Monthly Archives: September 2009

Call to Arms: Wells Fargo Class Action possible on Mortgage Servicing/Holder-in-Due Course Fraud, Securitization issues?

FEDERAL CASE AGAINST WELLS FARGO

Currently I am the sole Plaintiff in a lawsuit against Wells Fargo in US District Court in Boise Idaho. The suit, like many of the others I write, is for Quiet Title to my property located in Caldwell Idaho. My assistant, Peyton Freiman, took it to the Court for filing in September along with an Application for Temporary Restraining Order, regarding which the Court immediately ordered a three hour hearing set for October 28, 2009.  Usually the decision on whether or not to grant a TRO is made in a manner of minutes in chambers. But, on this particular occasion, given the current economic climate, distrust of banks and maybe the individual language used in my pleadings I have been given a great deal of time to make my case for injunctions against Wells Fargo as we continue onward into Discovery and finally a trial. Hopefully this is a Court that realizes the seriousness of the matter and is giving me more time as a result, not simply a scare tactic to make me have second thoughts. Either way, I plan on being as prepared as ever to argue the issues in my pleadings.

I realize that this is a great opportunity and extend the option to anyone reading this who also has a loan out with Wells Fargo to intervene and join as a co-plaintiff in this case in Idaho. It would be a great strategic advantage  to have a massive list of Plaintiffs going into this hearing to give added weight to my words and possibly gain class action certification as a result.  To obtain certification under Rule 23 of the Federal Rules of Civil Procedure, there has to be at least one claim and issue regarding which all class members have identical claims. They have gotten very strict about that recently, it seems.  So class action status as a co-plaintiff we would need to talk about what issues there are in common and whether we can make identical claims for damages, injunction, or declaratory judgment.   In other words, there’s a difference in drafting issues of a different kind here: tailored issues for class certification and designation of one representative as “typical.”  We will also have to get a lawyer representing everyone’s claims in this action.  There is nothing specific in Rule 23 that says you have to have a licensed attorney.  Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class, while Rule 23(c)(2)(B)(iv) states that “a class member may enter an appearance through an attorney if the member desires.  Almost decision I have seen, however, requires that a class be represented by a licensed attorney and I’m not sure this is the place to try to challenge that issue, although it may be.  I’m open to discussion on that point.  The Court’s discretion to impose the requirement of a licensed attorney springs from Rule 23(d) (1)(C) “In conducting an action under this rule, the court may issue orders that….impose conditions on the representative parties or on intervenors.”

For the time being, and I’m writing this as of September 30, 2009: I issue this “Call to Arms”—Will everyone who believes they have been defrauded by Wells Fargo in regard to the servicing or modification of a mortgage note or mortgage contract signed after January 1, 2000, or who particularly believes that Wells Fargo is no longer the “holder in due course” of their note, or has otherwise acted in a manner inconsistent with “privity of contract” contact me through Robert Ponte at 860-599-5557?  It would be easier to start out with people in the Ninth Circuit: Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, and American Samoa, but we have another anchor state in Florida and still others in Massachusetts, Maryland, and Michigan where parallel actions could be filed.

I’d ask this:  I am working on the lawyer, are you, dear reader, willing to work with me?  If you want to know more I am willing to forward on the complaint, essentially the damages are “holder in due course” issues, which I talk about frequently on this blog. In short, if you think that somehow you and I don’t share the same kind of damages or allegations of material fact please think again: we are ALL being duped by big banks who have no idea where our original notes are. So, think about it and contact me if you wish,

CEL III

Our “Nanny State” Tries to Regulate Everything, even Nannies?

