Words from the Rising Republics

August 13, 2019

 

IN THE CIRCUIT COURT OF

 

DALE COUNTY, ALABAMA

HAYWOOD JACKSON MIZELL           )

                                                    )

               PLAINTIFF,                      )

                                                    )

VS                                                 )       NO. CV – 13 – 6 The Holman House without

                                                     )                                City of Ozark Eminent Domain Title

WILLIAM G BARRY &                        )

WELLS FARGO BANK                        )

                                                      )

                 DEFENDANT.                   )

         The following is a transcript of the hearing in the above case which was held on November 4, 2014, and the Dale County Courthouse, Ozark, Alabama, with the Hon. Kenneth W Quattlebaum presiding.

A-P-P-E-A-R-A-N-C-E-S

FOR THE PLAINTIFF:

                                   HAYWOOD JACKSON MIZELL

                                   4518 WOODLEDGE DR.

                                    MONTGOMERY, AL 36109

FOR THE DEFENDANT:

                                     HON. D. KEITH ANDRESS

                                     BAKER DONALDSON

                                     WELLS FARGO TOWER

                                     420 20^TH ST. N., SUITE 1400

                                      BIRMINGHAM, AL 35203

I-N-D-E-X

CASE CAPTION …………………………………………………………………...….1

APPEARANCES …………………………………………………………………...…..2

INDEX………………………………………………………………………………….......3

ARGUMENT BY MR. MIZELL ……………………………………………………..4

ARGUMENT BY MR. ANDREWS………………………………………………….10

ARGUMENT BY MR. MIZELL………………………………………………………..12

REPORTER CERTIFICATE…………………………………………………………...14

P-R-O-C-E-E-D-I-N-G-S

     MR. MIZELL: Wells Fargo sent me a couple of letters that said they did not disburse original documents. So, I had been a chairman, a Vice-Chairman of the bank, and I knew that in licensing from a bank you had to deal only in originals.

    So, I took it upon myself to document what I said is true. Here is to bank checks, and you can see this one right here very clearly says “original documents.” It’s on every bank check, original document. This one is another bank. This is BB&T and it sort of curved, but it says, “original documents.” When you look down here at this line right here you think it is a signature line, but it’s not. It says, “authorized representatives.” You have to blow it up 60 times to see what it says. And over here on the right side up here, the name has to be in all caps. And being a corporation or an individual, that individual becomes an all capitals corporation. And the signer over here becomes his authorized representative. This is a corporation because corporations can only deal with corporations.

     Okay. So, I knew that they had to be an authorized representative. even to make a check viable and marketable they say.

     Well, when I asked the court, I thought in petitioning the court that I simply was going to file a misprision of felony with Judge Fillmore, because I didn’t know that he had actually taken McLaughlin’s place.

   So, I just filed it over there. And I knew in the petition I wanted the court to look and see whether he had authorization to speak for the Corporation. In which this case, if I’m going to sign this check down here, I’ve got to have a check card at the bank. I wanted them to check and see that he was an authorized representative of Wells Fargo. And the only way he can get that authorization is by corporate resolution. Nothing can be done without a corporate resolution, because he is the designated representative, because Wells Fargo is the legal entity. Wells Fargo is a dead corporation legal entity. It must have a representative, just like any dead corporation.

     Okay. So, I asked the court to look into that, and I thought that since Wells Fargo had a signed authorized representative and that representative was saying that Wells Fargo by policy didn’t disburse original documents, then I would be faced with lengthly trouble.

     So, I talked to Mr. Graham here, and he was kind enough to say, "We’ll go pay it off and you can quit dealing with them." He was getting, I think, like 1.75% interest, something like that. I was paying 7.2% and they wouldn’t---would not refinance the loan, wouldn’t sell it to anybody, would let us pay it off.

     So, we didn’t know what to do.

     So, they said if you don’t pay it all, and let Wells Fargo go to the courthouse and release the lien that is on the file in the courthouse, Wells Fargo will foreclose, wouldn’t have any choice.

     So, I looked into the law, and there's no question about it.

   In an injunction, when I asked for an injunctive relief by petition, it was basically saying to the court look at it and see if we can have a permanent injunction or is it something ---so, they took their temporary measure and tried to tell me that the non-judicial foreclosure was permanent, though contrary to the clear language of the law..

