DEFENDANTS-APPELLANTS REPLY CHALLENGE TO
PLAINTIFF-RESPONDENT'S ARGUMENT
POINT III
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THIS ACTION IS NOT BASED ON A MORTGAGE
WHICH WAS PAID AND SATISFIED.
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respondent's actual caption
Plaintiff-Respondent's above stated caption is a total lie, and
their own submitted exhibits and sworn to Affidavits show that it is
not true, as shown below. Plaintiff through a deceitful game of
"who's on first" must convince this Court that their so-called
"consolidated" mortgage was the basis for their foreclosure. The
evidence is clear as shown below.
Respondents state in their Brief, page 17 paragraph 2:
"As indicated above, the Websters appear to be confused by
the legal documents in this proceeding. In their brief, the
Websters quote pieces of legal documents which, according to
them, indicate that Wells Fargo is foreclosing on a loan
that has been paid and satisfied. (Appellants Brief at
14-16). This is not the case."
Defendants-Appellants bring the attention of this Court to
Plaintiff's Affidavit, Sworn to by Sean Nix, Vice President Loan
Documentation for Wells Fargo, in their motion for summary judgement
(R. A-87 - A-153) at paragraph 4, and reiterates the same at
paragraph 12, which merely states it "has demonstrated the evidence
of the Note and the Mortgage being foreclosed herein" and fails to
state that they are actually in the possession of any original
signed notes or mortgages. These are experienced executives, and
know fully well what the law required, and their omission is prima
facie proof that they lacked these original documents, or they would
have sworn to possession in their Affirmation, which states:
"... As such, Plainitiff has demonstrated the evidence of
the Note and the Mortgage being foreclosed herein, bearing
the signature of said Defendants. If Defendants wish to
challenge the documentary evidence proffered by the
Plaintiff, then they must do so by submission of material
evidence noting its deficiency with specificity."
"This action was brought to foreclose a mortgage executed
by JEAN ALLEN WEBSTER and SCOTT E. WEBSTER dated the 24th
day of August, 1995, and recorded in the office of the
Clerk of the County of PUTNAM on the 5th day of September,
1995, at Liber 2110 of Mortgages at Page 320. Said
mortgage was duly assigned by assignment dated the 8th
day of May, 2001, and recorded on the 20th day of
September, 2001... Said mortgage is to be assigned by an
assignment to be recorded in the Office of the Clerk
of Putnam." (Defendants
"Plaintiff is also holder of a mortgage recorded on June 20,
2005, Book/Page 4577/312..." [in the amount $380,346.31
which was their Exhibit "E"]
(Plaintiff-Respondent's Affirmation of Regularity attached
to Plaintiff's initial motion for summary judgement
dated February 13, 2007
Plaintiff-Respondent submitted in their above stated motion for
summary judgement, as their Exhibit "E", the "gap" Mortgage in the
amount $380,346.31 (R. A-107 - A-133). Plaintiffs never submitted
evidence of a consolidated mortgage because it was never
consolidated in the first place because the original 1995 Mortgage
was still owned and in the possession of MERS until at least January
10, 2007, after Plaintiff filed their foreclosure action.
Plaintiff-Respondent also submitted their above mentiioned
motion as their own Exhibit "G" (R. A-141) from Prime Title search
which clearly states "(A) MORTGAGE TO BE FORECLOSED... Amount
$162,000.00...Dated August 24, 1995"
Plaintiff-Respondent's own submitted Assignment of Mortgage,
(R. A-178, A-134, A-416) which clearly states:
"...Assignor in consideration for One or More Dollars
($1.00) paid by Wells Fargo Bank, N.A. ... Assignee, hereby
assigns unto the Assignee, a certain mortgage made by SCOTT
E. WEBSTER and JEAN ALLEN WEBSTER, given to First Fidelity
Bank, N.A., to secure the sum of one hundred and sixty two
thousand dollars ($162,000.00) and interest dated on the 5th
day of September, 1995..."
Plaintiff's Assignment clearly reflects the recording of a sales
contract "...for one or more dollars ($1.00)" notarized December 20,
2007.
Plaintiff-Respondent also submitted in their above stated motion
for summary judgement as their Exhibit "H" their Notice of Pendency
of Action dated December 14, 2006, (R. A-43) one day before the
filing of their Complaint, which clearly states:
"... upon the complaint... for the foreclosure of a mortgage
bearing date the 24th day of August, 1995, executed by JEAN
ALLEN WEBSTER and SCOTT E. WEBSTER to secure the sum of
$162,000.00..."
Nowhere in that Notice of Pendency is there the slightest
mention of a Consolidated Mortgage that secures the lenders rights
to Appellants "forclosed" property.
Plaintiff's Complaint states for paragraph SECOND "On or about
the 24th day of August, 1995, ... [defendants] ... a note ... to pay
the sum of $162,000.00 ... THIRD ... a mortgage in the amount of
$162,000.00 which mortgage was recorded...September 1995." and
proceeds to further state: "Said mortgage is to be assigned by and
Assignment to be recorded..." Nowhere in the complaint is there any
statement about a consolidated mortgage to secure any note or lien.
Clearly, Plaintiff-Respondent and their attorneys were,
according to their own affidavits and evidence that was presented to
the Lower Court by them, that they were clearly trying to foreclose
on the 1995 $162,000.00 Mortgage that was paid in full and not on
the Consolidated Mortgage which they never filed as a mortgage, let
alone even paid a mortgage tax on.
Plaintiff-Respondent's Brief states for their POINT III on page
18, states:
"The Websters' aggument that a certificate of satisfaction
should have been filed on the 1995 loan is irrevelant to the
instant appeal. The mortgage being foreclosed upon, the
consolidated loan, has not been satisfied..."
The reason Plaintiff did not file the satisfaction of mortgage
on the 1995 Mortgage is obviously because they are suing upon it.
If as stated above "The mortgage being forclosed" was the
consolidated mortgage, then satisfactions should have been filed for
the 1995 Mortgage and the $380,346.31 Gap mortgage. As it now
stands, Plaintiff claims that Defendants owe some $1,214,000 in
outstanding mortgages to them, for property they had appraised for
$868,000.00.
Plaintiff-Respondent clearly filed this action based
upon the 1995 paid in full mortgage, and all the documents
and affidavits from Plaintiff clearly support it.
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