Second; The assign, M & T BANK alleged purchased the note and deed of trust for the land and buildings which is the subject of this dispute from the original lender, BAYVIEW LOAN SERVICING, LLC and attempted to collect payment on the note without the right of subrogation. The assign, M & T BANK, made a demand for payment and then moved for foreclosure on the note even though they do not have the right of subrogation as a party who is not a cosigner to the note and the action by the original lender selling the land and home to a stranger to the transaction is not agreed to by me and is therefore an unlawful act, and a breach of trust, see Aetna L. Ins, Co. v. Middleport, 124 US 534.
I sent the lender a written request to validate the debt, see Exhibit C. They did not respond to my request. The lender is currently in default on my request that they provide a validation of the debt and prove that they have the right of subrogation. This failure to answer is an admission of the truth and validity of the contents of the constructive notice under the doctrine of laches, res adjudicata, nil deceit, silence by acquiesence and tacit procuration.
The Uniform Commercial Code also reflects these principals of common law that once a debtor makes a good faith offer of performance and it is not accepted, the obligation is extinguished, pursuant to UCC 3-603. The defendants cannot produce a verified claim for which relief can be granted.
They steadfastly refused to respond to our constructive notice, See Exhibit C.
Third; The mortgage note and deed of trust cannot form the basis of any kind of lien or security against our private allodial property because we are the assignee to the original land patent which was applied for and obtained by our predecessor -in -interest, who filed the original petition for the land patent and received the original land patent, without the defendants in this matter ever having filed a claim against the original land patent. Furthermore, the US Supreme Court has ruled that when land which has been patented by a land owner, or a predecessor -in -interest, the state, or any other entity, person, natural or artificial or party such as a bank or corporation, is barred from making any claim against the land, once a two year window expires for challenging the original land patent or making a claim, such as that of a public trust easement. Adverse claims cannot attach to patented land pursuant to the acts of the Federal Government authorizing said patents.
The private property in question, which is defined in Exhibit A, is also a parcel of land that was once a part of a much larger tract of land patented by our predecessor -in -interest in a land patent procedure. Thus, the issuance of a Federal Land Patent barred any future claims against the land. Please see Summa Corp. v California Ex Rel; 104 US 1751 (1984), which states; “We hold that California cannot at this late date, assert it’s public trust easement over petitioner’s property, when petitioner’s predecessors -in -interest had their interest confirmed without any mention of such an easement in proceedings taken pursuant to the act of 1851.” Claims by government agencies or states or counties are no different than claims by private corporations and banks, such as the defendants are. Neither the defendants nor the original mortgage company filed any sort of competing claim in the patent proceeding for this land. Therefore, under the above cited US Supreme Court ruling and many others, neither the defendants nor the original mortgage holder has any legitimate or lawful claim to the land. We, the Plaintiff in this matter, have allodial title, which is the highest title anyone can have on their land. No one has superior title. As the Plaintiff, we, Gail-Joy-Bennett: Wofford, Dana E. Wofford and Mark-Evan: Bennett seek to quiet title against all claims by defendants to any security interest, lien, right, title or interest, in our property. The Defendants adverse fraudulent claims are without any rights whatsoever, without any foundation in law, and cannot in any way extinguish our lawful common law exclusive claim to our own private allodial property.
Fourth; We believe that the organic laws of the united States of America, including all founding documents and charters give us sovereignty and thereby a right to private citizenship allodial titles to land and access to common law courts, which are derived from the people of the body politic, which created the government and all the rights and freedoms which are associated with the organic laws created by the body politic. I cite the following case below:
The US Supreme Court has affirmed the notion that each Citizen is sovereign and that state governments are bound by the Federal Constitution; “ From the crown of Great Britain the sovereignty of their country passed to the people of it, and it was then not an uncommon opinion that the un-appropriated lands, which belonged to that crown, passed not to the people of the colony or states within those limits they were situated, but to the whole people..... ‘We the people of the United States do ordain and establish this constitution.’ Here we see the people acting as sovereigns of the whole country; and in the language of sovereignty, establishing a constitution by which it was their will, that the State governments, should be bound, and to which the State constitutions should be made to conform.
It will be sufficient to observe briefly, that the sovereignties in Europe, and particularly in England exist on feudal principals. That system considers the prince as the sovereign, and the people as his subjects; it regards his person as the object of allegiance, and excludes the idea of his being on an equal footing with a subject either in a court of justice or elsewhere.
That system contemplates him as being the fountain of honor and authority; and from his grace and grant, derives all franchises, immunities and privileges; it is easy to perceive, that such a sovereign could not be amenable to a court of justice, or subjected to judicial control and actual constraint.