     Well, you can’t there’s no question you can foreclose, but could evict without possession of the debt note, which they had already sold and been paid. Wells Fargo wanted two payments for the same debt, plus insurance proceedings from a claim due to a foreclosure.

   In fact, you can go in without any kind of permission from anybody and just take over the property. There’s no question about that but you cannot evict without the document. You’ve got to have the document. The attorneys let Wells Fargo violate the law, from permission stated by their barred attorney even though the statement is not competent evidence.

     And so, they are trying to base everything thereon, including the motion for summary judgment and like that, based on that particular temporary procedure. Now, we are here today because they have filed a motion as well for summary judgment.

   THE COURT: That is not before the court today.

     MR. MIZELL: Not today?

     THE COURT: I’ll be setting that for hearing, and you will have an opportunity to respond. I think you’ve already filed something.

     MR. MIZELL: Yes.

     THE COURT: But you have additional time.

     MR. MIZELL: Thank you

     THE COURT: --to respond to that, yeah. So, we are not here on a hearing on that today.

     MR. MIZELL: I’m sorry I’m not a lawyer because I don’t know all the procedures, but thank you for helping me.

     THE COURT: Yes, sir.

     MR. MIZELL: Since they didn’t have, I believe, the right to foreclose because they don’t have the document in hand, and they confess they didn’t have it, so I assume that if they go ahead and foreclose, that is SEPARATING the mortgage from the note.

     So, on just by coincidence on January 14, I think, the Alabama Supreme Court was so fed up with this issue that they send it back to the Alabama Court of Appeals, because they’ll deal with the contract. If there is a contractual problem, no, but we ain’t going to listen to this because of the Cow and the tail. It is simply this, the Cow can live without the tail and the Cow is the note in the tail is a mortgage you cannot waive the tail without the Cow. And if the Cow and the tail are separated, THE CONTRACT IS NULL AND VOID.

     So, the one thing I couldn’t get them to do is to acknowledge that we have not defaulted because we were prepared to pay.

     And all they had to do was give us the note after payment in full when we give them the money and they wouldn’t do it. So, I made him (Mr. Graham) available in the federal courtroom, I made him (Mr. Graham) available here.

     If anybody got any question whether not, he had the money to pay the note, he’s got the deposit slip to show he had the money, and the deposit was in Wells Fargo’s bank. They didn’t have any question whether it was legitimate or not legitimate.

   They had said, we will not disburse. Wells Fargo belives it has a legal right to foreclose, because there’s a mortgage lien on file at the courthouse that was filed in 2003, and nobody would argument that, we actually wanted to pay off the note. What can you do? Where do you go to pay off the note?

     And the thing that concerned me more than anything else was that in 1982 Jesse Adams and Adams were in the divorce. Jesse was fixed to tear the building down with a salvage company out of Atlanta. And I said, let’s look at the important things. How much would it cost to get your wife back? He said, “$120,000,” after much figuring into it. He owed $75,000 to Farmers and Merchants Bank in Ariton.

   So, I told him I would pay him the hundred $120,000. He said, “Well, what about the house?” I said we’ll just lease it from you.

     We looked at that a little bit while, and it was just too much. The minimum we could do was $500,000. And then there was first cousin Gene Sellers who is an accountant and CPA and a tax lawyer, said that they just come up with a new thing called the 25% investment tax credit; that you go back on all the employees you had and get all those kind of credits. And he came up if I spent a dollar, I could get $0.25 task what if every dollar spent. I wound up spending enough to where they sent me $350,000. So, I spent $1.2 million or something on the house and that was by August.

     Okay. Well, ever since then I had a cousin he took the improvements, took the 25% credit, and I was going to do the same thing for Jimmy Graham because my cousin gave me a quick claim so, even though I was paying for everything, they were getting the tax credit. And a benefit tax credit was coming to me because I was using the house.

     Well, the problem is the Treasure is very persnickety. We could lease it from Jesse, but to use tax credit, the tax credit had to be property that I owned. You cannot use taxpayer to benefit somebody else. So right now, so to make a point, the city of Ozark cannot spend one penny of taxpayer’s money on that house because there is a cloudy title, and a quiet title must return the title back to me because of no eminent domain tribunal procedure to transfer title. It’s an absolute operation of law.