One thing seems reasonably certain: if the current trend continues, there will be NOTHING left unregulated in “the Land of the Free.” Almost every day, some new outrage comes to light, especially in the area of privacy and the family.   Ronald Reagan has been an inspiration to me my entire life, although I certainly do not approve of everything the Reagan administration did in the years 1981-1989, especially in the realm of monetary policy and government finance, but I’m still happy, even proud, to say I cast my first Presidential vote for Ronald Reagan as well as my second (and I did so while I was a graduate student at Harvard in Cambridge, Massachusetts, where the number of Republicans could be counted on the fingers of one hand, or so it seemed).   One of Ronald Reagan’s greatest quotes, in my opinion, was that “The most frightening sentence in the English language is, ‘we’re from the government, and we’re here to help you.'”  It is so true, so horribly true!  Government “protection” is in fact nothing BUT the ultimate “protection racket.”  As any serious reader of my blog knows, last year Judge Walter S. Smith bestowed upon me the astounding honor of recognizing my “crusade to have the Texas Family Code” declared unconstitutional by sanctioning me $150,000.00 in a case to which I was neither summoned as a party nor ever subpoenaed as a witness.  I still need to do something about that, but it’s frankly difficult.  The Family Code in Texas, Florida, California, Massachusetts, Michigan, Montana, and in fact every state of the Union from which I have ever heard any news on the question has but one REAL purpose, and that purpose is to put the State bureaucracy in charge of every minute aspect of daily private life.   And in that regard, I read some news from Michigan that so totally appalls me that I must recognize it here.  Apparently now, in the age of Obama and the triumph of “nanny state” socialism, friendship between working mothers is or ought to be subject to regulation, as this article below from Michigan shows.  I personally think this is a horrible outrage and everyone should be up in arms, demanding that the State GET OUT OF OUR LVIES AND OUR HOMES!:

State to mom: Stop baby-sitting neighbors’ kids

AP

By JAMES PRICHARD, Associated Press Writer – Tue Sep 29, 7:23 pm ET

IRVING TOWNSHIP, Mich. – Each day before the school bus comes to pick up the neighborhood’s children, Lisa Snyder did a favor for three of her fellow moms, welcoming their children into her home for about an hour before they left for school.

Regulators who oversee child care, however, don’t see it as charity. Days after the start of the new school year, Snyder received a letter from the Michigan Department of Human Services warning her that if she continued, she’d be violating a law aimed at the operators of unlicensed day care centers.

“I was freaked out. I was blown away,” she said. “I got on the phone immediately, called my husband, then I called all the girls” — that is, the mothers whose kids she watches — “every one of them.”

Snyder’s predicament has led to a debate in Michigan about whether a law that says no one may care for unrelated children in their home for more than four weeks each calendar year unless they are licensed day-care providers needs to be changed. It also has irked parents who say they depend on such friendly offers to help them balance work and family.

On Tuesday, agency Director Ismael Ahmed said good neighbors should be allowed to help each other ensure their children are safe. Gov. Jennifer Granholm instructed Ahmed to work with the state Legislature to change the law, he said.

“Being a good neighbor means helping your neighbors who are in need,” Ahmed said in a written statement. “This could be as simple as providing a cup of sugar, monitoring their house while they’re on vacation or making sure their children are safe while they wait for the school bus.”

Snyder learned that the agency was responding to a neighbor’s complaint.

Granholm spokeswoman Liz Boyd said the agency was following standard procedure in its response. “But we feel this (law) really gets in the way of common sense,” Boyd said.

“We want to protect kids, but the law needs to be reasonable,” she said. “When the governor learned of this, she acted quickly and called the director personally to ask him to intervene.”

State Rep. Brian Calley, R-Portland, said he was working to draft legislation that would exempt situations like Snyder’s from coverage under Michigan‘s current day care regulations.

The bill will make it clear that people who aren’t in business as day care providers don’t need to be licensed, Calley said.

“These are just kids that wait for the bus every morning,” he said. “This is not a day care.”

Snyder, 35, lives in a rural subdivision in Barry County’s Irving Township about 25 miles southeast of Grand Rapids. Her tidy, comfortable three-bedroom home is a designated school bus stop. The three neighbor children she watched — plus Snyder’s first-grader, Grace — attend school about six miles away in Middleville.

Snyder said she started watching the other children this school year to help her friends; they often baby-sit for each other during evenings and weekends.

After receiving the state agency’s letter, she said she called the agency and tried to explain that she wasn’t running a day care center or accepting money from her friends.

