Fourth. The Defendants Have no Right of Subrogation as a Stranger to the Transaction, a mere volunteer and as a Party who has not Tendered the Full Amount of the Mortgage Debt. The right of Subrogation does not exist for the Defendants or their assigns, agents, or principals. The assignment of the note and deed of trust for our property is unlawful since the assignee was a stranger to the transaction and has not provided evidence that they paid off the entire mortgage in full. M & T BANK has failed to provide any evidence in this matter of payment of the entire Mortgage debt in full, therefore under the doctrine of latches, the presumption that the Defendant, M & T BANK, did not pay the entire mortgage debt in full is unrebutted and is therefore a fact undisputed and agreed to by the Defendants, see, 73 Am Jur Second, Section 90 which states that a right of subrogation does not exist for a mere volunteer, or some one who has not paid the entire mortgage debt in full. Please review the following for affirmation that the right of subrogation does not exist for the Defendant in this matter; Henningsen v. United States Fidelity & G. Co.; 208 US 404; 52 L. Ed 547, 28 S. Ct. 389; Prairie State National Bank v. United States; 164 US 227; 41 L. Ed. 412; 17 S. Ct. 142; Aetna L. Ins. Co. v. Middleport; 124 US 534; 31 L. Ed. 537; 8 S. Ct. 625; McBride v. McBride; 148 Or 478 36 P 2d 175.
AS A RESULT, THE DEFENDANT, M & T BANK, HAS NO RIGHT, TITLE OR INTEREST IN THE PROPERTY, WHICH IS THE SUBJECT OF THIS ACTION TO QUIET TITLE, AS ONE WHO DOES NOT HAVE THE RIGHT OF SUBROGATION OF THE ORIGINAL NOTE THAT THEY ALLEGEDLY PURCHASED AND THAT WAS ALLEGEDLY ASSIGNED TO THEM. THEY HAVE NO STANDING TO FORECLOSE ON OUR PROPERTY.
Fifth. The Defendants cannot foreclose without a Judicial Determination of The Status of The Defendants as The Owner in a Court of Common Law and by Way of A Quiet Title Action.
The Defendants, by their actions are attempting to foreclose and force us out of the subject property without due process of law. Pursuant to the rules of the common law, the Defendants do not have the right to foreclose by way of a demand for insurance payments. This common law principal is reflected in California Civil Code 2924. The Defendants clearly violated this provision of California law when they started foreclosure proceedings by way of their demand for flood insurance payments. Pursuant to the Fifth Article of Amendment to our Federal Constitution, the Defendants cannot seek to obtain non-judicial remedies to obtain title, thereby claiming to have a ‘perfected title’, and thereby circumventing the due process requirements as guaranteed under the Fifth Amendment, by way of the Fourteenth Amendment. The quiet title action must be adjudicated prior to any foreclosure action taken or being tried in court, see California Civil Code Section 2924, which requires a court order to precede the sale of a property in foreclosure. Any unlawful action taken by the Defendant must be preceded by a final judgment in an action to quiet title, and therefore their planned foreclosure is violative of our due process rights. The US 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). The Defendant is proceeding as if rights were waived. We have never waived any rights in this matter, knowingly, intelligently or voluntarily, including our right to judicial due process, please see Brady v US; 397 US 742 at 748. In addition, the Northwest Ordinance of 1787, in Article Two, requires that no one can be deprived of liberty or property without due process of law. The Northwest Ordinance is still applicable today in California for the reasons stated previously.
The outcome of this quiet title case will determine the ownership of the property and the validity of the claims of the parties. The foreclosure action planned by the Defendant, M & T BANK lacks personal and subject matter jurisdiction because; 1.) of the misrepresentation of material facts by said Defendant that they have the right to foreclose 2.) the use of the all capitalized names as the straw man, 3.) the fact that the attempted seizure of the private property in question is not lawful because it violates the doctrine of due process established by California Common Law and by the US Supreme Court in Lynch v Household Finance, supra, by skipping and circumventing the requirement to file an Action to Quiet Title to determine with certainty who has title to the property and 5.) it violates our due process rights as Plaintiff in the Quiet Title Action. When a court proceeds in an action such as the unlawful detainer case for anything other than dismissal, under these circumstances, all of its judgments are void.