     So, I don’t want to cause anybody any trouble. I just want to do what I’m supposed to do, and that is to preserve the property and that’s all.

     And so, I’ve done everything I could. I’ve gone back and researched a look what J.D. Holman did, how Isom McGee got killed by lynching because the sons wanted Isom’s Louisiana property that J.D. Holman had made the purchase available for him. All right. So, where he had gone to the Supreme Court and had a ruling in 1935, he and the (unintelligible) reporter asked for clarification

MR. MIZELL: J.D. Holman and his wife, Sudie Holman and his brother Y. Allen Holman, suffice it to say, that there is a great history that nobody knew about, and I did know about it before  this court came about or in this case rather.

     So, all I’m saying is if Wells Fargo had the right to foreclose, let them do it after a temporary injunction has taken their right way. Let them come forward with the Rule 17 and prove that they are PARTY OF INTEREST because they are IN POSSESSION OF THE OBLIGATION.

     And the law clearly says that only the one who holds the obligation can foreclose. Well, Wells Fargo will tell you they hold the obligation. They’ll say that, but really what they say is not  in the Uniform Commercial Code and throughout all the other law is that has to do with the HOLDER IN DUE COURSE. In other words, you got to have the note by possession. It must be in your hand. In fact, in your hand when you start foreclosing proceedings.

     Here’s another thing. I begged them to let me come with Jimmy Graham and pay them the money and remove the "cloud" over the title, and they wouldn’t do it.

   And the law clearly says that before they could commence foreclosure, they must have a face-to-face meeting with you. And they absolutely refused.

     So, how can I do it? What can I do? Who is brave enough to enforce the law on Wells Fargo? A 20 year jail sentence does not slow their officials.  The FBI says they could not get a jury trial conviction against the deep pocketed Wells Fargo's stable of attorneys.

     So, I asked, why won’t you let me pay the note in total and then give me the original note, taking it out of circulation? Wells Fargo said that because the original note was never filed, (I think it’s some part of section 2071) says somebody that manipulates our etc. particular thing on file or remove it is subject to a three-year prison term plus so much fine. I’ve forgotten the fine. They said that since they didn’t file it, they didn’t have to give it to anybody.

     Well, I really don’t know what to do, really. If Mr. Graham’s money is no good, why is it in that Wells Fargo’s bank. And if Wells Fargo won’t let me pay, the note clearly says the debt is evidenced by the note.

     If they don’t have the note, there is no debt. Just that simple.

     The mortgage says you can prepay the note. You don’t have to wait for 30 years.

   So, I asked the Wells Fargo lady, I said, “Ma’am what if I continue to pay and we pay it all through the course of time, will I get the note when I completed the contract?”

     She said, “No. You will never see the note again.

   I said, “Ma’am you don’t understand, the Uniform Commercial Code clearly says that you must SURRENDER THE INSTRUMENT WHEN FULL PAYMENT IS MADE.”

     She said, “We are not subject to Uniform Commercial Code.” What can I do?

     I was not going to steal money from Wells Fargo. I didn’t steal any money from SouthTrust or AmSouth or Farmers and Merchants Bank.

     I have an obligation to pay that debt, and I made every effort I could. Wells Fargo installed obstacles to keep me from paying the debt.

     And number two, as sworn in that note, I swore to a BORROWERS COVENANT. A borrowers covenant, that’s like standing before God saying, “God I’m going to do this. I vow that I will do it.”

     And you know what that covenant says, DEFEND GENERALLY THE TITLE. And the title cannot be defended if there is no note, if Wells Fargo does not come forward with the note.

     And today, they filed 10 days ago for summary judgment, and they defile the law and said a piece of paper was the same as a note, when it is not so, that summary judgment has to be thrown out, that motion that they have to dismiss has to be thrown out because Wells Fargo is not presenting the debt note that they sld to FHMLC.

Now, one final thing and I will hush. A few years back I had a shady conversation with some people, very notable people who have lots of money and they wanted to develop Ozark.

