Words from the Rising Republics

December 10, 2016

 

You decide. It is against equity to deprive freemen of the free disposal of their own property. Wells Fargo controls the state and federal courts. Should one be allowed to pay off his mortgage and be allowed to sell his property? The following is a transcript of a USMD hearing. The attorneys used the WF “secret” Manual to deceive the courts, doing so perfectly. The property is 285 East Broad Street in Ozark, AL.

 

CASE #: 1:14-CV-00013-WHA-CSS

Mizell v. Wells Fargo Bank, N.A. et al (MAC+) Assigned to: Honorable Judge W. Harold Albritton, III Referred to: Honorable Judge Charles S. Coody Case in other court: Circuit Court of Dale County, Alabama, CV-13-000006 Cause: 42:1983 Civil Rights Act

Date Filed: 01/03/2014 DateTerminated:05/30/2014 JuryDemand: Plaintiff Plaintiff NatureofSuit:440Civil Rights: Other Jurisdiction: Federal Question

After weeks of delay the audio CD of the hearing was purchased. Sony Audio software converted the audio to a wave file. Dragon Naturally speaking transcribed the audio into text. Even the extremely low volume was brought forth.

 

Plaintiff

Haywood Jackson Mizell

Defendant:

Wells Fargo Bank, N. A.                                 represented by Stephen K. Pudner

Hearing proceedings held before Honorable Judge Charles S. Coody: Motion Hearing held on 2/28/2014 RE; Docket #8 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Wells Fargo Bank:, N.A.

In Gallery: James B. Graham

Began 10 AM lasted 16 minutes

 

Judge Charles S. Coody:

We are here for argument on the motion to dismiss filed by the defendants in Mizell versus Wells Fargo Bank 14 civil 13.

Mr. Mizell. Good morning.

Plaintiff Haywood Jackson Mizell:

Good Morning, Sir.

Judge Charles S. Coody:

I’ve read all of your materials.

And you raise a number of arguments all of which are soundly rejected by the Alabama courts. So why shouldn’t the motion to dismiss be granted?

You can pull the microphone down a little bit to you so you can speak into it. I understand you need to sit and I understand and that’s fine.

Plaintiff Haywood Jackson Mizell:

The first thing I think, is that the removal from the state to the federal court is in question, from my perspective. First of all, I don’t think that the federal courts have any jurisdiction over property in Alabama.

There were three items involved; one of them was distance, and of course Wells Fargo qualifies there. They are in Iowa and we Alabama for diversity of location, but the other one was that the property has value. From my perspective and from everybody who knows anything about real estate since it is without title that the property value is zero. So they can’t possibly qualify under that because they destroyed the method of getting any title. So since it doesn’t qualify, my question would be, why are we in this court?

Next, they have a list of procedures that they have to go by. I’m supposed to make a motion for it to be remanded back to the state court. Part is appealable and part is not. So until those issues are resolved, whichever way you rule one way or the other, your remanding to state courts, they will appeal and try their best to prolong over a long period time and since they have deep pockets, they want to spend me into submission.

Judge Charles S. Coody:

What is it that you want any court to do?

Plaintiff Haywood Jackson Mizell:

The court to do. If you look at the original petition, I simply didn’t ask for any money. I just wanted them to bring forward their standing or whether they are the holder-in-due-course. Because they went ahead and said, on the first legal notice, that I was in default. When I was not in default.

I wanted to pay it off. I had money to pay it off, even had it in silver but they wouldn’t give me any indication that they were in possession. Federal law requires, at least most courts require, a lien be perfected by possession. As long as there is somebody out who might have some claim in equity against the legal title to the property, then there is a “cloud” over the title.

Now the city of Ozark bought the property knowing they did not have title. They have the same motive that I had originally, and that is to preserve this very, let’s say, “Mona Lisa painting”, if you will as from some’s perspective about the property.