“The jurisdiction of the court depends on the correctness of the allegation.” US v Percheman (1833) 32 US 518 L.Ed. 604 at 617; “Where a court has jurisdiction it has a right to decide every question which occurs in the cause, and whether its decision be correct or otherwise, its judgment until reversed, is regarded as binding in every other court. But if it act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void. “. Wilcox v Jackson; 13 Peters 264 (1839); quoting Elliot et al v Piersol; 1 Peters 340.
Sixth. The Deed of Trust and Note are not valid because of Inherent Fraud in the Note and Deed of Trust.
The Defendants based their claim upon a mortgage contract (Note and Deed of Trust), which is in its very nature fraudulent. There is no valuable consideration in the existing mortgage contract, because there was nothing of intrinsic value loaned in the agreement. The mortgage company loaned Federal Reserve notes, which are commercial paper pursuant to a decision by the United States Supreme Court, see Clearfield Trust Company v US; 318 US 363. The mortgage contract violates Article One, Section Ten of the US Constitution and the Constitution for the united States of America. The mortgage contract violates The Coinage Act of 1792. In the united States of America, no state can make anything but gold and silver coin a tender in payment of debt, see Federal Const. Art. 1 Sec.10. Gold and silver coin has intrinsic value, and is exclusively lawful money in the united States of America. The Mortgage contract (note and deed of trust) did not provide for the loaning of gold and Silver coin, and did not provide for the repayment of the debt in gold and silver coin, as required under our Federal Constitution, Art. 1, Sec. 10, and is therefore not a lawful contract, because something other than gold and silver coin was made a tender in payment of debt. The mortgage contract, note and deed of trust is unconstitutional, see Woodruff v. Mississippi; 162 US 291;16 S. Ct. 820; 40 L. Ed. 973; Julliard v Greenman; 110 US 421, at 447, 4 S Ct. 122, 28 L. Ed. 204, See also Knox v Lee; 79 US (12 Wall 457, 20 L. Ed 287.
The collection of this alleged debt is unconstitutional, see Julliard v Greenman; 110 US 421, at 447, 4 S Ct. 122, 28 L. Ed. 204, See also Knox v Lee; 79 US (12 Wall 457), 20 L. Ed 287; Woodruff v. Mississippi, 162 US 291, which states; “ For the power to borrow money, simply meant the power to borrow whatever was money according to the Constitution of the United States and the laws passed in pursuance thereof, and the power to issue negotiable bonds therefore included the power to make them payable in such money. This the law presumed, and to proceed on an implication to the contrary was to deny to the holders of these bonds, subsequent to their purchase, a right arising under the Constitution and laws of the United States.” In two of the above cases, the US Supreme Court stated that the use of paper money was acceptable under the above-cited sections of the US Constitution, because the currency at the time of these rulings was backed by silver and gold coins. Woodruff v. Mississippi, and Article One, Section Ten of the US Constitution must be held as controlling in this matter as the supreme law of the land, since the court is required to be faithful to the law and cannot engage in judicial nullification.
Seventh. The Defendants Cannot Validate the Debt, Therefore the obligation is extinguished, and any claim, by them, to the land is void. The Defendants agent and debt collectors failed to validate and verify the debt in accordance with the Fair Debt Collection Practices Act Title 15 USC, § 1692 and numerous sections of the Uniform Commercial Code, all of which are a reflection of the rules of the common law. In my constructive notice I offered to pay the Defendant, M & T if they would validate the debt and demonstrate that they have the right of subrogation. They have failed to respond to our constructive notice and are, therefore in default on our offer. As a result of the foregoing the obligation is extinquished, see Walker v. Houston; 215 Cal 742; 12 P2d 953 at 953, 87 A.L.R. 937.
Eighth. The Defendants in this matter have not responded to my request to validate the debt as required in the Offer of Performance, therefore the obligation is extinguished, See Exhibit C. Please note the Defendants claim that they have the right to foreclose, however, the right of subrogation does not exist for the Defendant, M & T BANK, as a stranger to the transaction, pursuant to the case law below; see 73 Am Jur Second, Section 90 which states that a right of subrogation does not exist for a mere volunteer, or some one who has not paid the entire mortgage debt in full. Please review the following for affirmation that the right of subrogation does not exist; Henningsen v. United States Fidelity & G. Co; Supra; Prairie State National Bank v. United States; Supra ; Aetna L. Ins. Co. v. v. Middleport; Supra; McBride v. McBride; Supra. AS A RESULT OF THE FOREGOING US SUPREME COURT RULINGS, THE DEFENDANTS DO NOT HAVE THE AUTHORITY TO FORECLOSE BECAUSE THEY DO NOT HAVE THE RIGHT OF SUBROGATION. THEREFORE, THEY CANNOT VALIDATE THE DEBT BECAUSE THEY ARE NOT THE ORIGINAL LENDER AND CANNOT ENFORCE THE NOTE THAT THEY CLAIM TO HAVE PURCHASED FROM THE ORIGINAL LENDER.