Under state law, no one may care for unrelated children in their home for more than four weeks each calendar year unless they are licensed day-care providers. Snyder said she stopped watching the other children immediately after receiving the letter, which was well within the four-week period.

“I’ve lived in this community for 35 years and everyone I know has done some form of this,” said Francie Brummel, 42, who would drop off her second-grade son, Colson, before heading to her job as deputy treasurer of the nearby city of Hastings.

Other moms say they regularly deal with similar situations.

Amy Cowan, 34, of Grosse Pointe Farms, a Detroit suburb, said she often takes turns with her sister, neighbor and friend watching each other’s children.

“The worst part of this whole thing, with the state of the economy … two parents have to work,” said Cowan, a corporate sales representative with a 5-year-old son and 11-month-old daughter. “When you throw in the fact that the state is getting involved, it gives women a hard time for going back to work.

“I applaud the lady who takes in her neighbors’ kids while they’re waiting for the bus. She’s enabling her peers to go to work and get a paycheck. The state should be thankful for that.”

Amy Maciaszek, 42, of McHenry, Ill., who works in direct sales, said she believes the state agency was “trying to be overprotective.”

“I think it does take a village and that’s the best way,” said Maciaszek, who has a 6-year-old boy and twin 3-year-old daughters. “Unfortunately you do have to be careful about that. These mothers are trying to do the right thing.”

___

Associated Press writers Randi Goldberg Berris and David Runk in Detroit and Kathy Barks Hoffman in Lansing, Mich., contributed to this report.

The Mortgage Crisis and Monetary Policy, by Charles Edward Lincoln, IV

My dad is a property management consultant with a J.D., and this past summer, between my 11th and 12th grades, and while I was in my second summer at Harvard Summer School,  (2009) I got a firsthand look at what his trust & advocacy organization (Tierra Limpia/Deo Vindice Foundation) does in trying to help people keep their homes in the face of the national foreclosure crisis/epidemic hitting the United States for the past two years.   I don’t know where to begin except that I think I began to understand a little bit about money and homeownership over the summer, what it is and how it works, and it made me very interested in economics, which is not something I had ever really thought about before.  Working with my Dad has inspired me to refocus my educational plans on economics and history, instead of “just” pre-Law.

I suppose everybody has the idea that money is something fixed, tangible, and “real” in some way, and that money is just a medium of exchange that is used to buy things, like houses, like cars, like almost everything we have.   Last summer I learned a very different perspective on exactly how money works and what the relationship between money and property really is.  My parents both have Ph.D.s in Anthropology with specialties in Archaeology/Ethnohistory, so (obviously) I know that not all societies have anything remotely like what we call “money” and that “money” in fact is a relatively recent invention in cultural evolution/human history.

Homes of course, have a very, VERY long history in cultural evolution and human history, and it could be said that the increasingly “fixed” nature of the nightly sleeping place was part of what made humans “human” during the 3-5 million years or so between the earliest identifiably Hominoid ancestors and fully modern Homo Sapiens sapiens (Linnaeus).

What I learned from my dad over the summer, and what makes me think that I should study economics, is that HOMES are MONEY and MONEY is MADE FROM HOMES.   Obviously, it’s not quite that simple, but Dad says that that the economy of the United States of America really doesn’t produce anything anymore EXCEPT HOMES and MONEY—and that’s sad because America in the 19th century was probably the invention center of the world and in the 20th century (at least up through the 1960s) was still the manufacturing and production center of world.  But then Henry Kissinger and Nixon went to visit the Chinese Communists, and now the Chinese Communists are the leading capitalists (well, at least the leading manufacturers) in the whole world.

Money apparently comes into existence very systematically through loan applications.  I guess I always just thought that the government authorized a certain amount of money to be printed and that’s how we get money.  But instead, it turns out that money is a reward for productivity, or at least for maintaining the façade or semblance of productivity that well-behaved social conformity can apparently create: the more you conform to certain norms of money-management, credit handling, and “work ethic”, the more money you get—at least until the economy goes haywire like it did over the past ten years.  Then EVERYBODY gets money whether they are productive social conformists or not.  Politicians apparently do this as a way of buying votes and lulling people into somnolent catatonia where they really have no idea just how bad off they are, with their money being completely worthless and their homes being bigger and better and ever increasingly expensive in about the direct proportions (but opposite directions).