So that basically what I’m asking the court that if they have something to present, it is very simple. The city of Ozark paid for the debt. There is no question about the debt being satisfied. The law says they must surrender the instrument when full payment is made. It has been over a whole year. So now we have this question before us. We have to know that they have separated the note from the mortgage.

Judge Charles S. Coody:

Mr. Mizell, I’ve read that argument. I don’t know why you think that argument has any validity, but it doesn’t have any validity. So don’t waste the court’s time. It is invalid.

Plaintiff Haywood Jackson Mizell:

The question is this, they have the note, and just let me have it, that’s all.

Judge Charles S. Coody:

Well it’s not your note. It’s Faye Mizell’s. You did not sign the note. Alice Mizell signed the note.

Plaintiff Haywood Jackson Mizell:

Okay. Something of what I conceded that I don’t know why it was, but the next thing was I signed the security instrument.

Judge Charles S. Coody:

True

Plaintiff Haywood Jackson Mizell:

In the Security Instrument says that the Borrower Covenants. So my job is to defend the title. That is what I’m trying to do, unless I am misguided. Tell me how I am misguided.

Judge Charles S. Coody:

For what purpose are you trying to do that? Look you had a mortgage. You didn’t pay it. They foreclosed on you. Are you telling me that you don’t have to pay a debt you owe?

Plaintiff Haywood Jackson Mizell:

The question is that I was more than happy to pay the debt.

Judge Charles S. Coody:

The fact is, you didn’t pay the debt as you were supposed to. That’s a big difference. Let me ask counsel for the defendant something. Mr. Mizell, for the first time, admittedly does raise an interesting question about jurisdiction of diversity. The original complaint in this case was filed, then there was an amended complaint filed, it was at that point that you moved the case, but didn’t diversity exists at the time of the original complaint.

Defense Counsel Stephen K. Pudner:

Service was never perfected in the state court. The state court had shown Wells Fargo as being served, but was stricken later. They had served on foreclosure counsel, the secretary of the former foreclosure counsel office and the court had shown that as a Wells Fargo service.

Even today Wells Fargo has never been actually served. In the state court we became aware and timely removed as soon as we became aware of the state court lawsuit, but it was not because of the amended complaint being filed.

As soon as we got notice of the lawsuit, we did remove timely. And as far as is there diversity? There is diversity of the properly served parties. And Mizell asked $1.3 million in damages.

Judge Charles S. Coody:

Yeah.

All right.

Mr. Mizell, one of the claims that you appear to make, is something that you characterizes as a due process claim. Tell me about that.

Plaintiff Haywood Jackson Mizell:

I filed this Petition for Injunctive Relief. I had filed a Misprision of Felony and because, even though I didn’t sign the promissory note, I did sign the security instrument. Later I had an exchange with Wells Fargo and they couldn’t talk to me unless I signed that I would be speaking in behalf of my wife, Alice Faye, which I did. And they began talking to me.

Well I left. I didn’t know what it will do that day that was designated to be foreclosed but I had a guy who said he was there. There were a bunch of Sheriff Deputies and a bunch of City Policemen and of Clerk of the Court, I think. I don’t remember exactly, but he reduced that to an affidavit and said he would give it to me. Well, I didn’t know until I actually came up here to the Supreme Court library and found out that this basically is a deprivation of due process rights. Because in all called self-help repossession, all non-judicial, it has to be 100% consent. I had filed in the paper, when they had a legal notice that there was default, that there was no default.

I was prepared to pay and all they had to do was to bring the note and my wife would pay.

I got the affidavit from the sources of the funds. It was Mr. Graham.

Well, we began years ago and he gave me a job which enable me to go to college. So I have very affectionate feelings toward him.

He was been having some serious health problems. Now he is well. In fact I think we should feel honored that he’s in our present now. He is in the courtroom, Mr. James B. Graham. So he said that he reduce his to an affidavit that he was prepared to lend me the money.

