for this PRO SE WIN!
    Why is that Neil in spite of you urging to get a lawyer. the Pro Se wins? It depends on what State you are in NOT whether you need a lawyer or not.
    KAA BOOM LAYERS!
    Stan
    Wis

  11. To Las Vegas, You want “validity of secured debt” or quite your title from fictitious liens not evidenced by a legal chain of assignments per TILA.

  12. To The A Man, Do you have a source for keeping one updated to BoA’s actions?

  13. Okay, I get that the pretender lenders are not holder in due course and potentially we as homeowners have the right to damages. Besides a quiet title action and potential unsececured note. Can someone talk about the damages? the dollars involved as damages?

    All lawyers I have talked to in Nevada ask: What do you want?

  14. Some off you may be want to know about the
    class action CHASE CREDIT CARD raise the minimum payment from 2 % to 5 % . there is a new Date on the Supreme Court :

    Chase is opposing the motion for class certification and a court hearing on the issue is currently set for March 18, 2011.

  15. In California BofA is accelerating their foreclosures.

  16. Here is a recent NY Appellate Decision in which Plaintiff US Bank failed to show that the debt was transfered before the commencement of the action.

    I think this really changes the playing field in NY, since MERS did the assignment of the mortgage without evidence of tranfer of the debt.

    http://www.nycourts.gov/reporter/3dseries/2011/2011_00505.htm

    Loading…

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