Woman Wins Home and Forecloses on Wells Fargo

What’s the Next Step? Consult with Neil Garfield

CHECK OUT OUR NOVEMBER SPECIAL

For assistance with presenting a case for wrongful foreclosure, please call 520-405-1688, customer service, who will put you in touch with an attorney in the states of Florida, California, Ohio, and Nevada. (NOTE: Chapter 11 may be easier than you think).

Editor’s Comment: We have seen some of these stories before. What is disconcerting is that the press is not getting the point — some homeowners are winning their cases and getting their house free and clear. The reason is simple: if you try to make the case that you should get a free house, then you are going to lose. But if you attack the would-be forecloser where it hurts, then your chances of getting a favorable result are immeasurably increased. Mark Stopa got 14 Judges to (a) deny the forecloser’s motion for summary judgment and (b) grant final summary judgment to the homeowner. It does happen.

In the final analysis the strategy and tactics are the same as in any civil case — deny each and every allegation that you know is absolutely true, like your name. If you don’t know if the note and mortgage are legitimate or if they are showing a copy of the note and mortgage (or deed of trust) that might be fabricated, deny it. The burden is on the party seeking affirmative relief. Too many times, I see homeowners and attorneys give away the store when they are asked whether there is any issue about the obligation, note or mortgage. Their reply is no “but”….

The fact is there is no “but.” You either deny their right to foreclose or you admit it. If you admit it, then all the argument in the world won’t allow you to win. The Judge has no choice but to allow the foreclosure if your admission, tacit or expressed, goes to all the elements required for a foreclosure.

For reasons that I do not understand the same lawyer that will summarily deny virtually all allegations in the complaint for anything other than a foreclosure action, will be very timid and uncertain about denying allegations and validity of the exhibits in a foreclosure. If you attack the foreclosure after admitting that the elements are there based upon UCC or other arguments attacking the documentary trail, you will most likely lose — unless you accidentally stumble upon an argument that deals with the money trail.

That is why I am continually pushing lawyers and pro se litigants to get advice from lawyers that allows them to deny the validity of the allegations of a judicial foreclosure and deny the validity and authenticity of the substitution of trustee, notice of default and notice of sale in the non-judicial states.

Say as little as possible. The more you allege, the more the burden is on you to prove things that only the other side has in the way of information. I have previously posted an article about that.

The judicial doctrine applies that where the information is exclusively in the care, custody and control of the the opposing side then the mere allegation from you will be sufficient to shift the burden of persuasion onto the forecloser — and their case generally will collapse.

Jacksonville Business Journal by Michael Clinton, Web Producer

In a strange twist of events, a St. Augustine woman has filed foreclosure on a local branch of Wells Fargo after a judge ruled she could keep her home.

The bank tried to foreclose on Rebecca Sharp’s home, but a judge ruled she could keep it and the bank owed her nearly $20,000 for attorney’s fees — eight months later, the bank still hasn’t paid, Action News Jax reports.

“Foreclosure cases are based on borrowers not paying bills. Now, Wells Fargo has not paid its bills. There’s an irony there,” Sharp’s attorney Tom Pycraft told Action News.

Read the full story and see the video at Action News Jax.

Wells Fargo (NYSE: WFC) is the third-largest bank in Northeast Florida, with $5.5 billion in area deposits and a market share of 12 percent.

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18 Responses

  1. Do you know of any lawyers in Pennsylvania the handle these types of cases?

  2. @ Jan van Eck

    That was done to BOA, in Florida, not so long ago. It did work!

  3. Here’s something to ponder:

    After reading over and over the Fifth Amendment to the Constitution…I wonder. When we are in court, are we not “incriminating” ourselves, when we are forced to admit any default?
    Under the Amendment, if I am reading it right, when there is criminal activity presented to the court as factual documentation to convert our property, we do have a right to deny the facts and refuse to “testify” against ourselves, to our detriment?

    Then we have the Seventh Amendment denied Due process…which states: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law”

    The Fourteenth Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”

    These are our homes people: the Constitution of the United States of America, trumps all. I have found very few attorneys using this stuff, but I am going to give it a run…have court soon, I’ll keep all advised…because this is the law of the land. PERIOD!

  4. More from the paper, aka How to Get Away With It:
    “It is important to note that Article 3 does not concern “ownership”
    of a mortgage note, but instead provides for the transfer of a mortgage
    note and the right to enforce such notes. See uCC § 3-301; uCC § 3-203 cmt. A party need not be the “owner” of the mortgage note to enforce it.”

    jg: like heck they don’t if they’re in fed court subject to Rule 17.
    If they’re not under the juris of the court, and Art 3 applies to these notes, then the stmt that a party need not be the owner to enforce the note is true. If in fed, you must join the rpii. There may be a mirror state requirement re: rpii – I don’t know.