In addition, the Defendants never proved that the full amount of the mortgage was paid further amplifying the fact that a right of subrogation does not exist. In most cases the mortgage companies and banks sell the notes to each other for pennies on the dollar, meaning that they do not pay the entire mortgage debt in full, thereby providing another reason why they do not have the right of subrogation.
Ninth. We have a Common law Lien against the property which must be satisfied before any equity liens are satisfied, See Exhibit D. Common law liens in law supersede mortgages and equity liens, Drummond Carriage Co.v. Mills; 74 NW 966 (1898); Hewitt v. William; 47 La. Ann. 742; 17 So. 269; Carr v. Dail; 19 SE 235; MacMahon v. Lundin; 58 NW, 827; and may be satisfied only when a Court of Common Law pursuant to order of the elected Sheriff under of Article Seven of the Bill of Rights.
Tenth. 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 Offer of Performance is the necessary instrument to cause the discharge of the alleged debt in this matter. Please note under the tender laws, if the payment is made and refused, the debt is discharged, please see UCC 3 - 603 and UCC 2-511. Also under The Truth in Lending Act, Title 15, Section 1601, Under Regulation Z the Defendant has to object to the tender of payment within three days or be barred from objecting later. See Nygaard v. Continental Resources, Inc; 598 N.W. 2d 851, 39 UCC 2d 851. As the Plaintiffs we have no other recourse or remedy. We offered to pay the entire debt in full if the Defendant, M & T BANK, would validate the debt, SEE EXHIBIT C, and prove that they have a right of subrogation. The Defendant, M & T BANK, did not accept our offer. The Defendant thereby violated our right to due process of law, by failing to either accept our conditional offer to pay the debt by validating the debt and proving that they have the right of subrogation or disclaiming any right, title or interest in the property.
"A tender is an offer of performance, made with the intent to extinguish the obligation (Civil Code Section 1485) When properly made, has the effect of putting the other party in default if he refuses to accept it ," Wiesenberg v. Hirshorn, 97 Cal App. 532, 275, P 997; Lovetro V. Steers 234 Cal App. 2d 461, 44 Cal. Rptr. 604; Holland v. Paddock, 142 Cal App. 2d 534, 298 P 2d 587. “...The imposition of such conditions is waived by the offeree if he does not specifically point out the alleged defects in the tender. " Civil Code Sec. 1501; Code of Civil Procedure Sec. 2076; Hohener v. Gauss (1963) 221 Cal. App. 2d 797, 34 Cal. Rptr. 656. "The rationale of the requirement of specific objection is that the offeror should be permitted to remedy any defects in his tender; the oferee is therefore not allowed to remain silent at the time of the tender and later surprise the offeror with hidden objections, " Thomassen v. Carr, (1967) 250 Cal. App. 2d 341, 350, 58 Cal Rptr. 297; Riverside Fence Co. v. Novak, (1969) 78 Cal. Rptr. 536; See Walker v. Houston; 215 Cal 742; 12 P2d 953 at 953, 87 A.L.R. 937. The Defendant never accepted my offer to pay the debt by failing to comply with my condition precedent. They did this by failing to prove that they have the right of subrogation and failing to validate the debt.
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 conditional offer to pay is the necessary instrument to cause the discharge of the Defendant’s Demand for Payment in this matter. Please note under the tender laws, if the payment is made and refused, the debt is discharged, Please see UCC 3 - 603 and UCC 2-511. See Nygaard v. Continental Resources, Inc; 598 N.W. 2d 851, 39 UCC 2d 851. As the Plaintiffs we have no other recourse or remedy other than this action to quiet title.
The lender never produced a verified claim demonstrating that something of value or substance was loaned in the transaction. Therefore, the Defendants have no right to pursue this matter in court under Title 15 USC, Sections 1692 (g) and(e).
