DEFENDANTS-APPELLANTS REPLY CHALLENGE TO
PLAINTIFF-RESPONDENT'S ARGUMENT
POINT I
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"WELLS FARGO IS ENTITLED TO A FINAL JUDGEMENT ON
FORECLOSURE AND SALE BECAUSE IT MADE
A PRIMA FACIE SHOWING OF ENTITLEMENT TO
SUMMARY JUDGEMENT."
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Respondent's own caption
Plaintiff-Respondent's Brief makes the following statement on
page 10, pagagraph 1:
"In the context of a mortgage foreclosure, it is well
settled that the plaintiff is entitled to summary judgement
when it establishes that it is entitled to judgement as a
matter of law by producing the 'mortgage, the unpaid note,
and evidence of default.'"
First, Plaintiff-Respondent never asserted or put into evidence
that at the time of the filing of the foreclosure action, that they
ever had in its possession, the original signed note and mortgage on
the foreclosed 1995 mortgage, or the 2005 $380,346.31 gap mortgage,
or for that matter the original signed consolidated note and
mortgage.
This is critical as any current or later holder of the original
notes and mortgages leaves Defendants-Appellants obligated to them.
As an example, though as a non controlling case, an action to obtain
a confessed judgment on notes in the Circuit Court of Prince William
County, Virginia, where the original note had passed from the
original note holder to C.F. Trust, the following action was
removed to the federal district court, who issued the following:
"J.A. at 27, C.F. Trust was essentially an "innocent
holder of what would appear on its face to be a valid
note and confess[ed] judgment," with "nothing in the
record to suggest . . . that C.F. Trust . . . was in any
respect the actual creditor involved in the alleged
violation of ECOA," J.A. at 26-27.
Respondent's own statement "...by producing the 'mortgage', the
unpaid note..." speaks for itself. Respondent only put forth the
original 1995 $162,000.00 mortgage which was paid in full (R. A- 174
& 409) and satisfied (R. A-175 & 410), see Appellants' Brief, POINT
I on page 14.
Respondents only put before the Lower Court the 1995 $162,000.00
and a "gap" mortgage of $380,346.31 (R. A-107 - A-133) in their
Motion for Summary Judgement (R. A-87 - A-153). Nowhere in any of
Respondent's affidavits or exhibits did they ever assert under oath
to still have actual possession of the original signed note and
mortgage for the 1995 mortgage, the 2005 "gap" mortgage, or the even
the consolidated mortgage, in spite of demands in Defendants-
Appellants Bill of Particulars paragraph 15 b) (R. A-81 - A-86)
which demanded "Defendants demand a copy of all mortgages or liens
in the possession of Plaintiff(s) prior to the filing of the instant
action;" Respondent never responded to the Demand.
Plaintiff-Respondent's Brief, page 10 par 2 makes the following
statement:
"Here, Wells Fargo presented the supreme court with
a complete copy of the consolidated note for $522,200.00
executed by th the Websters (R. at A-191 - A-193). ...
Wells Fargo also presented the supreme court with the
accompanying consolidated mortgage executed by the
Websters. (R. at A-194 - A-214)."
This is a total fabrication, if not a downright lie, as
Plaintiff-Respondent tried to shield the existence of the
Consolidated Mortgage because it was foreclosing on the 1995
$162,000.00. It was Defendants-Appellants who submitted a copy of
the Consolidated Mortgage (R. A-194 - A-214) in their Cross Motion
(R. A-154 - 230). Even the title at the top of the page (A-191)
states that the exhibit was from Appellants Cross Motion. This was
a critical part of Defendants-Appellants' Cross Motion before the
Lower Court as the following paragraphs (starting at R. A-160) from
that motion state:
"22. Plaintiffs have failed to put forth the only true
Mortgage, the surviving Consolidated Mortgage, (Defendants
Exhibit 07), the mortgage Plaintiffs committed to on May 13th,
2005, a 2/6 Adjustable Arm, FIRST MORTGAGE LOAN, in the amount
of $522,200.
