Words from the Rising Republics

May 03, 2020

 

Haywood Jackson Mizell                                                                     July 20, 2017

4518 Woodledge Drive                                   CERTIFIED MAIL 7013 1710 0002 1101 7705

Montgomery, AL 36109                       Return Receipt Requested 9590 9403 0711 5196 55783 46

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Wells Fargo Home Mortgage

P.O. Box 10368

Des Moines, IA 50306-0368

ATTN: Leesa Whitt-Potter

Senior Vice President

Wells Fargo Home Lending

 

Subject: Request for instrument surrender Account 708-0128507779

 

Dear Leesa Whitt-Potter,

 

Thank you for your letter dated July 13, 2017. Your research is incomplete. Please allow me to state my primary concerns regarding your non-compliance. It is my duty to defend the title both equitable and legal.

 

Let me give you facts of record that should help in the completion of your research.

 

SIMPLE QUIET TITLE OR WHO HAS SUPERIOR TITLE?

As to Quiet Title Actions, Title Theory Explained, the title theory of mortgage law "splits the title [to a property] in two parts: the legal title, which becomes the mortgagee's and secures the underlying debt, and the equitable title, which the mortgagor retains." LemeLwn v. U.S. Bank Nat'l Ass)1, 721 F:3d 18, 21 at 23 (citing Bevilacqua v. Rodriguez, 955 N.B.2d 884, 894 (Mass 201I)) (internal quotation marks omitted); see also Houle v. Guilbeault, 40 A.2d 438,423 (R.I. 1944).

In real estate law, "equitable title" refers to a person's right to obtain full ownership of a property or property interest. This is often contrasted with or used in conjunction with the term "legal title." Legal title is the actual ownership of the land.

A mortgagor can reacquire this defeasible legal title by paying the debt which the mortgage secures.

Wells Fargo improperly refused prepayment or the purchase of the legal title. Default was used for a wrongful foreclosure. Wells Fargo had no valid lien and was not the holder in due course a sale without “cloud” over title was prohibited.

Alabama Title Theory (State)

A mortgage law theory that holds that from the date of the mortgage execution until the mortgage is satisfied or foreclosed, legal title belongs to the mortgagee and the right to possession belongs to the mortgagor while the mortgage is not in default. When prepayment is refused, there no longer can the word default be used thereby preventing foreclosure.

American Jurisprudence 2d  § 618. Liability for wrongful repossession

Furthermore, it has been said that where the creditor improperly refuses to accept payment of the debt, the creditor is estopped from repossessing the collateral on the basis that the debtor is in default, a conversion action is especially appropriate where wrongful repossession is at issue. (See Chesterton State Bank v Coffey (Ind App) 454 NE2d 1233.)

NOTE: James B. Graham agreed to provide funds already on deposit in satisfaction of any proven debt. Wells Fargo refused payment because it never loaned any money. FHLMC was the lender who sold the debt instrument that in turn was stolen.

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.”

No legal title was ever shown to be in the possession of Wells Fargo.

Ala. Code § 7-3-305. Defenses and Claims in Recoupment.

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.

 

We are not concerned with the promissory note of the loan. We are concerned only with the recorded title instruments, (Grant or Warranty Deed) which involves all matters involving title to the property along with all recorded security interest.

 

A mortgage is known as a security instrument which serve to secure the promissory note debt or loan obligation as against a certain parcel of property. The only difference is that a deed of trust possesses the “power of sale” authority, Alabama is a nonjudicial foreclosure statue state. If a default occurs, the lender orders the trustee to sell the property by publication (notice) and sale (generally on the courthouse steps). THE PROBLEM: THERE CAN NEVER BE DEFAULT WHEN PAYMENT IS REFUSED.

Superior title is represented in the grant the which represents ownership interest in the property as a grantee. The properties ownership is represented by the recording of what is known as the grant deed or Warranty Deed.

 

“BORROWER COVENANTS that Borrower is lawfully seised 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.”

 

Where is a “power of sale” instrument?

Wells Fargo possesses no authenticated instrument granting “power of sale”.

 

THE NOTE IS THE NOTE. TITLE IS THE TITLE.

The information from Wells Fargo Bank, N.A. cancel/rescind silence is proof that there was no “power of sale” authority. The information requested complete with proof of WF silence can be attached as exhibits in pleadings that are part of a prove-up process called deraignment.

 

“No title is conveyed through the sale” when a party who lacks a right to enforce the note proceeds with foreclosure sale. Williams, supra. Cited in Holms v. Wells Fargo Home Mortgage, Inc. et al, 43^rd Jud. Cir. Ct. Div II, No. 08CN-CV00944 (Jan. 26, 2015).

 

A lender can foreclose on a borrower in default, but cannot evict without “prove-up” instruments containing “power of sale”. A note is an obligation to pay. Title conveyance can be purchased from one who has “power to sale”.

MAXIM OF LAW: What belongs to us cannot be transferred to another without our consent. 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 judgment of a competent tribunal.

 

WHO HAS SUPERIOR TITLE TO THE PROPERTY?

 

WHO HAS SUPERIOR TITLE TO THE PROPERTY is the question to be resolved by a quiet title action. Who is now vested with seisin (right to quiet title enjoyment), which includes the right to encumber the property.

The objective for filing a case for quiet title

The “thing” is a piece of property that must be rendered marketable again because there are defects in the chain of title and Wells Fargo and any other who profess to have any such interest in the title legally, do not. The primary purpose is to adjudicate the toxic, void and bad Title Instruments recorded against the property that is to be defended at all cost. Wells Fargo practiced “Robo-Signing” and made such practice commonplace. Now Wells Fargo is presenting instead the unsworn and unverified statement of barred attorneys as” competent evidence”. The lap-dogs (lawyers) for Wells Fargo are all brainwashed and trained, (See manual) to deflect attention from the title issue, but to instead focus on recorded false instruments.