The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the prince and the subject. No such ideas obtain here; at the revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, and they are sovereigns without subjects...and have none to govern but themselves; the citizens of America are equal as fellow-citizens, and as joint tenants in the sovereignty.
From the differences existing between feudal sovereignties and governments founded on compacts, it necessarily follows, that their respective prerogatives must differ. Sovereignty is the right to govern; the nation or state sovereign is the person or persons in whom that resides. In Europe, the sovereignty is generally ascribed to the prince; here it rests with the people; there the sovereign actually administers the government, here never in a single instance; our governors are the agents of the people, and at most stand in the same relation to their sovereign, in which the regents of Europe stand to their sovereign.
Their princes have personal powers, dignities and preeminence, our rulers have none but official; nor do they partake in the sovereignty otherwise, or in any other capacity, than as private citizens.” Chisolm v. Georgia; 2 Dall (U.S.) 419 (1793) (emphasis mine).
FIRST CAUSE OF ACTION
First. The defendants do not have a security interest in our property because of the lack of the right of subrogation. They claim that their purchase of the note from the original lender forms the foundation of their authority to take our land by a foreclosure action. There is no right of subrogation for the Defendant, M & T BANK. Additionally, there is no valuable consideration, since only Federal Reserve Notes were received, which are not backed by any hard asset of the bank or anything which has any redemption value. None of the Plaintiffs remember ever signing over a security interest, based upon valuable consideration to the defendants or anyone else. The defendant, M & T BANK, purchased the promissory note from BAYVIEW LOAN SERVICING, LLC, who purchased the note from the original lender, Anthony W. Trevellick, for an undisclosed amount, even though they were not a cosigner on the original note, meaning they did not have the right of subrogation. As a result of their not having the right of subrogation, the Defendant, M & T BANK, is a stranger to the transaction and has no right, title or interest to our land and buildings ANY FORECLOSURE ACTION BY THEM is unenforceable and void ab intio, from the beginning. The Defendant, M & T BANK, had a duty, as an alleged creditor to prove that they have a right of subrogation if they are a co-signer, and prove that they are a co-signer, if in fact they are, and additionally, prove that they have paid the entire debt in full, prior to taking steps to foreclose on our property, the land and buildings, which is the subject of this civil action. The Defendant, M & T BANK, did not do this, and by their failure to prove that they are a co-signer on the original note and that their failure to prove that they have paid the entire mortgage debt in full, they have failed to perform a duty, which they are required to perform under California law.
“Subrogation in equity is confined to the relation of principal and surety and guarantors, to cases where a person to protect his own junior lien is compelled to remove one which is superior, and to cases of insurance....Anyone who is under no legal obligation or liability to pay the debt is a stranger, and, if he pays the debt, a mere volunteer.”. (emphasis mine) Aetna Life v. Middleport, 124 US 534, quoting Suppiger v. Garrels, 20 Bradwell App Ill. 625. The defendant, M & T BANK, were clearly never cosigners or sureties in the original Promissory note. The Lake County Sheriff has an auxiliary role to play in this matter, assisting M & T BANK in their unlawful activities.
The Defendants violated our right to due process of law, as guaranteed under the Fifth and Fourteenth Amendments to the US Constitution by presenting themselves as a party who has a right to enforce the original contract, although they clearly are not now, nor have they ever been a co-signer to the original note. Because they have no right of subrogation, they have no right to enforce the note, and thereby no right to foreclose or to claim any right, title or interest in the property. We have a right to expect that anyone who is attempting to foreclose on the property has the right to do so as someone who has standing. The Defendant clearly has never had standing to foreclose, based upon the above case law and facts. Please note that the Defendant, M & T BANK, has never claimed that they have the right of subrogation. They have never brought forward evidence that refutes, rebuts, challenges or denies our statement of fact that the Defendant, M & T BANK, does not have the right of subrogation and is not a co-signer. California Courts are bound by the US Constitution and laws passed in pursuance thereof. This requirement is found in the California Constitution of 1849 under Article Seven, Section Twelve, which states, in relevant part:
“Sec. 12. The Senators and Representatives to the Congress of the United
State, elected by the Legislature and People of California, as herein
directed, shall be furnished with certified copies of this Constitution,
when ratified, which they shall lay before the Congress of the United
States, requesting, in the name of the People of California, the admission
of the State of California into the American Union.”
As a result it was clearly the intention of the delegates to the constitutional convention held in 1849 in California to become one of the several states of the Union of states known as the united States of America and to be bound by the decisions of the US Supreme Court.
