Set Them Up Right Back

The Federal Reserve Has Set You Up: Set Them Up – Right Back

With the economy in its present Federal-Reserve-orchestrated-condition, your eventual default on the promissory note and mortgage against your property is assured.

Prepare now, for that inevitable day. The following is one possible course of action against the criminal banks:

References to the Uniform Commercial Code (UCC) are to the Federal UCC. Each state in the union, except Louisiana, has adopted the Federal UCC into its own law. The Federal UCC can easily be cross referenced to your local jurisdiction. When using the UCC in your jurisdiction, reference the version of the UCC adopted in that particular jurisdiction.

i.e.: UCC § 3-301 has been adopted in the Alabama Code at -- Ala.Code 1975, § 7-3-301.

The Cornell UCC state locator can be found here:
LII: UCC - Locator <http://www.law.cornell.edu/uniform/ucc.html>

When in the position of being unable to make the next installment payment, or future scheduled installment payments, prepare for the inevitable claim from the bank to have the right to foreclosure and enforcement of the NOTE-Mortgage.

1. On the day after the date of the day you are served with the foreclosure lawsuit summons, a critical time clock starts counting down. By the last calendar day of the time-period noted on the summons as the time within which you are to ANSWER the foreclosure complaint, have prepared (1) for mailing via certified mail and (2) filing, in the case noted on the summons in the court docket, a Motion to Dismiss For Failure To State A Claim Upon Which Relief Can Be Granted.

1.1 Start counting days on the day after you are served with the summons to court in response to the bank’s foreclosure lawsuit, (all calendar days must be counted). On the last day of the specified time period file your Motion to Dismiss For Failure To State A Claim Upon Which Relief Can Be Granted. (See Rules of Civil Procedure, Rule 12(b)(6)). (Check the rules in the jurisdiction where the foreclosed property is located; if the court has local rules be sure to observe those rules also).

1.2 There is no advantage in filing the motion early. Filing the Rule 12(b)(6) motion suspends the time for filing an ANSWER.

About the Motion to Dismiss For Failure To State A Claim Upon Which Relief Can Be Granted:

2.         The foreclosure claimant (bank) is required to establish the court’s subject matter jurisdiction over the case by evidence proving a valid cause of action. That proof must be established pursuant to the requirements of UCC § 3-301, and if applicable UCC § 3-309, and should be affirmatively set forth in the foreclosure complaint.
      The lawyers for the foreclosure claimant will fail to establish the court’s subject matter jurisdiction over the case in the initial complaint, secure in the presumption that you will not question the bank’s standing to file the foreclosure action.
      The lawyers that do this type of sloppy work are incompetent and probably in collusion with the judge who will “overlook” this defect in the complaint.
      Your ability to zero in on the issue of the bank’s standing to make a claim in foreclosure from the beginning, will immediately panic the foreclosure complainant. The lawyers who wrote and filed the complaint for the bank are also subject to sanctions under Rule 11 of the Rules of Civil Procedure, for filing a case where their client cannot establish the right to enforce the instrument. No valid cause of action. Such complaint, without valid cause of action is frivolous. Ask for sanctions against the lawyers and their law firm.
      The lawyers have given themselves a 21-day “safe harbor” provision when filing a Rule 11 request for sanctions, giving those bastards time to correct their frivolous incompetence. So, check the rules and case law in your jurisdiction. “They” made the rule. Throw those rules back at them like a javelin.
      The Motion To Dismiss must also contain words making it obviously apparent that the court’s subject matter jurisdiction over this particular case is being challenged. Once subject matter jurisdiction has been challenged it must be addressed and affirmatively established by the court. It is an abuse of discretion for a court to fail, by either refusal or neglect, to address a subject matter jurisdiction challenge.

    NOTE: there is a distinction between the term “subject matter jurisdiction” and “subject matter jurisdiction over the case.”
    “subject matter jurisdiction” is a broad and general term referring to the court’s general subject matter jurisdiction over a class of case types. Without this jurisdiction, judgments of a court are VOID.
    “subject matter jurisdiction over the case” is a sub classification within the general subject matter jurisdiction of the court. The court’s lack of subject matter jurisdiction over a particular case makes the judgment in that case VOIDABLE.
     See the following case for an explanation of the difference: Edwin A. Hisle and Olive Sue Hisle Cook v. Lexington-Fayette Urban County Government, Appeal From Fayette Circuit Court, Action No. 65-CI-17431, Commonwealth of Kentucky Court of Appeals, No. 2006-CA-001733-MR. [http://162.114.92.72/COA/2006-CA-001733.pdf]

For the bank to establish a valid cause of action, the right to enforce the instrument must be proved with evidence entered into the court record pursuant the following requirements of law:

3. Prove status of holder of the instrument. (UCC § 3-301(i)); or

"Holder" means: (UCC § 1-201(21) )
(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; or
(B) the person in possession of a document of title if the goods are deliverable either to bearer or to the order of the person in possession.
http://www.law.cornell.edu/ucc/1/article1.htm#s1-201

If the bank is the holder in possession of the authenticum NOTE-Mortgage, (original wet-ink NOTE-Mortgage), evidence of possession of the authenticum NOTE-Mortgage must be produced to establish standing to invoke the court’s subject matter jurisdiction over the case.

