DISCUSSIONS OF JUDICIAL BIAS AND RELEVANT ELEMENTS

JUDICIAL BIAS

EXAMINE THE DOCKET

AUGUST 10, 2022 HEARING ON MOTION TO RECONSIDER, JUDGE SHANNON RULES AGAINST ME FOR FAILURE TO APPEAR, BUT I DID APPEAR, I DROVE ALL THE WAY TO ALBUQUERQUE TO APPEAR IN HIS FAMOUS ZOOM HEARING, BUT WE WERE NOT ALLOWED IN – COULD HEAR DISCUSSIONS, THEN FINALLY CLERK COMES ON AND SAYS, “MR PADILLA, YOU ARE DISMISSED.” NO EXPLANATION.

2018, CONTEMPT OF COURT: MOTION TO DISMISS WITHOUT PREJUDICE, AFTER APPEALS COURT HAS RULED IN MY FAVOR, JUDGE MC ELROY SAYS, “NO, I’M NOT GOING TO ALLOW THAT, LET’S JUST SEE WHAT  THE BANKS DO NEXT.” SO FOUR YEARS LATER, DECEMBER 2022,US BANK COMES BACK WITH FRAUDULENT DOCUMENTS, ALTERED INDORSEMENT, AND BOGUS TESTIMONY WITH A MOTION FOR SUMMARY JUDGMENT.

CONTEMPT OF COURT: RECORDED IN HEARING, JUDGE

McElroy asks, “Do you want to waive your rights to the bankruptcy order,

because I am going to rule in favor of the Plaintiff?” Attorney Natelson and I both said, “NO!”  Hearing of November 16, 2016.

District Court has ignored, misunderstood, or has been ignorant of, a Stipulated Order handed  down by a Superior Court, Federal Chapter 11 Court, case 11-05-10321 setting the trigger date for the Statute of Limitations on Foreclosure at May 19, 2006.  Six Years Hence is January 19, 2011.  Their case is time-barred.

i. [3]  KeyCite Citing References for this Headnote

ii. 51 Bankruptcy

iii. 51IV Effect of Bankruptcy Relief;

Injunction and Stay

iv. 51IV(C) Relief from Stay

v. 51k2435 Proceedings

vi. 51k2442 k. Determination and Relief;

Conditions. Most Cited Cases

1. (Formerly 51k217.5(1))

vii. An order which lifts the automatic stay

returns the parties to the legal relationship that

existed before the stay became operative, and

whatever non bankruptcy law governed the

transactions and relationship of the parties prior to

application of the Bankruptcy Code is the law

which controls the conduct of the parties once the

stay is lifted. Bankr.Code, 11 U.S.C.A. §

362(d).Stay

The allegations in the complaint and the assignment of mortgage show the note was

transferred knowing a default had occurred and the transfer is subject to UCC 9

requiring proof of the transfer chain and not UCC 3.

In addition, where the loan documents demonstrate that the loan is covered by HOEPA

coverage, assignees “shall be subject to all claims and defenses with respect to that

mortgage that the consumer could assert against the creditor.” 15 U.S.C. § 1641(d)(1).

This provision mirrors the FTC Holder Rule and creates assignee liability for all state

and federal claims and defenses. For monetary damages claims under TILA, it provides

an exception to general rule that violations must appear on the face of the documents.

Pulphus v. Sullivan, No. 02 C 5794, 2003 U.S. Dist. LEXIS 7080, at *64 n.11 (N.D. Ill.

April 25, 2003); Dash v. Firstplus Home Loan Trust 1996-2, 248 F. Supp. 2d 489

(M.D.N.C. 2003); Cooper v. First Gov't Mortgage & Investors Corp., 238 F. Supp. 2d 50

(D.D.C. 2002); Bryant v. Mortgage Capital Resource Corp., 2002 U.S. Dist. LEXIS1566,

at **17-22 (N.D. Ga. Jan. 14, 2002); Mason v. Fieldstone Mortgage Co., U.S. Dist.

