JUDICIAL BIAS
AUGUST 10, 2022 HEARING ON MOTION TO RECONSIDER, JUDGE SHANNON RULES AGAINST ME FOR FAILURE TO APPEAR, BUT I DID APPEAR, 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.”
2018, CONTEMPT OF COURT: MOTION TO DISMISS WITHOUT PREJUDICE, AFTER APPEALS COURT HAS RULED IN MY FAVOR, JUDGE MCELROY SAYS, “NO, I’M NOT GOING TO ALLOW THAT, LET’S JUST SEE WHAT THE BANKS DO NEXT.” SO THREE YEARS LATER, DECEMBER 2022,US BANK COMES BACK WITH FRAUDULENT DOCUMENTS, ALTERED INDORSEMENT, AND BOGUS TESTIMONY.
CONTEMPT OF COURT: RECORDED IN HEARING, JUDGE
McElroy asks, “Do you want to waive your rights tp 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. This 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
NMSA 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 NMSA 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 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.” [36] 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. [37] The United States Supreme Court established the basic rule early in the 1873 case
of Carpenter v. Longan: [38] "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 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 JPMorgan 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, America's Wholesale Lender was the Originator of the Loan and
the First Indorsement
Bank of America Purchased Countrywide, America's Wholesale Lender in June
of 2008 and Is the Second Indorser
The third Indorsement, US Bank Indorsement is on the WRONG 'pay to the order
of' 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 America's
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 #39 “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, "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, 2012, 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 mortage
was in good stead and not in default. This is Fraud. This letter is marked with a
narrow yellow sticky note. 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 nonbankruptcy 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").
BOOK DIRECT
PURCHASE QUOTE
YourCAMContractor