Authenticum:

In the civil law, an original instrument or writing; the original of a will or other instrument, as distinguished from a copy. (BLD6-133)

4. Prove status of non-holder in possession of the instrument who has the rights of a holder. (UCC § 3-301(ii)); or

If the bank is not the holder, but has actual and present possession of the authenticum NOTE-Mortgage, the bank must produce clear evidence to establish that the rights of the holder have been assigned to the non-holder to enforce the instrument.

5. Prove status of being entitled to enforce the instrument as a person not in possession of the instrument pursuant to UCC § 3-309 or UCC § 3-418(d). (NOTE is lost, stolen, destroyed).

If the bank is not in possession of the authenticum NOTE-Mortgage, the bank must produce clear evidence to establish the right to enforce the instrument pursuant to the requirements of UCC § 3-309.

UCC § 3-309, requirements.

6. Prove possession of the instrument and entitled to enforce it when loss of possession occurred. (UCC § 3-309(a)(1)).

7. Prove non-possession of the NOTE is NOT the result of a transfer. (UCC § 3-309(a)(2)).

8. Prove that the person seeking enforcement cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process. (UCC § 3-309(a)(3)).

9. A person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person's right to enforce the instrument. (UCC § 3-309(b)).

UCC § 3-301. PERSON ENTITLED TO ENFORCE INSTRUMENT.
"Person entitled to enforce" an instrument means
(i) the holder of the instrument,
(ii) a nonholder in possession of the instrument who has the rights of a holder, or
(iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to Section 3-309 or 3-418(d). 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.

UCC § 3-309 ENFORCEMENT OF LOST, DESTROYED, OR STOLEN INSTRUMENT.
(a)  A person not in possession of an instrument is entitled to enforce the instrument if
    (1) the person seeking to enforce the instrument
        (A) was entitled to enforce the instrument when loss of possession occurred, or
        (B) has directly or indirectly acquired ownership of the instrument from a person who was entitled to enforce the instrument when loss of possession occurred;
    (2)  the loss of possession was not the result of a transfer by the person or a lawful seizure; and
    (3)  the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.
(b) A person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person's right to enforce the instrument. If that proof is made, Section 3-308 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.

An instrument is transferred 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. (UCC § 3-203(a)).

If a transferor purports to transfer less than the entire instrument, negotiation of the instrument does not occur. The transferee obtains no rights under this Article and has only the rights of a partial assignee.(UCC 3-203(d))

UCC § 3-201. NEGOTIATION
(a) "Negotiation" means a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder.

“The note and mortgage are inseparable; the former as essential, and the latter as an incident. An 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. (16 Wall.) 271, 274, 21 L. Ed 313 (1872) (SCOTUS). (Access Carpenter here: http://supreme.justia.com/us/83/271/case.html

Carpenter recently cited in – Landmark National Bank v. Kesler, Kansas S.Ct., No. 98,489, (August 2009)). Access Landmark here: [Landmark Decision]

10. Immediately after being served with the summons mail the bank’s incompetent attorney a discovery request for production of documents; Rules of Civil Procedure, Rule 34 – Production of Documents.

11. Production of Documents for the opportunity to inspect, photo copy, certify, and validate

11.a The authenticum original wet-ink NOTE-Mortgage.

11.2 All documents relating to the NOTE-Mortgage.

11.3 All balance sheets relevant to the NOTE-Mortgage.

11.4 All insurance records relevant to the NOTE-Mortgage.

11.5 All records pertaining to any Credit Default Swap certificates relevant to the NOTE-Mortgage.

11.6 All records pertaining to guarantors relevant to the NOTE-Mortgage.

11.7 All records pertaining to any investors relevant to the NOTE-Mortgage.

11.8 All records pertaining to any money paid relevant to the NOTE-Mortgage.

11.9 All records pertaining to any assignment(s) relevant to the NOTE-Mortgage.

11.10 All records pertaining to any “aggregator” relevant to the NOTE-Mortgage.

11.11 All records pertaining to any “pool” relevant to the NOTE-Mortgage.

11.12 All records pertaining to any “Special Purpose Vehicle” relevant to the NOTE-Mortgage.

11.13 All records pertaining to any “Special Investment Vehicle” relevant to the NOTE-Mortgage.

11.14 All records pertaining to any “Collateralized Debt Obligation” relevant to the NOTE-Mortgage.

11.15 All records pertaining to any “Collateralized Mortgage Obligation” relevant to the NOTE-Mortgage.

11.16 All records pertaining to the present holder relevant to the NOTE-Mortgage.

11.17 All records pertaining to any entity ever having physical possession of the relevant NOTE-Mortgage.

12. The bank will have 30 days from the day they receive service of the request for production of documents to send you a response. If the bank fails to respond with valid answers within 30 days after receipt of your request for production of documents, file a motion to compel the bank to comply with your discovery request. Ask the court for Rule 11 sanctions against the bank’s lawyers.

13. If the bank fails to establish a valid cause of action pursuant to the requirements of UCC § 3-301, and if applicable UCC § 3-309, the court will be forced to dismiss the case. If the case is dismissed, the discovery requests are then moot.

14. Once the case is dismissed, file a Quiet Title Action pursuant to the fact that the NOTE-Mortgage has been satisfied, that there is no holder in evidence, that the NOTE-Mortgage were acquired by the bank by false representation and fraud.