LEXIS 16415 (N.D. Ill. 2001); Vandenbroeck v. ContiMortgage Corp., 53 F.Supp. 965,

968 (W.D. Mich. 1999); In re Rodrigues, 278 B.R. 683 (Bankr. D.R.I. 2002); In re

Jackson, 245 B.R. 23 (Bankr. E.D. Pa. 2000); In re Barber, 266 B.R. 309 (Bankr. E.D. Pa.

2001); In re Murray, 239 B.R. 728, 733 (Bankr. E.D. Pa. 1999).

In the course and conduct of offering and making HOEPA mortgage loans, defendant in

numerous instances has violated, and continues to violate, the requirements of HOEPA

and Regulation Z by selling or otherwise assigning such loans without furnishing the

following notice to the purchaser or assignee:

Notice: This is a mortgage subject to special rules under the federal Truth in Lending Act.

Purchasers or assignees of this mortgage could be liable for all claims and defenses with

respect to the mortgage that the borrower could assert against the creditor, in violation of

Section 131(d)(4) of TILA, 15 U.S.C. § 1641(d)(4), and Section 226.32(e)(3) of

Regulation Z, 12 C.F.R. § 226.32(e)(3).

MISC. FRAUD

“Any false representation of material facts made with knowledge of falsity and with

intent that it shall be acted on by another in entering into contract, and which is so

acted upon, constitutes ‘fraud,’ and entitles party deceived to avoid contract or

recover damages.”Barnsdall Refining Corn. v. Birnam wood Oil Co., 92 F 2d 817.

“The contract is void if it is only in part connected with the illegal transaction and

the promise single or entire.” Guardian Agency v. Guardian Mutual. Savings Bank, 227

Wis 550, 279 NW 83.

Lender Liability 1. Duty of Good Faith In every New Mexico contract there is an implied

“duty of good faith and fair dealing upon the parties in the performance and enforcement

of the contract.” Paiz v. State Farm Fire & Cas. Co., 1994-NMSC-079, ¶ 31, 118 N.M.

203, 880 P.2d 300 (internal quotation marks & citation omitted), limited on other

grounds, Sloan v. State Farm Mut. Auto Ins. Co. (In re Sloan), 2004-NMSC-004, 135

N.M. 106, 85 P.3d 230. “The breach of this covenant requires a showing of bad faith or

that one party wrongfully and intentionally used the contract to the detriment of the other

party.” Id. (internal quotation marks & citation omitted). “[This] implied covenant of

good faith and fair dealing requires that neither party do anything that will injure the

rights of the other to receive the benefit of their agreement.” Planning & Design

Solutions v. City of Santa Fe, 1994-NMSC-112, ¶ 28, 118 N.M. 707, 885 P.2d 628, 635

(internal quotation marks & citation omitted). New Mexico has no reported cases

construing the modern definition of “good faith” in Article 1 of the UCC. Compare

NMSC 1978, § 55-1-201(b)(20) (2005) (defining “good faith” as “honesty in fact and the

observance of reasonable commercial standards of fair dealing”) with NMSC 1978, § 55-

1-201(b)(19) (1992) (defining “good faith” as “honesty in fact in the conduct or

transaction concerned”).  the Golden Rule of Mortgage Foreclosures," which is that such

foreclosures cannot proceed without production of the original promissory note signed at the closing. Nor will a mere copy of the note suffice. [23]  There could be 100 copies of the original note, but that would not create a right of foreclosure in 100 plaintiffs. To the bank’s argument that a copy of the promissory note should be enough, ask any banker if he/she would be willing to accept a copy of a check.

There are good practical reasons for the possession requirement. If the maker of the note

pays a person not entitled to enforce, he/she is not discharged from liability on the note, and

faces the prospect of having to pay the true owner when that person surfaces with proof of

ownership of the note (see §§3-601 and 3-602 above). [24]  Courts must take special care not to

expose the maker to such double liability.