    “See uCC § 3-301 (“A person may be a person entitled to enforce the
    instrument even though the person is not the owner of the instrument
    or is in wrongful possession of the instrument.”). Thus, a party may
    have the right to enforce the instrument, but not have “ownership” of
    that instrument. uCC § 3-203 cmt 1.”

    jg: well, glad we got the distinction between (mere) right to enforce and
    ownership clear.
    I have been saying that a party in poss who is not the note’s owner
    has no interest in and no independent right to an assgt of its coll instrument. I’m more convinced than ever. What that party has, at best, is an unsecured note. Even if a dot followed a note, which I argue it doesn’t, it would follow the note’s ownership, not a mere right to enforce the note. I argue a dot doesn’t follow a note and the reason I do is because it’s an equitable RIGHT to an assgt which follows the note’s ownership, not the coll instrument itself. I know courts have ruled differently and it may well depend on a particular state’s S of F. I have always been taught there is no such thing as an equitable
    assignment of an interest in real property under the S of F which
    calls for a writing.
    Now if I can just back up my assertion that the first action on a note secured by a home must be one against the collateral (v. money
    judgment), the banksters won’t be able to rely on right to enforce an unsecured note for jurisdiction. They’d have to demonstrate how their non-ownership right to enforce the note finds them with an assgt of the dot. They could, if they evidence they’re the noteowner’s agent. They can’t and won’t do that, as attorney Weidner has seen in his ongoing
    case linked here the other day. .

    If the bankster doesn’t demonstrate agency for this purpose, the assgt is either a nullity or if not nullity, the collateral has been split from the note’s ownership. If anyone thinks we’ve alleged this before, we haven’t. This is different.
    It’s pretty frustrating to not know today why I believe the first action on a note secured by a home must be against the home, the collateral. It’s probably the same reason I go to another room and have no clue why when I get there. I’m sure some other readers know what I’m talking about. Not long ago, i couldn’t find either pair of glasses. I looked high and low. I finally, thank God, passed a mirror and spotted them both on my head.

  5. I stumbled or bumbled upon another “lip service” web site called MASXX REALTY SOLUTIONS – Auditors (Hmmm no CPA’s )

    They claim “The original lender has actually been paid in full for the note, and the Deed of Trust actually states that upon payment, the lender must ask the original trustee to re-convey the property back to the borrower!”

    Who is the orginal Lender? It is one in the same with the creditor . Therefore who is the creditor? And if paid as alleged, who paid for the pooled investment …The purchaser? The Purchaser is the Seller Dba the Lender.! So where the Seller is the Purchaser Dba the Originator and all three are one and the same. . . do you really expect there to be a reconveyance? Or need for valid assignment ?

    Party “A” [tax payer corporation] never sells the loans. Party “B is the transferee. Party “C” is an L.P. formed as a subsidiary of Party “A” who is the Seller ….SMELLS LIKE A TAX SHELTER TO ME !!!!!

    Support these groups –

    Society Against Accounting Arguments
    Foundation for 5th Grade Math Skills
    Organization for How to Read a PSA
    Members of the Rubber Bifurcated Bellringers

    Take a Guess – And try and Save a Home

  6. How do you win your own home, when you stopped a thief?

    Trespass Unwanted, Corporeal, Life, Free and Independent State, People, In Jure Propio; Jure Divino

  7. To “TN Harry:” A Judgment Creditor, should he be able to find real estate of the judgment debtor, can attempt to enforce his judgment by filing a foreclosure suit and lien upon the real estate. Assuming Wells Fargo owned the bank branch property and was not leasing the space, then filing such suit as described is eminently feasible. This is one of the problems with “unsecured debt” that most folks do not realize: it can be converted into “secured debt” by obtaining a Judgment Lien and then filing a second suit. A good reason to own unencumbered property in a Trust or other unreachable entity.

  8. The idea of worldwide debt jubilee is getting incredible traction. Here is a short excerpt of a great article. The entire analysis of why it is the only solution is worth reading.

    http://www.goldstockbull.com/articles/worldwide-debt-default-jubilee-is-the-only-solution/

    Conclusions

    1) Raising taxes will not solve the problem. We could raise the tax rate to 100% and the government would still not be able to get out of debt.

    2) Cutting spending (austerity) will not solve the problem. We could cut every non-essential government service and the government would still not be able to get out of debt.

    3) Inflating away the debt will not solve the problem in the long term. It will only kick the can down the road, exasperating the final crisis and making everyone pay for the poor decisions of a small group of lenders.

