Words from the Rising Republics

August 26, 2019

 

RE: Title “Cloud” Removal

Property legally described as follows:

         House and lot on East Broad Street in the City of Ozark, Alabama, known as the JD. Holman Residence property, and being more particularly described as follows: Bounded on the south by East Broad Street, on the east by house and lot known as the L.W. Kolb property recently purchased by Dr. William E. Chesser and wife, on the north by property formerly known as the Charlie Stokes lot and now assessed to Mike Sollie, Sr., estate, and on the West by a narrow street or alleyway called Rye Street and currently called Mutual Street The property conveyed herein comprises in the aggregate two and one-half acres, more or less, and it is the intent to convey all the property acquired by the said JD. Holman for his said home site, including the parcel in the northwest corner of the total tract acquired from Saphronia Smith, the one-half acre, more or less, in the southwest corner of the total tract acquired from S.B. Brown and wife, in 1912 and the one and one-half acres comprising the east portion of the total tract acquired from CA. Stokes in 1907, together with any other parcels acquired by W. Holman and used by him in connection with the said home-place conveyed herein. Dale County, Alabama.

Said property is commonly referred to as 285 East Broad Street, Ozark, AL 36360 (the Property).

Gentlemen,

What belongs to us cannot be transferred to another without our consent. Dig. 50, 17, 11. But this must be understood with this qualification, that the government may take property for public use, paying the owner its value. The title to property may also be acquired, with the consent of the owner, by a judgment of a competent tribunal.

Purchaser without notice not obliged to discover to his own hurt. See 4 Bouv. Inst. n. 4336.

A covenant was made to defend generally the title to property at 285 East Broad Street, Ozark, Alabama. This is yet another attempt to fulfill that covenant. All attempts for judicial “cloud” removal have not succeeded. This attempt is to go outside the public arena because the SCOTUS has ruled that the transaction involving a Deed of Trust is private and is not a state action. CANCEL/RESCIND NOTICE Comes now Haywood Jackson Mizell as plaintiff to again amend his complaint by giving notice that he does hereby cancel/rescind the referenced loan in this case bearing the number 708-0128507779 and mortgage as filed MORT Book 392 Pages 346 thru Page 364 recorded in Above Book and Page 06/25/2003 11:29:26 AM Eunice Hagler Probate Judge Dale County, Alabama.

Wells Fargo consented by their silence to an operation of law that requires return of the instrument in a rescind/cancel exchange.

What is sought is a stamped PAID-IN-FULL authenticated instrument that must be surrendered after full payment as the agreement requires so that the title can be conveyed. Absent the instrument, no “power of sale” exists. What does not appear does not exist. It is against equity to deprive freeman of the free disposal of their own property. Co. Litt. 223. See 1 Bouv. Inst. n. 455, 460.

Many attempts, and years of discovery seeking why the incomplete disclosure of especially the identity of the true lender, were dedicated to the removal of the “cloud” so that a conveyance of title could be achieved especially after earnest money sealed the intent. A “cloud” imposed over the title by Wells Fargo by the policy of not “disbursing original documents” as the law demands and the purchaser required resulted in a 2008 agreed conveyance not materializing.

Per the earnest-money purchase provider, The City of Ozark possess the property, but without title. I am charged with removing the cloud so that conveyance can be freely executed and invested funds made secure. Hopefully, the conveyance profits the transferring entity by more than double the funds submitted from the wrongful auction held in the presence of law enforcement officers that said presence made it a state action subject to due process rights.

Both federal and state courts actions proceeded with subject matter jurisdiction acquired by the instrument that was replaced by the judgment rendered by the involved court. The attorney for Wells Fargo states that the instrument is yet within his possession and the instrument is now an unsecured check made so by separation from the mortgage and ruled a check by Judge Quattlebaum thus declaring it the property of Wells Fargo and not subject to being surrendered.

I am a registered architect who is accustomed to asking the contractor’s bonding company to intervene when performance becomes an issue. Such demands made on a bonding company is made outside of state action and is private.

Bonding company investigations determine who is short in performance and steps in to assure the performance that leads to accepted completion.

My request is simple. Provide me the Bonding Company name, address and the corresponding number of the bond that assures your performance in the public arena. Once the Bonding Companies identifies the obstruction, then uncertainty will give way to project completion. You can appreciate that many others have been accused of being an obstacle other than the one questioned. The result is a “clouded” title. The bonding companies can certainly do a better job than I have done my dedicated thou unfulfilled performance of the borrower’s covenant.

“BORROWER COVENANTS that Borrower is lawfully seized of the estate hereby conveyed and has the right to mortgage, grant and convey the Property and that the Property is unencumbered, except for encumbrances of record.  Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record.”

 The Borrower’s duty is to see the title defended against all slander.

The elements of a slander of title action under Alabama law are: (1) ownership of the property by plaintiff; (2) falsity of the words published; (3) malice of defendant in publishing the statements; (4) publication to some person other than the owner; (5) the publication must be in disparagement of plaintiff's property or the title thereof; and (6) that special damages were the proximate result of such publication. Ala.Code 1975, § 6–5–211. Buckentin v. SunTrust Mortg. Corp., 928 F. Supp. 2d 1273 (N.D. Ala. 2013) (applying Alabama law).

 Auburn School of Architecture teaches the importance of balance.