"23. Defendants submit as Exhibit 06 a Consolidation Agreement
dated May 16, 2005, which Plaintiffs avoided and shielded in
their Affidavit in Support, which is a Fannie Mae/Freddie Mac
Uniform Instrument Form 3172 1/01 document which provides on
page 2 of 9 the following:
"II. AGREEMENT TO COMBINE NOTES AND MORTGAGES (A) By
signing this Agreement, Lender and I are combining
into one set of rights and obligations all of the
promises and agreements stated in the Notes and
Mortgages including any earlier agreements which
combined, modified, or extended rights and obligations
under any of the Notes and Mortgages. THIS MEANS THAT
ALL OF THE LENDER'S RIGHTS IN THE PROPERTY ARE COMBINED
SO THAT UNDER THE LAW LENDER HAS ONE MORTGAGE AND I HAVE
ONE LOAN OBLIGATION (emphasis added) which I will pay as
provided in this Agreement. This combining of notes and
mort- gages is known as a 'consolidation'."
"III. AGREEMENT TO CHANGE TERMS OF THE CONSOLIDATED
NOTE Lenger and I AGREE THAT THE TERMS OF THE NOTES ARE
CHANGED AND RESTART TO BE THE TERMS OF THE 'CONSOLIDATED
NOTE'(emphasis added) which is attached to this
Agreement as Exhibit C." ...
"The CONSOLIDATED NOTE WILL SUPERSEDE (emphasis added)
all terms, covenants, and provisions of the Notes."
"IV. AGREEMENT TO CHANGE TERMS OF THE CONSOLIDATED
MORTGAGE Lender and I AGREE THAT THE TERMS OF THE
MORTGAGES ARE CHANGED AND RESTATED TO BE THE TERMS OF
THE 'CONSOLIDATED MORTGAGE'(emphasis added) which is
attached to this Agreement as Exhibit D. The
Consolidated Mortgage secures the Consolidated Note and
will constitute in law a single lien upon the property.
I agree to be bound by the terms set forth in the
Consol- idated Mortgage which will supersede all terms,
covenants, and provisions of the Mortgages."
24. As stated above, the Consolidated Mortgage must be
"...attached to this Agreement as Exhibit D." Plaintiffs failure
to submit to this Court, the Consolidated Mortgage (Exhibit 07)
along with the signed Agreement as required by above cited
Fannie Mae/Freddie Mac Uniform Instrument Form 3172 1/01
document, was, upon information and belief, a deliberate
manuever to retain the impression before this Court that there
exists two active mortgages so that they, the Plaintiffs, could
claim latches by using an alleged earlier dated mortgage.
25. Plaintiffs never submitted a Consolidated Mortgage and
Agreement, but instead incorrectly submitted to the Court a
mortgage for $380,346.31.
Plaintiff-Respondents now must desperately try to convince this
Court that their foreclosure action was on the consolidated note and
mortgage because as stated above "The CONSOLIDATED NOTE WILL
SUPERSEDE all terms, covenants, and provisions of the Notes." and
"SO THAT UNDER THE LAW LENDER HAS ONE MORTGAGE AND I HAVE ONE LOAN
OBLIGATION" ... "THE 'CONSOLIDATED MORTGAGE' which is attached to
this Agreement as Exhibit D. The Consolidated Mortgage secures the
Consolidated Note and will constitute in law a single lien upon the
property.
Plaintiff-Respondent had to shield the consolidated mortgage as
shown above, because the "consolidation" was a fraud as Respondent
could not legally "consolidate" the original 1995 $162,000.00
mortgage in May 2005, because it did not own the mortgage until
January 10, 2007 or according to the backdated MERS "sale" to Well
Fargo, "...effective as of the 1st day of December 2006." and
notarized December 20, 2006. This assignment only took place after
the issue was raised in Defendants-Appellants' Answer and Cross
Motion (R. A-154 - A-230).
Wells Fargo did not present "a prima facie showing of
entitlement to summary judgement" as the Complaint was for the
paid in full 1995 $162,000.00 mortgage, and not on what they
claim is the consolidated mortgage.
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