Security Follows the Debt

The common law was clear that the mortgage contract and the mortgage deed are mere security

for the payment of the promissory note (the debt). It is a common law maxim that

security follows the debt.   This means the mortgage travels along with the promissory note,

and that the note is the important item, not the mortgage itself. Thus whoever has the promissory

note is the only entity that can enforce the mortgage. The courts are more or less unanimous on

this.  The United States Supreme Court established the basic rule early in the 1873 case

of Carpenter v. Longan:  The note and mortgage are inseparable; the former as essential, 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. . . .  The mortgage can have no separate existence. When the note is

paid the mortgage expires. It cannot survive for a moment the debt which the note represents.

This dependent and incidental relation is the controlling consideration . . . .A purported

assignment of a mortgage to a bank is not proof of a transfer of a promissory note secured by the

mortgage, since the mortgage follows the note but not vice versa but the courts won’t let someone

foreclose just because that someone thinks they are the right entity to do it, or really, really,

really wants to foreclose. They have to prove they are a PETE, person entitled to enforce, by

clear evidence. Wishing that they had that evidence is not enough. Indeed, as discussed above, if

the buyer pays the wrong person, he/she still owes the debt See Bank of New York v. Romero, 302 P.3d 1 (N.M. 2014); 255 P.3d at 1275; In re David A. Simpson, P.C., 711 S.E.2d 165 (N.C.App. 2011); Schwartzwald, 194 Ohio App. 3d at 644;  U.S. Bank Nat. Ass'n v. Kimball , 27 A.3d 1087 (Vt.

2011).

Joshua R Simms PC

1000 Eubank Blvd Ne, Ste C

Albuquerque,  NM  87112-5375  |   view map

(505) 266-2209

In 2012, the Ohio Supreme Court held that a party who does not possess a properly indorsed

promissory note at the time the foreclosure proceeding is begun lacks standing, and is not the real

party in interest, and that these defects cannot be cured by transfers and indorsements

made after the complaint has been filed; see Federal Home Loan Mortg. Corp. v.

Schwartzwald,

134 Ohio St.3d 13, 979 N.E.2d 1214 (2012).  Although some courts have been in

confusion as to this, both the Official Comment to §3-301 and the cases make it

clear that the holder of the note need not also be the owner of the underlying

obligation (i.e., the mortgagee or the mortgagee’s assignee); see  Bank of America,

N.A. v. Inda , 48 Kan.App.2d 658, 303 P.3d 696 (2013).  Thus, a servicer in

possession of the note, acting as an agent of the owner of the note, can qualify as

a PETE and therefore prosecute the foreclosure action; see J.E. Robert Co., Inc. v.

Signature Properties, LLC, 309 Conn. 307, 71 A.3d 492 (2013). See also Bank of

New York v. Romero, 320 P.3d 1 (N.M. 2014); and Bank of America v. Kabba, 276

P.3d 1006 (Okla. 2012).

{10} The Romeros also pointed out that the copy of the “original” note Flannigan

purportedly authenticated was different from the “original” note attached to the Bank

of New York’s foreclosure complaint. While the note attached to the complaint as a

true copy was not indorsed, the “original” admitted at trial was indorsed twice: first,

with a blank indorsement by Equity One and second, with a special indorsement

made payable to JPMorgan Chase. When asked whether either of those two

indorsements included the Bank of New York, Flannigan conceded that neither did,

but he claimed that his review of the records indicated the note had been transferred

to the Bank of New York based on a pooling and servicing agreement document that

was never entered into evidence.

(1) possession alone is insufficient,

(2) the “original” note introduced by the Bank of New York at trial with the two undated indorsements includes a special indorsement to JP Morgan Chase, which cannot be ignored in favor of the blank indorsement, the allegations in the complaint and the assignment of mortgage show the note was transferred knowing a default had occurred and the transfer is subject to UCC 9 requiring proof of the transfer chain and not UCC 3. UCC § 3-302(a). Under Article 3, a holder in due course of a negotiable mortgage note takes the mortgage note free of (a) all prior claims to or regarding the mortgage note by any person and (b) most defenses to enforceability of the mortgage note that may be raised by parties with whom the holder in due course has not dealt. See UCC §§ 3-305 and 3-306; see also Provident Bank v. Community Home Mortgage Corp., 498 F. Supp. 2d 558, 565 (E.D.N.Y. 2007). The defenses to which a holder in due course may be subject are found in UCC § 3-305, and include: a defense of the obligor based on (i) infancy of the obligor to the extent it is a defense to a simple contract, (ii) duress, lack of legal capacity, or illegality of the transaction which, under other law, nullifies the obligation of the obligor, (iii) fraud that induced the obligor to sign the instrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms, or (iv) discharge of the obligor in insolvency proceedings.