The Defendants never produced a verified claim demonstrating that something of value or substance was loaned in the transaction. Therefore, the Defendant has no right to demand payment. Also our good faith offer of performance was not accepted and therefore the obligation is extinguished.
Eleventh. The rule of decision in California courts is common law. Under the Seventh Amendment to the Constitution for the united States of America, I am entitled to a common law trial by the jury, 443 Cans of Frozen Egg Product v. United States of America 226 US 172, 50 at 52 Morris v United States 8 Wall. 507, 19 L. ed. 481 The Sarah 8 Wheat. 391, 5 L. Ed. 644 50 at 51 United States v. La Vengeance (reported in 3 Dall. 297, 1 L. Ed. 610) United States v The Sally (in 2 Cranch 406, 2 L. Ed 320 and United States v The Betsy (in 4 Cranch 443, 2 Led. 673). "An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed." -- Norton vs. Shelby County; 118, US 425 p. 442. See also, Miranda v. Arizona; 384 U.S. 436 (1966) “Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them” emphasis mine.
On dry land, any action must be adjudicated under common law pursuant to the Seventh Amendment. According to the US Supreme Court, in 443 Cans of Frozen Egg Product v. United States of America; Supra, the US Supreme Court stated as follows; “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.” The Northwest Ordinance of 1787 also requires a common law court pursuant to Article Two, since the State of California is bound by the compact under the equal footing doctrine as a state on an equal footing with the states such as Illinois or Wisconsin formed from the Northwest Territories, see Wilcox v Jackson; 13 Peters 264 (1839). It should be further noted that California was admitted into the union on an equal footing with such states as Illinois and Indiana, states, which were admitted under the Northwest Ordinance of 1787.
Twelfth. The Fair Debt Collection Practices Act must be adhered to in California, as in all other jurisdictions in the United States and the United States of America. If a debt cannot be validated by the creditor, it is unenforceable and the creditor must cease and desist all collection activities pursuant to Title 15, § 1692(g). A notice by the debtor that the debt is being disputed is all that is needed to compel the creditor to stop collecting the debt until debt validation has been completed. See Clarks Jeweler’s v. Humble, 823 P 2d 818, 16 Kan App 2d 366 (1991). Furthermore, all collection agencies and debt collectors include a clause in their collection notices, which is a notice to the debtor that the debt collector is attempting to collect a debt. This provides tacit acknowledgment that the debt collectors must comply with Title 15, § 1692 et seq. The debt collectors cannot identify anything of substance or value loaned in the transaction and therefore cannot validate the debt. Be advised that “verification” is defined (in Black’s Law Dictionary, Sixth Edition) as follows: “Confirmation of correctness, truth, or authenticity by affidavit, oath, or deposition. Affidavit of truth of matter stated and object of verification is to assure good faith in averments or statements of party.”
Thirteenth. The Defendant, M & T BANK, has no right to lend credit as this is a violation of their corporate charter and violates Federal law, and is prohibited under the doctrine of ultra vires.
The United States Supreme Court and the lower courts have long recognized that the banks cannot loan credit.
“In the federal courts, it is well established that a national bank has not
power to lend its credit to another by becoming surety, endorser, or guarantor for
him.” Farmers and Miners Bank v. Bluefield Nat 'l Bank, 11 F 2d 83, 271 U.S. 669.
"A national bank has no power to lend its credit to any person or corporation.”
. . . Bowen v. Needles Nat. Bank, 94 F 925 36 CCA 553, certiorari denied in 20 S.Ct 1024, 176 US 682, 44 LED 637.
“The doctrine of ultra vires is a most powerful weapon to keep private corporation within their legitimate spheres and to punish them for violations of their corporate charters, and it probably is not invoked too often .. .” Zinc Carbonate Co. v. First National Bank, 103 Wis 125, 79 NW 229. American Express Co. v. Citizens State Bank, 194 NW 430.
“A bank may not lend its credit to another even though such a transaction turns
out to have been of benefit to the bank, and in support of this a list of cases
might be cited, which-would look like a catalog of ships.” [Emphasis added] Norton Grocery Co. v. Peoples Nat. Bank, 144 SE 505. 151 Va 195.
"It has been settled beyond controversy that a national bank, under federal
Law being limited in its powers and capacity, cannot lend its credit by guaranteeing
the debts of another. All such contracts entered into by its officers are ultra
vires . . ." Howard & Foster Co. v. Citizens Nat'l Bank of Union, 133 SC
202, 130 SE 759(1926).