I called Wells Fargo and said he was up visiting his father-in-law in Iowa. Our thinking was, if you have the note here Wednesday, we will have the cash there, which is already on deposit in the Birmingham bank in silver. If you will have it here, we will make the exchange.

The Wells Fargo lady says, “We don’t disperse original documents”.

I said, “Well mame, the law says that I must pay. And I got a covenant that sees to it that it’s paid. I will pay it. That is my covenant. If we continue to pay it to the end, then can I get the note?

She said, “No”.

I said, “Mame, you understand the law says you must surrender the note “.

She said, to the exact affect, what she said was that that is the Uniform Commercial Code 3 and we’re not governed by that, we don’t have to abide by that, and I said, will you put that in writing, and also tell me why you think you don’t have to give it. So she sent me a letter that said, we don’t disperse original documents. And we are not required to do so because we never filed it in public office. She stated that it was in at 2107. So that was it, sorry.

Judge Charles S. Coody:

Who are you claiming deprived of due property? Who is it that you claim deprived you of due process?

Plaintiff Haywood Jackson Mizell:

I don’t know them individually. All I know is they were law enforcement and they were there present.

Judge Charles S. Coody:

Well, they are not named as defendants in this lawsuit.

Plaintiff Haywood Jackson Mizell:

I don’t know who they are. I think they are named inside of the affidavit of those who were there present. I think one of them is the city, County Clerk I think his name is David Glen or something like that. I don’t know because I was not there. I cannot speak firsthand.

Judge Charles S. Coody:

Well if you’re going to make claim about somebody you got to be able to identify them, and we don’t have, we don’t have.

Plaintiff Haywood Jackson Mizell:

I submit to the people that were there and their testimony to identify them in the affidavit.

Judge Charles S. Coody:

Well, anything else?

Plaintiff Haywood Jackson Mizell:

Well, I think for a longtime I didn’t understand why they were trying to be so evasive. I did find the law that you know about process service and then they were told to file Title 12. And then Failure to state a claim that relief could be granted. Now I am supposed to move to the state court. I found that it in May one of the Circuit Judges in Dale County ruled on an identical claim. He ruled that the foreclosure deed be null and void, everything reversed. He identified the couple who were the owners of the property, and then said they were subject to the mortgage that was on file at the courthouse.

They came back a little later and try to foreclose again on him. He filed another public notice that he had paid and must have the original document to prove it. On the original document would be the absolute proof that it was “without recourse”, that it had been paid. They didn’t so have. I think it was Citicorp. The judge says that the other side bring forth the mortgage, bring forth the complaint into the Judicial Court and prove the case that states that the couple would have to yield to what they already agreed to pay. At least it would have to be something they had agreed to.

I may not be speaking that in legalese, but I do have a copy of that here if you would like to see that particular ruling.

Judge Charles S. Coody:

Well that ruling is not applicable here. I don’t think it is the same set of circumstances.

Anything else? Counsel I have read all your submissions.

Defense Counsel Stephen K. Pudner:

Just a quick. I would like to point out that Wells Fargo feels bad for Mr. Mizell’s situation. It appears that he came under the sway of this James Graham who is in the courtroom. He filed similar lawsuit against Wells Fargo in state court 2011 900069 in Dale County. His claims were rejected. He was enjoined from taking any further actions against. He appealed it. His appeal was dismissed. He then filed a lawsuit in this court CV 12-1034. His claim was again rejected and he appealed and the 11^th Circuit rejected his claims. Apparently, he is here to do proxy for Mr. Mizell.

Plaintiff Haywood Jackson Mizell:

I didn’t hear him. Did he say someone filed a suit?

Judge Charles S. Coody:

Well, I heard him Mr. Mizell. I understand.

Gentlemen, I’ll take the motion to dismiss under submission. Mr. Mizell, I have read all of your papers and will consider all the arguments that you have made in writing and this morning. We will be adjourned.

   Long, but perfect example why the swamp must be drained.

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