When there is fraud involved, then any action that flows from that fraud is null and void and without force or effect in law, Ex Dolo Malo Non Oritur Actio, out of fraud no action arises. Additionally, If this is true the Defendants are liable for fraud, fraudulent conversion and attempted theft of private land. This claim of ownership of our buildings and land without a judicial trial by the jury, and without due process of law, access to an appeals process, a final judgment by a court, represents a taking of property without due process of the law in violation of the Fifth Amendment to our Federal constitution and similar provisions in the Northwest Ordinance of 1787.
The Fifth Amendment to our Federal Constitution of 1787, The Northwest Ordinance of 1787, Article Two and similar provisions of the California Constitution, guarantees that no person shall be deprived of life, liberty or property without due process of law. We, Gail-Joy-Bennett: Wofford, Dana E. Wofford and Mark-Evan: Bennett, The Plaintiffs, do not recall ever having been given a summons or subpoena or other lawful notice requiring our presence in court in a Quiet Title Action. We do not recall ever having been to court over this matter in a Quiet Title Action pursuant to California law. We do not recall a trial by the jury, final judgment, access to the appeals process or having seen a court order regarding a determination of Title in an action to Quiet Title. The Seventh Amendment to our federal constitution and Article Two of the Northwest Ordinance of 1787 guarantees common law. The defendants actions are not the result of a common law ruling and due process in a court of law, “The 7th Amendment to the Constitution preserves the right of trial by jury in suits at common law involving more than $20, and provides that no fact tried by a jury, shall be reviewed otherwise than according to the rules of the common law.”, see 443 Cans of Frozen Egg Product v. United States of America; 226 US 172. The defendants have failed to prove or show a court order authorizing private property to be liened, levied or seized based upon a determination of title in an Action to Quiet Title as required under the rules of the common law, and the Fifth and Fourteenth Amendments. The Defendants are attempting to use the organs and institutions of government to obtain title to the property and hold a foreclosure sale without due process of law, and without a trial by the jury under the rules of the common law. The common law right of due process is found in the Fifth, Seventh and Fourteenth Amendments to our federal constitution. Please see California Civil Code Section 2924, which requires the creditor to foreclose and hold a sale of the property only after there is a judgment in a court of law. The actions taken by the defendants, attempt to deprive us of our liberty and property without due process of law. Article Three of the original constitution for the united States of America calls for either law or equity courts, depending on the circumstances, see Callan v. Wilson, 127 U.S. 540, (1888) "And as the guaranty of a trial by jury, in the third article, implied a trial in that mode, and according to the settled rules of common law”. Actions by them to claim to have a security interest in our private land and buildings and personal property and claim authority to hold a foreclosure sale is an action beyond the scope of their authority. This is described by the United States Supreme Court as tyranny in; United States v. Lee; 106 US 196, 1S. Ct. 240 (1882) where the United States claimed ownership of property via a tax sale some years earlier, the court stated as follows:
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest are creatures of the law and are bound to obey it. It is the only supreme power of our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives...... Shall it be said ... that the courts cannot give remedy when the citizen has been deprived of his liberty by force, his estate seized and converted to the use of the government without any lawful authority, without any process of law, and without any compensation, because the president has ordered it and his officers are in possession? If such be the law of this country, it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.” In the above-cited case the government can be considered as similar and applying in like manner as the defendants in the above captioned case. If government agencies cannot take private property without due process of law, how can a bank or mortgage company do so?
The Supreme Court also reaffirmed the right to enjoy private property and not be deprived of it without due process of law in Lynch v. Household Finance Corp.; 405 US 538 (1972);
“Such difficulties indicate that the dichotomy between personal liberties and property rights is a false one. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a “personal” right whether the “property” in question be a welfare check, a home, or a savings account. In fact a fundamental interdependence exists between the personal right to liberty and the personal
right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized. J. Locke Of Civil Government 82- 85(1924); J. Adams A Defense of the Constitutions of Government of the United States of America, in F. Coker Democracy, Liberty and Property 121-132 (1942); 1 W. Blackstone, Commentaries 138-140.”
The taking of private property without due process is clearly a violation of civil liberties as well as personal rights. One of the settled principles of our Constitution is that these Amendments are to protect only against invasion of civil liberties by the government whose conduct they alone limit. Burdeau v. McDowell ; 256 US 465, 41 S. Ct. 574, 65 L Ed. 104813 ALR 1159 (1921); Weeks v. United States; 232 US 383, 34 S. Ct. 341, 58 L. Ed. 652, (1914);Hall v. United States; 41, F 2d 54(9th Cir. 1930); Brown v. United States; 12 F 2d. 926 (9th Cir. 1926). Therefore the organs of government cannot be used to participate and assist in the unlawful plunder of our private allodial property.