    Solutions

    So then, what is the solution to the debt crisis in Europe, the U.S. and around the globe?

    The immediate default on all fiat debt. An old-fashioned debt jubilee of sorts.

    I know this may seem like a radical proposal, but I believe it is the best option we have as a society and that there exists both a sound economic and moral argument for this course of action.

    If we agree that the debt can never be repaid, which is a position held across the ideological spectrum by everyone from Ron Paul to Paul Krugman to the Zeitgeist Movement, then let’s get on with the default and start anew. The sooner that the debt liquidation occurs, the sooner that we are able to transition to a new, more sound and more sustainable monetary system. The longer this inevitable outcome is delayed, the longer we languish in this mode of low growth, high unemployment and extreme wealth disparity.

    I won’t pretend that the transition is going to be swift or painless, but the vast majority of humanity stands to benefit from the default happening sooner rather than later. Only the banking power elite, politicians they support and those feeding at the trough have any interest in sustaining the current corrupt and inequitable system any longer.

  9. off topic but incredibly comforting to read.

    http://www.rawstory.com/rs/2012/11/15/occupy-debt-relief-campaign-buys-100000-worth-of-debt/

    Occupy debt-relief campaign buys $100,000 worth of debt
    By Arturo Garcia
    Thursday, November 15, 2012 11:58 EST

    Rolling Jubilee video

    Members of a debt relief project borne from the Occupy Wall Street campaign said Wednesday they have purchased more than $100,000 worth of medical debt in a second trial run for their efforts.

    Thomas Gokey, a spokesperson for the Rolling Jubilee campaign, said the debt was purchased for $5,000. Earlier this year, the group bought $14,000 worth of debt for $500.

    “We are buying debt that is being sold on the secondary market for pennies on the dollar,” Gokey said in a conference call. “We are doing it in exactly the same way that [debt collectors] do it, with one big difference: we are abolishing the debt as we buy it.”

    Normally, he said, such businesses acquire debt on the cheap and then hound debtors for the full amount.

    “This debt is immoral, but the immorality of it comes down on the side of the lenders, not on the side of the debtors,” Gokey said. “We’re being told that we have a moral obligation to pay these debts, and Strike Debt’s main message is that many of these debts are illegitimate, and that we should form a way of resistance and refusal to these debts.”

    A fundraising concert is scheduled to be held Thursday in New York City, with the group seeking to raise $50,000 in order to buy — and wipe out — $1 million worth of medical debt.

  10. J Fault : The basic legal regime for transfer and pledge of such instruments is well understood: If the note is negotiable, Articles 3 (“Commercial Paper”) and 9 (“Secured Transactions”) of the Uniform Commercial Code (UCC) govern; otherwise, it’s Article 9 and the common law (which is likely to draw on Article 3).

    Tide talking stain –

    Who is the Note holder ?
    Who is the creditor ?
    Why is the creditor not the not holder ?
    Who is the seller. ?
    Why is the seller and transferee one in the same ?
    Where is the straw buyer ?

    Embrace MersCorp – its being abused and stands ready to aid you ….Want to really ruin a Mers Corp day – get your court to join them in your claim . More than one attorney laughed at this and others said (“Ahhh Howie does He know?” ) .

    JP Morgage Chase
    Vs
    Borrower and
    JP Morgan Chase HomeLoans
    July 2011 (Actual Case)

    Make them sue each other in order to perfect .

    Soil …..Just keep this tidbit parked will ya ….You willcomeback to read it again and again….

  11. NG if you try to make the case that you should get a free house, then you are going to lose. Why would any one argue a home for free? Your receiving a 1099 are you not.

    So what did you receive for the income allocated to you .

    registerclaims@live.com

    12/31/2012 Preemption comining GAAP and Good will accounting . Then its light out ….

  12. dcb, you asked me if I would defend, mol, my assertion that art 9
    finds a party with only security interests pursuant to a Sale and Assignment agreement if the notes weren’t actually delivered. I’m working on it. This is from the paper you and I discussed:

    “Article 3 of the UCC applies to the negotiation and transfer of a mortgage note that is a “negotiable instrument,” as that term is defined in Article 3. In addition, Article 9 of the UCC applies to the SALE of “promissory notes,” a term that generally includes mortgage notes. In addition, as a general matter, the securitization of a loan under a typical pooling and servicing agreement provides BOTH for the negotiation of negotiable mortgage notes (by indorsement and transfer of possession to the securitization trustee or the custodian for the trustee) AND for an outright SALE AND ASSIGNMENT (art 9 – sic) of all of the mortgage notes and mortgages.”