"Neither, as included in its powers not incidental to them, is it a part of
a bank's business to lend its credit. If a bank could lend its credit as well as
its money, it might, if it received compensation and was careful to put its name
only to solid paper, make a great deal more than any lawful interest on its money
would amount to. If not careful, the power would be the mother of panics, . . .
Indeed, lending credit is the exact opposite of lending money, which is the real
business of a bank, for while the latter creates a liability in favor of the bank,
the former gives rise to a liability of the bank to another. I Morse. Banks and
Banking 5th Ed. Sec 65; Magee, Banks and Banking, 3rd Ed. Sec 248." American
Express Co. v. Citizens State Bank, 194 NW 429.
"It is not within those statutory powers for a national bank, even though solvent,
to lend its credit to another in any of the various ways in which that might be
done." Federal Intermediate Credit Bank v. L 'Herrison, 33 F 2d 841, 842 (1929).
"There is no doubt but what the law is that a national bank cannot lend its credit or become an accommodation endorser." National Bank of Commerce v. Atkinson, 55 E 471.
"A bank can lend its money, but not its credit." First Nat'l Bank of Tallapoosa
v. Monroe. 135 Ga 614, 69 SE 1124, 32 LRA (NS) 550.
".. . the bank is allowed to hold money upon personal security; but it must
be money that it loans, not its credit." Seligman v. Charlottesville Nat. Bank,
3 Hughes 647, Fed Case No.12, 642, 1039.
"A loan may be defined as the delivery by one party to, and the receipt by
another party of, a sum of money upon an agreement, express or implied, to repay
the sum with or without interest." Parsons v. Fox; 179 Ga 605, 176 SE 644. Also
see Kirkland v. Bailey, 155 SE 2d 701 and United States v. Neifert White Co., 247
Fed Supp 878, 879.
Fourteenth. A party alleging to be creditor must prove standing.
The Defendants have failed or refused to produce the actual note, which the Defendants allege that we owe. Where the foreclosing party cannot prove the existence of the note, then there is no note. To recover on a promissory note, the Defendant must prove: (1) the existence of the note in question; (2) that the party sued signed the note; (3) that the Defendant is the owner or holder of the note; and (4) that a certain balance is due and owing on the note. See In Re: SMS Financial LLC. v. Abco Homes, Inc. . No.98-50117 February 18, 1999 (5th Circuit Court of Appeals.) Volume 29 of the New Jersey Practice Series, Chapter 10 Section 123, page 566, emphatically states, “ ...; and no part payments should be made on the bond or note unless the person to whom payment is made is able to produce the bond or note and the part payments are endorsed thereon. It would seem that the mortgagor would normally have a Common law right to demand production or surrender of the bond or note and mortgage, as the case may be. See Restatement, Contracts S 170(3), (4) (1932); C.J.S. Mortgages S 469 in Carnegie Bank v Shalleck ; 256 N.J. Super 23 (App. Div 1992), the Appellate Division held, “When the underlying mortgage is evidenced by an instrument meeting the criteria for negotiability set forth in N.J.S. 12A:3-104, the holder of the instrument shall be afforded all the rights and protections provided a holder in due course pursuant to N.J.S. 12A:3-302" Since no one is able to produce the “instrument” there is no competent evidence before the Court that any party is the holder of the alleged note or the true holder in due course. New Jersey common law dictates that the plaintiff prove the existence of the alleged note in question, prove that the party sued signed the alleged note, prove that the plaintiff is the owner and holder of the alleged note, and prove that certain balance is due and owing on any alleged note. Federal Circuit Courts have ruled that the only way to prove the perfection of any security is by actual possession of the security. See Matter of Staff Mortg. & Inv. Corp., 550 F.2d 1228 (9th Cir 1977), “Under the Uniform Commercial Code, the only notice sufficient to inform all interested parties that a security interest in instruments has been perfected is actual possession by the secured party, his agent or bailee.” Bankruptcy Courts have followed the Uniform Commercial Code. In Re Investors & Lenders, Ltd. 165 B.R. 389 (Bkrtcy.D.N.J.1994), “Under the New Jersey Uniform Commercial Code (NJUCC), promissory note is “instrument,” security interest in which must be perfected by possession .