 

MIZELL’S DUTY TO DEFEND

First One: Mizell’s name is either on the deed or it’s not.

NEEDED IN PLEADINGS: THE CLAIM OF SUPERIOR TITLE in pleadings and PROVE that no other claimant has any legitimate “potential adverse claim” to title to your property through an evidentiary process. (YOU MUST ASSERT YOUR RIGHTS). Chain of Title Assessment, or COTAs are not to be used as exhibits, but are valuable for use in deraignment of title.

                 a certified copy of warranty deed included as exhibit.

                 Contractual obligation to defend title.

                   Supporting Statutes and Case Law

Second One: A valid title report from a bono fide source, a report that can be attached to Mizell’s pleadings as exhibits.

Third One: Court ordered certificate of publication.

 

STATUE OF LIMITATION: NONE.

Alabama Property Rights & Remedies § 10.10(e) there is no statutory time within which an action to quiet title must be brought.

Anyone who claims an interest in the property must “prove it up.

 

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."

 

ALABAMA · (Title Theory State)

Adverse Possession Statute: Alabama Code § 6-5-200

Declaratory Judgment Statute: Alabama Code Article 5

Deficiency Judgment Statute: Alabama Code Title 35 (Deficiency judgments can be sought post-foreclosure or deed-in-lieu-of foreclosure in Alabama)

Lis Pendens Statute: Alabama Code § 35-4-131 (Notice of Actions)

Quiet Title Statute: Alabama Code§ 24-9-8 (2013)

     Service of process: Alabama Rules of Civil Procedure Rule 4.1

     U.C.C. Statute Title 7, Volume 6 (effective January 1, 1967)

Type of foreclosure State: Non-Judicial

Note Required to Foreclose: Either/Or, depending on circumstances Shall or May have “Power of Sale” is the question that gives way to the fraud, which is the qui tam subject.

 

Redemption Period: 3 years

 

Type of Tax Sale: Lien

 

Applicable Authority Allowing Challenges to Void, Voidable or Fraudulently

Recording Mortgage Documents Affecting Chain of Title:

 

1. Ala. Crim.Code, Title 13A, Ch. 9, Art. 1, § 13BA-9-4, Forgery; 2. Ala. Crim.Code Title 13A, Ch. 9, Art. 6, 13A-9-130(c)(l)(c), Residential mortgage fraud; 3. A common law right to cancellation of written instruments exists. See Woodlawn Theatre Co. v.Continental Securities Corp. of Alabama, 237 Ala. 88, 91 (1939). 4. Congress v.U.S. Bank, 98 So.3d 1165, 1169 (Ala. 2012), [Allows home owner to challenge an assignment and promissory note's authenticity.]

 

Statute Description and Actionability:

1. Ala. Crim.Code, Title 13A, Ch. 9, Art.1, § 13A-9-4 makes it a felony to falsify any written instrument to be filed or recorded in a public office; 2. Ala. Crim.Code Title BA, Ch. 9, Art. 6, § 13A-9-130©(1)© makes it a felony to file or a forged written instrument in a real estate transaction; 3. The criminal statues should be actionable pursuant to the Ala.Deceptive Trade Park. Act, Ala. Code§§ 8-19-5(27), 8-19-3(3), and 8-19-10.

 

Common Law or Civil Fraud Statute:

 

1. Ala.Civ.Code, Title 6, Ch. 5, Art. 8, l § 6-5-101, Fraud, Misrepresentations of Material Facts; 2. Common Law Fraud:“The elements of fraud are (1) a false representation (2) of a material existing fact (3) reasonably relied upon by the plaintiff {4) who suffered damage as a proximate

consequence of the   misrepresentation." Saia Food Distribs. &Club, Inc. v.

SecurityLink from Ameritech, Inc., 902 So.2d 46, 57 (Ala. 2004).

 

ALABAMA STATE CASE NOTES:

As to Quiet Title Actions, General: In Wise v. Massee, 239 Ala. 559 (Ala. 1940), the court Observed that “in action to quiet title, a certain, continuous identification of the property is necessary.

 

HOW TO ADVANCE THE PROJECT

 

1. 1.Make Ozark attractive as a tourist attraction
   1. 2.Broad Street renovated as visit to previous periods rich in historical events and symbols.
   2. 3.Advance Fort Rucker’s Army Aviation Museum to the number one Ala. tourist attraction.
   3. 4.Show Fort Rucker as the destination for all world governments to train helicopter pilots.
   4. 5.Show Southeast Alabama as the capital for the harvest of peanuts.
   5. 6.Associate Ozark with white beach sands that are only a short distance away.
   6. 7.Film stories about Ozark, the army aviation and the south for marketing.

 

WHAT HAS BEEN DONE AS THE FOUNDATION FOR THE PROJECT

 

Aviation Museum Open

Warrior Hall 1.4 billion facility for the simulator training of helicopter pilots.

Peanuts are the number one cash crop in southeast Alabama.

Broad street has experience over $4million in renovations.

Two of ten screen play ready for production.

Panama City has now an international airport.

Ozark has State Junior College for aviation skills.

 

WHAT IS THE MAJOR OBSTACLE?

 

“Clouded Title” must be removed form Holman House on Broad Street. “Cloud” imposed by powerful “criminal enterprise”.

Restore the maxim denied by Wells Fargo:

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.

 

The return of the property to marketability will be done.

 

Yours truly,

 

 

 

Haywood Jackson Mizell

334-239-8987

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