Second. In the United States of America, after of the Revolutionary War of 1775, feudal titles came to an end and were replaced by allodial titles. This structural change in the nature of titles, which came with self government, is aptly described by the Pennsylvania Supreme Court in Wallace v Harmstad 44 Pa. 492; 1863 (1863) which states the following;
“I see no way of solving this question except by determining whether our Pennsylvania titles are allodial or feudal. It seems strange that so fundamental a question as this should be in doubt at this day.....
“He defines a feud as a tract of land held by a voluntary and gratuitous donation, on condition of fidelity and certain services, and allodial lands as those whereof the owner had the dominium directum et verum the complete and absolute property, free from all services from any particular lord...........
“... the Revolution would have operated very inefficiently towards complete emancipation
if the feudal relation had been suffered to remain. It was therefore necessary to extinguish all foreign interest in the soil, as well as foreign jurisdiction in the manner of government.
“we are then to regard the Revolution and these Acts of the Assembly as emancipating every acre of the soil (of Pennsylvania) from the grand characteristic of the feudal system.”
From this and our understanding of the Equal Footing Doctrine, as described earlier from the Northwest Ordinance of 1787, we conclude that titles in all of the several states of the united States of America are purely allodial. Our allodial title means that we are not vassals, serfs or indentured servants. The defendant, M & T BANK, does not have a lawful claim to our buildings and land. The defendant, M & T BANK, does not have a higher title than we do, or any right, title or interest in our property except perhaps by fraud which is void ab initio, since fraud vitiates everything.
Third. Patented Land cannot be collaterally attacked. The private property in question, which is defined in Exhibit A, is also a parcel of land that was once a part of a much larger tract of land patented by our predecessor -in -interest in a land patent procedure. Please see Summa Corp. v California Ex Rel; Supra (1984), which states; “We hold that California cannot at this late date, assert it’s public trust easement over petitioner’s property, when petitioner’s predecessors -in -interest had their interest confirmed without any mention of such an easement in proceedings taken pursuant to the act of 1851.” Claims by government agencies are no different than claims by private corporations and banks, such as the defendants are. Neither the defendants nor the original mortgage holder filed any sort of competing claim, or any other sort of claim in the patent proceeding for this land. See also Gibson v. Chouteau; 13 Wall 92; 20 L. Ed. 534, which states “In an action of ejectment in state courts, when the question presented is whether the plaintiff or the defendant has the superior legal title from the United States, the Patent must prevail.” See also Field v. Seabury; 19 How 323; 15 L. Ed. 650; “A court of law in a state where strict common law prevail will not look behind or beyond the grant, to the rights upon which it is founded, nor examine the progressive stages of the title antecendent to the grant.” Ross v.Doe; ex dem. Barland 1 Pet 655; 7 L. Ed 302. “ A patent for lands is conclusive in an action at law as to the legal title, and cannot be collaterally impeached unless absolutely void on its face, or issued without authority.” St Louis Smelting and Refining Co. v. Kemp; 104 US 636; 26 L. Ed 875. “Only one having a prior right can attack a patent collaterally.” Doolan v. Carr; 125 US 618; 8 S. Ct. 1228. “A patent is the highest evidence of title and is conclusive against the government and all claiming under junior patents and titles.” United States v. Maxwell Land Grant Co.; 121 US 325; 7 S. Ct. 1015. Stone v. US; 2 Wall 525; 17 L. Ed 765.
Therefore, pursuant to these US Supreme Court rulings neither the defendants nor the original mortgage holder have any claim to or right, title or interest in our private land and home. We, Gail-Joy-Bennett: Wofford, Dana E. Wofford and Mark-Evan: Bennett, the Plaintiffs in this matter have allodial title, which is the highest title anyone can have on their land. No one has superior title. As the Plaintiffs, we, Gail-Joy-Bennett: Wofford, Dana E. Wofford and Mark-Evan: Bennett, seek to quiet title against all claims by the defendants to any security interest, lien, right, title or interest, or power to take control of our property. The Defendant, M & T BANK’s adverse fraudulent claims is without any rights whatsoever, without any foundation in law, and cannot in any way extinguish our lawful common law exclusive claim to our own private allodial real property. We, Gail-Joy-Bennett: Wofford, Dana E. Wofford and Mark-Evan: Bennett, the Plaintiffs in this matter, seek to quiet title as of the date of the constructive notice mailed to the Defendant.