Now what money is came as a big shock to me, also.  “Money” is nothing but a “promise to pay” which by law must be accepted as a “tender” (i.e. offer) of payment.  Money itself is just (intrinsically) worthless paper.  But the money we put in our pockets and bank account ledgers all takes the form of “notes”, and all “notes” are basically “promises to pay.”  However, and this is where my Dad’s J.D. comes in handy, “notes” or “promises to pay”, when accepted by a National Banking Associations, are actually defined by law (Title 12 of the United States Code, Section 1813l) as “deposits in money.”

What this means is that when a National Banking association accepts a note, say, for a house worth $500,000.00, they are required by Federal law to itemize this on their “dual entry” ledger of assets and liabilities as an “asset” which is to say a “deposit” of $500,000.00.   Ironically, if a person comes into the bank with $500,000.00 in actual money, this sum must be listed on the bank’s dual entry accounting ledger as a “liability” for the simple reason that a deposit in cash must be repaid upon demand, while a “note” deposit will never be repaid: it becomes part of the Bank’s “Wealth” until it is returned or canceled upon final payment (but by then the bank has received payments of the principle amount of the note plus interest, which interest may amount, over 30 years, to 2-4 times the face value of the note).

I have come to understand that, in essence, credit extended by modern versions of traditional commercial paper has taken the place of “capital” as the motivating and controlling factor in the control and impulse of production in the modern world.   Struggles over the establishment, extension and expansion of personal and consumer credit shaped the growth and development of society during the 20th century from “progressive liberalism” of William Jennings Bryan and Lloyd George.  Metal-standards of currency (e.g. gold and sterling silver) were abandoned in favor of credit standards based on production, measured through income tax and contributions to programs such as social security, which seemed likely to measure both individual ability and need simultaneously.   Thus it is that Karl Marx’ 1875 restatement of Christian sharing first articulated in Acts 4:32-35, “from each according to his ability to each according to his need” became the motto of the modern redistributive socio-political order, even as communism itself was rejected.

In the United States and England, early 20th century governmental monetary and public-credit policies were synonymous with the planting of the seeds, which ultimately grew into the modern welfare state.  In the 1930s, the credit-inflationary economics of John Maynard Keynes took both the U.K. and U.S. by storm after the stock market crash of 1929 and in particular the election of Franklin Delano Roosevelt, and has basically dominated the economic policies of Western European and the Western Hemisphere generally up until the present time.

The conflict (the Hegelian “contradiction in all things”) which led to the current mortgage crisis, it seems to me, is that which has arisen is between private corporate interest in credit and welfare and the governmental policies of privatization coupled with “deregulation” of financial responsibility and “credit reserve” laws defining standards for “purchase on margin” or “minimum downpayment” requirements for the purchase of securities or other types of property (such as real estate) on credit.  Such standards were in fact imposed in 1933-34 as part of the adoption of Keynesian inflationary economics in the United States, via the enactment of the Securities and Exchange laws relating specifically to the issuance and marketing of “notes.”  The coupling of “deregulated” private bank credit lacking marginal reserve or downpayment requirements with governmental stimulus policies aimed to compensate for the lack of productivity, declining tax revenues, etc., has had the effect of setting up the economy analogous to a car on high acceleration with no brakes or steering wheel.

MERS getting whats coming to them NOTHING!

Read another great opinion about the thieves called MERS and their cohorts aka  banks or servicing companies.  The tide is turning and more and more websites like Neil Garfields are getting out the real story.  Send this story to as many people as you can.  Hundreds of thousands of Americans are being kept in the dark about their options by main stream media.  You can save your home from being foreclosed on.  Call Robert now to find out more 860-599-5557

Landmark Descision Opens Door for 60 Million Homeowners

Read here what is just starting to get out in the media about the Kansas court case defeating Mortgage Electronic Registration Systems aka, MERS.  You will see them listed on your foreclosure papers as a Nominee supposedly giving them the right to foreclosure and take families homes.  Start reading it all and contact us or Neil Garfield or anyone to help you save your home now.  The Tide has Turned, only if try.  For help now or more information call Robert 860-599-5557.