     We talked about a gospel retreat near Perry between Enterprise and Opp. We were going to use that tax credit including taking care of the Holman House, plus going down to the train station and renovate some other house around.

     We needed a 5000-foot airport runway, which we just had. And the investors offered me at least $659,000 which was the appraised value for property tax purposes. After negotiation, I was given earnest money.

     We go back and talk some other place, later went out to Las Vegas, Alice Faye was with me, and we were shown example of the expected renovation standard to be used. We visited the hotel where Elvis Presley, Michael Jackson, and, at that time, Barry Manilow stayed. $60 million had been spent in renovating the top floor of the Hilton, which is the only casino in Las Vegas that had no debt and they had 5 acres. They had a lot of tax problems.

     So, it was decided we could develop the idea where, with something, and it would take a lot of people to you know provide the service that would transpire.

     People like to tour the South and whatever was needed to continue Ozark's growth would be dedicated.

     The problem was that the "gambling money" was in the distant state. And when my partner in another business told, what I called the Dixon Mafia, they said we can’t wait any longer.

     We’ve got to take control of the gaming operation in Alabama and were going to do it here. We going to build a thing called Country Crossing. First thing we got to do is, we got to take Jack’s stuff away from him. There won’t be anything to come to.

     So, they came and said we want to buy your radio station. I said, “It is not for sale.” The radio was without debt service.

     Robert Jerkin’s son looked at me and said, “Look, if you don’t sale it to them, they will steal it from you.”.

     I laughed and said, “They’re not going to do that.”

     They not only came and stole the radio; they stole the TV.

     A Gentleman was sent one afternoon to look at the Holman House. “He said, “The bank had told him that, the Citizen’s Bank, was fixing to take possession of the house.”

     I ran him off. So, I may have done bad. That was not hospitable.

     So, the long and short of it, is that they became an obstacle to the whole City of Ozark and to everyone in this area. I know some bad things may have happened with the other stuff and with them pushing gambling and all that kind of stuff. I’m not responsible for that. I don’t know. But, anyway, I did the best I could.

     I would have paid. And I think since they didn’t have the right to possess, they went ahead and took police officers and law enforcement people and put them there to make sure it wasn’t as appeared. It had “the color of law” to it but the law said you can’t do a private foreclosure when law enforcement is present. If you do that, then you deny a constitutional right of due process. The foreclosure was wrongful in many ways. Wells Fargo had improperly refused full payment.  There could never be a default.

     The case was transferred to the federal court. The federal court said that it was a question of property and sent the case back to the state, let the state apply the law. So, the federal court decided that I couldn’t have any kind of suit against the law enforcement people because I wouldn’t say who those present at the foreclosure were. I wasn’t there. The affidavit of one in attendance that confirmed law enforcement presence was not considered.

     So, now I came back to file subpoenas because Wells Fargo said, “We are going to do nothing without subpoenas.” And I had to file subpoenas and asked each one of them to tell me what they had done, and so far, as I know, they haven’t said anything. We wrestle not against flesh and blood.

     Even though the petition was filed before the foreclosure, Wells Fargo called the petition a complaint. I called it a petition. The court was asked to investigate. For months Wells Fargo, they started running from it like scattered does, you know. Wells Fargo avoided service of process.

     Wells Fargo’s response was always in writing and addressed to a location that does not exist, to 385 E. Broad Street, an address that does not exist. I don’t get it.

      Last time I came to hearing, I came down here just to be told by the court that the case had been continued. I went upstairs to the clerk’s office and found the order for continuation on the clerk’s desk. I had never seen the continuation request.

     THE COURT: Well, thank you for your argument you might want to go by the clerk’s office and change your address record if you’re not getting mail from the court.

     MR. MIZELL: My address of record is absolutely perfect.

    THE COURT: Yeah, but things whatever is filed in the court of whatever orders I issue are sent out by the clerk to your address of record that they have.

     MR. MIZELL: I don’t know why they don’t use it. The clerk has it because I do get some stuff from the clerk. In all honestly, I just don’t get it from Wells Fargo’s attorney.

     THE COURT: Court: Okay, all right, Mr. Andrews.