                                                 BALANCE

               COMMERCE                                                               COMMERCE

             EQUAL VALUE                                                           EQUAL VALUE

BORROWER COUPLE                                                    LENDER

HOUSE PLANS                                                                 LOAN COMMITEMNT

ARCHITECT PLANS AND SUPERVISION                    CONSTRUCTION LOAN

LISCENSED CONTRACTOR                                            BONDS TO LIMIT COSTS

(BID-PAYMENT-PERFORMANCE)

 ARCHITECT APPROVED INSPECTION REPORTS     PROGRESS PAYMENTS

 CONSTRUCTION FOR                                                    PROMISSORY NOTE SIGNATURE

CERTIFICATE OF OCCUPANCY

 SECURED MORTGAGE LIABILITY                            SECURED MORTGAGE LOAN ASSET

 POWER OF SALE IN THE EVENT OF DEFAULT        REPLEVIN/JUDGE’S BOND IN THE

                                                                                               EVENT OF WRONGFUL FORECLOSURE

 PROMISSORY NOTE ASSET RETURN AFTER             SURRENDER OF LIABILITY SIGNATURE NOTE

STAMPED PAID-IN-FULL                                                 IF PAID-IN-FULL        

                                                                        NOTE:

Borrower defaults by lack of payment. Property foreclosure.

Lender defaults by unwillingness to surrender note if paid in full.

Ala. Code § 7-3-501(b)(2) “Surrender the instrument if full payment is made.”

See Ala. Code § 35-10-9 when agreement is made null and void.

 Should Lender sell the note, the assignment must be recorded in probate records. Then holder-in-due-course of record alone may foreclose in the purchaser’s name.

Should the promissory note be stolen § 7-3-305c “An obligor is not obliged to pay the instrument if the person seeking enforcement of the instrument does not have rights of a holder in due course and the obligor proves that the instrument is a lost or stolen instrument.” Instrument is the signed promissory note.

 SCOTUS has ruled the agreement private with no need for an attorney. Notice of rescind/cancel is a one paragraph statement, which becomes effective when mailed. The agreed rescind/cancel exchange is by OPERATION OF LAW as if signed by a judge after due process. Ala. Code § 7-3-305. Defenses and Claims in Recoupment and 15 U.S. Code § 1635(3).

 The problem is given birth by Wells Fargo’s refusal of full prepayment offered prior to foreclosure, but was conditioned on clear title conveyance that would enable a sale. Since Wells Fargo was not the lender and was servicer only, WF did not then and has not now surrendered an instrument that can be authenticated. The buyers will not purchase property without ownership.

Your Mortgage Banker Bond bonding company can help locate the instrument that will clear the title. Bonding company’s job is to resolve stalled project.

Please note that the sale price was more than double the auction created price. Yet, a sale by owner was not permitted. Funds on deposit at WF to prepay the entire debt was an amount more than double the debt. Prepayment was refused. When questioned, WF stated in writing that it was not required to surrender the instrument because the instrument had never been filed on public record.

We are not providing you with the original Note, because WFHM is not subject to USC Title 18, Part1, Chapter 101, Section 2071, as the Note was not deposited or filed with any judicial or public officer of the United States.

The WF written policy is to not “disburse original documents”.

Please be advised that WFHM does not disburse original documents. However, WFHM does have a valid loan and lien on this property.

Case law agrees that the instrument must be surrendered.

New Maine Nat. Bank v. Gendron, 780 F.Supp. 52 (D. Me. 1992). The court held that defendants were entitled to rescind loan under strict liability terms of TILA because plaintiff violated TILA's provisions. National Banks and/or subsidiary Mortgage companies cannot retain the note, "Among the assets of the state bank were two notes, secured by mortgage, which could not be transferred to the new bank as assets under the National Banking Laws. National Bank Act, Sect 28 & 56" National Bank of Commerce v. Atkinson, 8 Kan. App. 30, 54 P. 8 (1898).

The request is for the surrender of a paid-in-full negotiable instrument so that after authentication the commerce contract will be unimpaired. Again, please provide your bonding company information and the policy number for your account. Thank you!!!

CONCLUSION

 Legal Title has not been conveyed with consent. Title remains with Alice Faye Mizell and will remain until an instrument giving her consent to conveyance is produced for authentication. The foreclosure was wrongful and declared so in writing as a policy of Wells Fargo.

 

American Jurisprudence 2d 1966: (Volume 25, Ejectment § 19 Strength of own title)

"A well-established principle which has acquired the force of a maxim is to the effect that a plaintiff in ejectment can recover only on the strength of his own title, and not on the weakness of his adversary's. The defendant is not required to show title in himself, and he may lawfully say to the plaintiff, "Until you show title, you have no right to disturb me." Thus, even against one without title, plaintiff cannot recover in ejectment unless he proves title or prior possession in himself; and if he recovers by virtue of prior possession, he may be said to recover as much upon the strength of his own title as if he had shown a good title to the premises. On the   other hand, in order to prevail, plaintiff is not required to establish perfect title, all that is necessary being proof of a title superior to that of the defendant."

Taking of property in the presence of law enforcement becomes a state action. A Judge's order is after due process. A non-judicial process was wrongfully used and without an instrument of authority even after 6.5 years.

Again Ala. Code § 7-3-305c “An obligor is not obliged to pay the instrument if the person seeking enforcement of the instrument does not have rights of a holder in due course."

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