Under UCC § 3-302(a): [A] “holder in due course” means the holder of an instrument if:

(1) the instrument when issued or negotiated to the holder does not bear such apparent

evidence of forgery or alteration or is not otherwise so irregular or incomplete as to call

into question its authenticity; and (2) the holder took the instrument (i) for value, (ii) in

good faith, (iii) without notice that the instrument is overdue or has been dishonored or

that there is an uncured default with respect to payment of another instrument issued as

part of the same series, (iv) without notice that the instrument contains an unauthorized

signature or has been altered, (v) without notice of any claim to the instrument described

in Section 3-306 [regarding claims of a property or possessory right in the instrument or

its proceeds, including a claim to rescind a negotiation and to recover the instrument or

its proceeds], and (vi) without notice that any party has a defense or claim in recoupment

described in Section 3-305(a).

CHAIN OF INDORSEMENTS:

Countrywide, Americas Wholesale Lender was the Originator of the Loan and

the First Indorsement Bank of America Purchased Countrywide, Americas Wholesale Lender in

July of 2008 and Is the Second Endorser,

The third Indorsement, US Bank Indorsement is on the WRONG stamp pay to the order

line – It should be above the Bank of America Indorsement – Countrywide was

no longer in existence as of 2013 when US Bank retained ownership – it was

purchased in 2008 by Bank of America (the Assignment of Mortgage of

September 6, 2013 was recorded by Bank of America as Nominee of Americas

Wholesale Lender. For the record – I never received a Notice of the Assignment

of Mortgage which is a RESPA violation.

CHAIN OF INDORSEMENTS are out of sequence on the Note

See Natelson’s Interrogatories asking, When did US Bank receive the assignment

of the note?  The answer was SEPTEMBER 9, 2013 – it is in the record proper.

The fact that the NOTE was not present when the Foreclosure Motion was filed,

but mentioned within the foreclosure document does not matter – Exhibit A, the

Note, and Exhibit C, the Assignment, were both missing and did not appear until

7 days later (someone was probably trying to figure out how to fix the flawed

Indorsement Page) – the RULE IS THE RULE, the Note was not present.

The Motion to Lift the Stay , the Stipulated Agreement to Lift the Stay and

the Decree relating to lifting the Stay on which the Date from which the banks

were allowed to foreclose is established, precludes the rhetoric of the

Confirmation of the Plan itself. The RULE as to the date from which foreclosure is

allowed has nothing to do with whether I would win or lose if the banks

foreclosed before 2008 based on what the Confirmation states – the RULE IS

THE RULE! IT WAS ALREADY 2008 WHEN THE BANKS DISCOVERED

THAT THEY COULD FORECLOSE WHEN THE PLAN WAS CONFIRMED IN

2006. It matters not that the banks agreed that they would not foreclose until after

December 2008; the date was established by Decree and Law that they could

foreclose when the Plan was Confirmed and that date was May 19, 2006 –  It was

learned by the banks in 2008 that they could have foreclosed as early as May 19,

2006 (my attorney Hughson said, &quot:  They were too stupid to know that the Stay

was Lifted when the Plan was Confirmed, but they did not foreclose even after

the Chapter 11 was dismissed in December 2009 and the final decree in January

2010 – they had plenty of time to foreclose within the 6 year statute but did not do

so because they knew that they had TILA and HOEPA and Fraud to answer to,

so they waited until my statute of limitations ran out and palmed it off on some

other lender who is not a Holder in Due Course because US Bank accepted a

mortgage assignment they knew to be in DEFAULT and foreclosure – Bank of

America had harassed me from 2008 telling me that they were foreclosing on

110A (and 110B) – they knew that they could foreclose, and they did not do so in

a timely manner – the Statute of Limitations had expired May 19, 2011, before the

Note was assigned to US Bank, September 6, 2013.