     MR. ANDRESS: Your Honor, I still don’t really understand what the allegation are in this case I want to give the court some background as to what happened on June 9, 2003 Mr. Mizell entered into a note with Wells Fargo Mr. Mizell was not a party to the note, but he was on the mortgage only as, I guess they were married at the time. And under Alabama law he had to sign the mortgage in order for it to be enforceable, which he did. The note was not paid back, it was in default. And according to allegations, Mr. Mizell was going to have a third party take the assignment of the note, but he wanted to see the original note that Wells Fargo was said to possess note before he could pay it off the debt. That’s what they allege.

   And that, they can allege that, but the note doesn’t allow for giving the note, an unpaid note, an original document to another person to have pay it off. If Mr. James Graham wanted to pay off the note or take an assignment of the note, he was a third party to this transaction, he could have asked Wells Fargo, maybe they would have done it, maybe they wouldn’t have. They had no obligation to do any of this what he alleges.

     The only obligation was for Mr. Mizell to pay back the note, which he/she didn’t do. And there’s no allegation here that the note was current at the time of the foreclosure. It was not.

     But what they’re saying is allegations that somebody would have paid off the note if they would have gotten to see the original note before they paid it off and then they would have paid it off. Well, it doesn’t work that way and even if that happened, and for this, is our opposition to this motion to dismiss standard, so will take whatever they say it at this point true that doesn’t state a case against Wells Fargo you can’t change the rules to create a system and then file suit because a rule don’t that nobody agreed to work or followed,. And that’s what we have here there is no allegation that the foreclosure was improper; that they didn’t get notice under Alabama law or any notices required by the mortgage or that the sale wasn’t properly advertised or that the sale didn’t occur. There’s no allegation to that.

     And another thing, as to the foreclosure sale, the city of Ozark brought the property. So, now they are the person, they are the entity that owns the property. They paid for it at a foreclosure sale. And you would have had a one-year right of redemption where somebody could have come in and bought the property for exactly what was paid at foreclosure by the city of Ozark. So, that wasn’t done.

     And, you know, we don’t hear any of this and we get and this suit, filed in the federal court on a 1982 claim, was dismissed and sent to this court and Your Honor they don’t have the right parties, they don’t have any allegation that states claim under Alabama law.

     This shows me that the note had been soundly rejected by the court. This is a nonjudicial state. You don’t have to show somebody an original note in order to conduct a foreclosure. And so, that doesn’t state a claim. And then there is a foreclosure and that that somehow split the note. Your Honor, you see a lot of this with these pro se cases. It’s all over the Internet, and it’s been rejected also by Alabama Supreme Court in Cullman, this note splitting theory. And a foreclosure is not even note splitting. What a foreclosure does, it doesn’t separate from a mortgage, it distinguishes the debt if the foreclosure sale price is sufficient to extinguish the debt. It doesn’t split the noted, it ends the note. And it ends the mortgage because it transfers title to the entity that purchases the property at the foreclosure sale.

     So, Your Honor, this motion to set aside foreclosure should be denied. We have a motion for summary judgment the court will set, and we look forward to arguing that. And we also say if Mr. Mizell is going to pursue this further if the court doesn’t dismiss, you know, this case, then he needs to bring the right people and so we can just go ahead and handle this at once and be done with it.

     THE COURT: All right, sir. Thank you. Mr. Mizell have you any rebuttal?

   MR. MIZELL: Well, I think I filed that they did not comply with the contract. We are not asking about whether they split the note and the mortgage and all that stuff. The note was split because they don’t have it. The proven supposition is that three days after Wells Fargo got the note signed, that ends the Truth in Lending law, after rescission ends, they take the note then put it in a scan and it then becomes an electronic file. The original note is shredded. It no longer exists, it’s gone. I can't pay what doesn't appear and does not exist.

     Okay. Now, that would be fine if I had the money and didn’t have to go to Mr. Graham. But Mr. Graham is old-fashioned like the Ozark Baptist Church. When it paid in full the signed note, the event was reported in the Southern Star. The note was publicly burned. The burning was held at a church worship service.

     Mr. Graham thinks he’s got to see the note before he pays it. Wells Fargo said they didn’t have it to present it. So, what do I do? I’m between two things, the 20 century the 21^st century, if you will. That’s my dilemma. I can’t pay for it if Mr. Graham wants to know, and I can’t pay for it if he doesn’t get the note after full payment. So, what am I going to do?