    This establishes the forum’s confirmation that the SALE of these notes is done pursuant to art 9. True sales were called for, we know this -don’t we? – v mere transfers of the notes by way of 3, which frankly, until recently I couldn’t have distinguished: transfer is not a ( true) sale. Accordingly, though i have not yet defended my position that art 9 says if no delivery the trusts only got sec interests, I think I’ve adequately established that notes which must be sold and not just transferred are subject to Art 9 Sale Agreements with all that might mean. I’ve already said i want to know the balance on the note when
    the trust allegedly bought it and I want it by way of the best evidence as allowed by FRCP 1002, and I don’t even think that’s the sale agreement. I think it’s an accounting for the sale figure.

  13. “The basic legal regime for transfer and pledge of such instruments is well understood: If the note is negotiable, Articles 3 (“Commercial Paper”) and 9 (“Secured Transactions”) of the Uniform Commercial Code (UCC) govern; otherwise, it’s Article 9 and the common law (which is likely to draw on Article 3). This past April the New York Court of Appeals (New York’s highest) upset those comfortable
    understandings. In Highland Capital Management LP v. Schneider, the court held that eight promissory notes issued to four individuals as partial payment for their business were securities governed by Article 8 (“Investment Securities”) of the UCC. No one has ever doubted that some promissory notes — for example, those traded on securities exchanges — are also Article 8 securities. Indeed, Article 8 states that if an Article 3 promissory note also meets the requirements for an
    Article 8 security, then Article 8 governs. It is also widely understood that some promissory notes (and lots of other instruments as well) may be “securities” for purposes of the federal securities laws without being Article 8 securities.”

    This is from an article linked below. There’s reference therein to an
    analysis of the case (Highland Cap) in a Business Law publication. But the ART 8 issue isn’t what caught my eye. This is:

    “1 Statute of frauds. In New York and many other states that have not adopted the newest version of UCC Article 1,

    a sale of promissory notes is subject to the STATUTE OF FRAUDS;

    a sale of Article 8 securities is not. (This was the difference that led the plaintiff’s lawyers in Highland Capital to argue that the notes were governed by Article 8.)

    Sales of notes are subject to the S of F? What’s that about? How have we missed it? And have all states, including NY, now adopted the newest version of art 1 which this info implies 86’s note sales being subject to the S of F? If so, hmmmm, wonder who might have been behind that. This article was apparently written in 2007.
    Hey, that reminds me. Do we care where a sale took place?

  14. and Jan made a better point – seize personal property or simply the cash in the drawers…this is a media ploy for her atty and her, nothing more.

  15. the story doesn’t make sense. the bank can foreclose upon default by the borrower because that remedy is provided in a mortgage or deed of trust. she can’t simply foreclose on the bank without a security interest at all. she has a $20k judgment. for the story to make sense, we must assume several additional facts : that she recorded her judgment as a lien against the bank real property, that the judgment debtor and the real property owner match up exactly, and that she is seeking sale as enforcement of that judgment lien. not exactly the same as her “foreclosing” on the bank, but close enough for a lazy journalist i guess….

  16. Filing a suit in foreclosure against Wells Fargo as the offending banker that did not pay the award of attorneys’ fees against it “sounds nice,” but that is not a strategy that is serious, unless you count revenge as a motive. A more expedient method is this: you have a Judgment. Obtain a Writ of Execution of Judgment, hire a Sheriff, and go into any branch of Wells Fargo with the sheriff, the execution, and the certified judgment, and let his men start seizing (and hauling off) desks, chairs, cash registers, paintings on the walls, telephone system, whatever you can find, and carry it off to the sheriff’s truck, for auction sale to satisfy the Judgment. Trust me on this, that will get their attention! (They pay the Sheriff on the spot, and they have to pay his fees also). You get to stand around and watch, always nice for the revenge quotient.

  17. Hi Neil. I have been following your post for a long time. In fact we have spoken on few occasions. Is there a chance of getting a sample complaint or a Case number on the Rebecca Sharp Foreclosure on Wells Fargo Bank. Thank you in advance. Respectfully. N. Hahn

    Original Message —– From: Livinglies’s Weblog To: nev.hahn@roadrunner.com Sent: Thursday, November 15, 2012 10:17 AM Subject: [New post] Woman Wins Home and Forecloses on Wells Fargo

    Neil Garfield posted: “What’s the Next Step? Consult with Neil Garfield CHECK OUT OUR NOVEMBER SPECIAL For assistance with presenting a case for wrongful foreclosure, please call 520-405-1688, customer service, who will put you in touch with an attorney in the states of”

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