 

There were NO mortgage payments after 2004 – the Plaintiff fraudulently

attempted to claim mortgage payments by someone paying $4,000 cash in 2013

– there is a letter with the exhibits in the 4 inch thick binder labeled Exhibit O,

110A where it seems that Wells Fargo was the owner of the note until 2012,

Then someone paid $4,000 twice, I think in order to pretend that the mortgage

was in good stead and not in default. This is Fraud. This letter is August 2013 is date

THE STATUTE OF LIMITATIONS HAD RUN BEFORE US BANK WAS EVEN

ASSIGNED THE NOTE BY BANK OF AMERICA IN SEPTEMBER 2013.

The Statute of Limitations expired January 12, 2011, NOT May 19, 2012 and the case

was not prosecuted in a timely manner; therefore, the foreclosure case on 110B –

D-820- CV-2005-00013 is time-barred. [Lift of Stay reverts parties' status to pre Chapter

11 filing]

[3]  KeyCite Citing References for this Headnote

51 Bankruptcy

51IV Effect of Bankruptcy Relief; Injunction and Stay

51IV(C) Relief from Stay

51k2435 Proceedings

51k2442 k. Determination and Relief; Conditions.

Most Cited Cases

(Formerly 51k217.5(1))

An order which lifts the automatic stay returns the parties

to the legal relationship that existed before the stay became

operative, and whatever non-bankruptcy law governed the

transactions and relationship of the parties prior to

application of the Bankruptcy Code is the law which

controls the conduct of the parties once the stay is lifted.

Bankr.Code, 11 U.S.C.A. § 362(d).

1.  Parties were returned to legal relationship status prior to

filing on January 12, 2005; therefore 6 years hence is the

statute of Limitations on Foreclosure, which is January 12,

2011.  Plaintiff had over a year to foreclose during time

case was open in District Court even after the close of

Chapter 11 on January 7, 2010. They failed to do so.

OTHER CLAIMS AND DEFENSES TO CONSIDER Fair Housing Act, 42 U.S.C.

§3601, et seq. This is often a reverse redlining claim. The homeowner must be: 1. A

member of a protected class. (Woman) 2. They must have attempted to engage in a real

estate related transaction and qualified to do so. 3. And the lender must have refused to

transact with them on fair terms. 4. And the lender must have continued to make loans to

others with similar qualifications as the homeowner. However, if the lender initiates

contact with the homeowner, the final requirement might not be necessary. •

Instruments Deemed Mortgages and the Nature of a Mortgage, § 697.12, Fla. Stat. •

Interest and Usury; Lending Practices, §687. 12 Fla. Stat. • Negligent/intentional

misrepresentation • Breach of Implied Warranty of Merchantability for Goods (in home

improvement sale) • Breach of Fiduciary Duty • Fraud • Unconscionability • Unjust

Enrichment • Waiver • Fraud in the Inducement

RESPA – ACLU

https://www.aclu.org/files/assets/rjp_ff_9c_0101-0200.pdf

RICO Act affords triple actual damages and attorney's fees. 18 U.S.C. §1961, et seq., §§772.103, 772.104,

Fla Hirsch v. Bank of America, 328 F. 3d 1306 (11th Cir. 2003) (provides a two-part test in

analyzing RESPA kickback violations involving a mortgage broker; first the court must

"determine whether the broker has provided goods or services of the kind typically

associated with a mortgage transaction then, the court must determine whether the total

compensation paid to the broker is reasonably related to the total value of the goods or

services actually provided Friedman v. Market Street Mortg. Corp., 520 F.3d 1289 (11th Cir. 2008) (RESPA does not provide a cause of action where a fee for services was rendered but does provide a cause of action when a plaintiff alleges that "no services were rendered in exchange for a settlement fee.