     And then we go to the bank over and over seeking the right to pay the note in full. In 2012, we were supposed to sit down here in the bank of Ozark building, which is now Wells Fargo, and give them the money, permission to take it out of Mr. Graham’s deposit account in Birmingham, and Wells Fargo was then to give me the paid note so I could give it to Mr. Graham. And I was going to make the mortgage where he could use work on the house with a 25% tax credit, and I was going to pay Mr. Graham 3% interest. If that had happened, we wouldn’t be here today. But on that day, the law says because we offered to pay it and had the money to pay with, that’s when the interest stopped. Wells Fargo said we were late. We were not late. They were just charging us interest against the law. So, this $22,000 worth of interest since 2012 is ours, Wells Fargo is the thief, that’s all. That’s what the law says. I didn’t say it. I don’t know if I’m right or wrong, but that’s what the law says.

   Okay. So, where’s the $22,000 that is taken by Wells Fargo? They could not refuse to take payment in full. They can’t take any more interest. They did anyway.

     Now, Mr. Andress was talking about the foreclosure being properly advertised in the paper. I can tell you that I paid $283 to get absolute proof in the paper that we did not consent because we were not in default. Wells Fargo knew we were not in default. We asked attorney Morris Hardwick and whatever, to let us pay the note. They sent us a letter saying you are in complete default, everything is due. I said, fine, bring us the note, we’ll pay it.

     Not a single response from them, not a word. Sent them again registered mail. No response. They sent somebody down here and auctioned the property. The auction was supposed to be at 11 am. I think it was conducted at 1:30 pm. Is something to be hidden, no exposure of what they were doing. The original note can’t be shown because it’s been destroyed.

     That’s just a fact now, if destruction of the original is not separation of the note and the mortgage, I don’t know what it is. Who all are to be sentenced to 20 years?

     If Wells Fargo contends that the note has not been destroyed, bring it here and stamp it paid in full and acknowledge that it is mine. I will own it. Wells Fargo will not.

     THE COURT: Mr. Mizell, let me interrupt you just a minute. Just make your argument to me, okay.

     MR. MIZELL: I’m sorry. His ears are indeed sensitive to facts.

     THE COURT: ---rather than to him.

     MR. MIZELL: I’m saying a fact that the note is my property especially since the auction paid the note in full.

     THE COURT: Yes, sir.

     MR. MIZELL: Wells Fargo sent a 1099A to the IRS saying that FMHLC was the lender and that I had abandoned the property. All Wells Fargo wants is unjust enrichment. That’s all. They could care less about the town, they could care less about me, they could care less about this court. When you send them something, they going to go out of their way to evade responsibility. There are not to give an account for their actions. They don’t work the case anymore. They moved to another case or whatever, that kind of stuff. Wells Fargo is populated with devious folks, that’s true. Sorry, it’s been a long time.

     THE COURT: All right. Well, I will take your motion and arguments that have been made today and consider those, and I’ll be issuing an order. And then I’ll also, depending on the decision of this motion, decide about setting the motion summary judgment. Okay.

     MR. MIZELL: Your Honor, I want to thank you. When we were at federal court, they turned down the volume so much nobody could hear.

     THE COURT: Yes, sir.

     MR. MIZELL: Had I not had special sound equipment; I could never have heard what was said. It took me many weeks to get the audio and then I transcribed it using Dragon. And so, I want to thank you. I don’t think anybody had any trouble hearing I apologize.

     THE COURT: No, I appreciate it. Thank you. We stand adjourned.

(End of proceedings)

REPORTER CERTIFICATE

STATE OF ALABAMA

DALE COUNTY

     I, Stephanie H. German, Court Reporter and Notary Public, State at large, do hereby certify that the foregoing transcript is a true and correct reproduction of the testimony heard on said occasion.

     WITNESS my hand this the 3rd day of April 2015

/s/ Stephanie H German

           STEPHANIE H. GERMAN-CSR

                                                 ACCR LICENSE # 87

                                                                    Filed DALE COUNTY

                                                                            April 15, 2015

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