Wells Fargo Flap in Malibu.

Even though this story is being reported by the Wall Street Journal and the LA Times do not be fooled that these papers are working for you or our communities.  Yea it is way bad that a Wells Fargo Exec. is taking advantage of a Malibu, CA empty foreclosed property by squatting there and throwing private parties.  The real issues of banks gone bad is never reported by major media. The bank or servicing co. is not being the holder in due course on most if not all loans and many other issues never get reported and we still allow most foreclosures to go through even though they have NO rights to the property in the first place. The NY Times, WSJ and many others are not working for you at all.  They just report on stories like this only to sell papers and divert us from the real issues of the fraud going on right under our noses. Want to do something to help or help yourself?  Do you think you might lose your home in foreclosure and to a servicing company no less?  Are you behind in your payments?  Is your home worth less now than the mortgage balance?  Contact us now for your own personel property or you may want to join our class action suit we are putting together against Wells Fargo?

Paragraph 5 of the August 29 2009 Bank of America Modification

In my opinion, Bank of America has admitted the truth of all my contentions regarding (1) the legality of mortgages and (2) the illegality of the “lenders'” positions in this business.  BAC has done so by inserting the following paragraph in the “Loan Modification Agreement” being circulated to “borrowers” as of August 29, 2009, at least in California:

“In consideration of this Modification, Borrower agrees that if any document related to the Security Instrument, Note, and/or Modification is lost, misplaced, misstated, inaccurately reflects the true and correct terms and conditions of the loan as modified, or is otherwise missing, Borrower(s) will comply with Lender’s request to execute, acknowledge, initial,  and deliver to Lender any documentation Lender deems necessary.  If the original promissory note is replaced the Lender hereby indemnifies the Borrower(s) against any loss associated with a demand on the original note.  All documents Lender requests of Borrower(s) shall be referred to as “Documents.”  Borrower agrees to deliver the documents within ten (10) days after receipt by Borrower(s) of a written request for such replacement.”

So now, what does all this mean?  Let’s start with the line “If the original promissory note is replaced the lender hereby indemnifies the Borrower(s) against any loss associated with a demand on the original note.”  To my ears and eyes, this constitutes a clear admission that (1) the original promissory note is necessary to the collection of the debt as a negotiable instrument under Federal Law, 100% of the time, (2) any “Borrower” who pays a penny on a note where the original note has been “lost, misplaced….or is otherwise missing” is paying on a debt s/he no longer owes or has any legal obligation to pay.

“In consideration of this Modification”—“Lender” is asking “Borrower” to give up certain VERY valuable rights, including (1) the right to sue for Fraud, (2) the right to assert privity of contract, (3) the right to assert Holder-in-Due Course Defense, (4) some if not all rights under RESPA and TILA, especially to the degree that the “modified” agreement permits the “Lender” UNILATERALLY to (a) determine “the true and correct terms and conditions of the loan as modified,” (b) not only require the Borrower unquestioningly to accept “the true and correct terms and conditions of the loan as modified”, but also [and equally unquestioningly] “to execute, acknowledge, initial and deliver to Lender any documentation Lender deems necessary.”  This is a “contract of adhesion” on top of a “contract of adhesion”—a unilateral and wholly oppressive domination of and manipulation by the “lender” against the “borrower”.   I BEG OF YOU—DO NOT SIGN ANY MODIFICATION WHICH CONTAINS THE LANGUAGE OF “PARAGRAPH 5” AS QUOTED ABOVE, NOR OF ANYTHING SIMILAR.  IT IS A TRAP.  You are being asked to give up ALL of your most valuable contractual rights!  But please, tell me all about your modification if it has this or any similar language—you may report all such incidents to my assistant Robert Joseph Ponte at 860-599-5557.

Charles Edward Lincoln, III

Deo Vindice

May God be with you, and with thy Spirit!

512-923-1889