Preview
Cause No. 141-256210-11
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In the Interest of: Rodney L Wagner and all assets thereof. C'J -:-
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Rodney L Wagner §
2643 Coastline Drive, §
Grand Prairie, Texas 75054 § ,- .
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Affiant/Petitioner § IN THE DISTRICT COURT
§
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§ HL_JUDICIAL DISTRICT
-vs- §
BANK OF AMERICANA and all successors, et al §
CORPORATION, §
BANK OF AMERICA HOME LOANS SERVICING LP §
BAC HOME LOAN SERVICING, §
COUNTRYWIDE BANK FSB, §
MORTGAGE ELECTRONIC REGISTRATION §
SYSTEMS INC., §
BARRETI DAFFIN FRAPPIER TURNER & ENGEL §
LLP & TOMMY BASTIAN, §
FEDERAL NATIONAL MORTGAGE ASSOCIATION §
AKA/FANNIE MAE §
Respondents § TARRANT COUNTY, TEXAS
VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR
WRIT OF POSSESSION AND COMPLAINT FOR VIOLATION OF TERMS AND
BREACH OF CONTRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST
SUPPORTED BY AFFIDAVIT
TO THIS HONORABLE COURT
In the above reference cause, Affiant affirms that the defendants did willfully breach the original
terms of the Deed of Trust and Note. (Instrument Number D208000451) Evidence will show that
while Affiant did attempt to get clarity and understanding as to how the "Lender" BANK OF
AMERICA N.A. and all successors, ET AL came to anything other than a third party debt
VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND
COMPLAINT FOR VIOLATION OF TERMS AND BREACH OF CONTRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST
SUPPORTED BY AFFIDAVIT
Page 1 of 19
collector without any rights to collect on a debt that had already been satisfied and should have
been reconveyed to the Affiant, COUNTRYWIDE FSB /BANK OF AMERICA N.A. ET AL did
hire its Servicing Agent, Mortgage Electronic Registration Services (MERS), Master Servicer,
to collect a debt that ithad purchased from Countrywide Bank, FSB (no longer in existence)
which according to the terms of the Deed of Trust was no longer enforceable as a debt because
the altered copy of the original Note shows that the debt had been paid. (Exhibit 1)
While Affiant did attempt to communicate and gain any valid proof of entitlement on the part of
respondents to collect a debt, a Qualified Written Request (for proof of standing) (Exhibit 2), the
Request for Validation of the Debt, and the Notice of Lender Default and Opportunity to Cure
were sent with expiration dates as to when the lender needed to respond. Per RESPA (Real
Estate Settlement Procedures Act) guidelines, the only response that was given by BANK OF
AMERICA N.A. ET AL was to give copies of "a note". The specific language asked for the
"Original wet ink signature" for Affiant's review. RESPA allows lenders to respond to a
Qualified Written Request (QWR) within twenty-one (21) days. The Lender did not respond to
the request within the 21 day timeline. While the "lender" sent copies of some of the requested
information, because the "lender" is nothing more than a third party debt collector, who as such
is subject to the Deceptive Trade Practices Act, the lender could not prove that they are the note
holder in due course. No such proof was forth coming despite request. RESP A also allows the
lender sixty (60) days to "cure" the offense. That date would have been November 22, 2011. All
other attempts (as mentioned above) fell on deaf ears. On September 30, 2011 BANK OF
AMERICA N.A. ET AL sent mail correspondence stating they were working on this Affiants
request. (Exhibit 3) On October 27, this Affiant filed a lawsuit requesting my mortgage
questions be answered. BANK OF AMERICA N.A. ET AL sent a response by mail dated
VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND
COMPLAINT FOR VIOLATION OF TERMS AND BREACH OF CO'HRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST
SUPPORTED BY AFFIDAVIT
Page 2 of 19
October 26th, one day before Affiant's lawsuit filed. (Affiant received this mail actually on
10/27/2011). That letter stated BANK OF AMERICA N.A. ET AL was working to get
requested documents. (Exhibit 4) This response was clearly outside of the window of
opportunity to cure as set forth by RESP A. This Affiant suspected that the September 30, 2011
letter was used as a stalling tactics to further hide the paper trail of frauds already perpetrated.
The Lender was put on notice that non response was agreement that no debt was owed and
Affiant was entitled to have the property reconveyed and all payments returned because the debt
was not owed. The only response from BANK OF AMERICA N.A. ET AL was foreclosure
papers stating that Affiants home would be sold the first Tuesday of November 1, 2011.
Affiant's home was actually foreclosed on as stated by BANK OF AMERICA N.A. ET AL.
Once again the Affiants home was traded as a securities instrument (D208000451) to FEDERAL
NATIONAL MORTGAGE AIK/A FANNIE MAE AND ALL SUCCESSORS ET AL.
It is this Affiants intent to prove that this non-judicial foreclosure was initiated to cover up the
numerous frauds and hide the trail of paperwork fraudulently obtained by the so-called lender,
BANK OF AMERICA N.A. ET AL
As to the claim of violation of terms and breach of contract, the copy of the Note (in evidence)
will show that while Affiant did sign a similar instrument December 28, 2007 there were no
stamps (as shown on the copy in evidence) showing "Pay to the Order of without recourse
COUNTRYWIDE, BANK FSB". The copy of the Note was signed by a Senior Vice President
Laurie Mecer. (Exhibit 5) Per the Deed of Trust, paragraph 19, once "Release. Upon payment of
all sums secured by this Security Instrument, Lender shall release this Security Instrument with
charge to Borrower. Borrower shall pay any recordation costs." Yet when the Deed of Trust had
VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND
COMPLAINT FOR VIOLATION OF TERMS AND BREACH OF CONTRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST
SUPPORTED BY AFFIDAVIT
Page 3 of 19
been sold yet again to the Third Party Debt Collector, BANK OF AMERICA N.A. ET AL, the
Note had been bundled as part of a Security and traded on and the Deed of Trust (instrument
number D208000451) was stillnot reconveyed to the Affiant/Borrower as per the terms of the
Contract. Because BANK OF AMERICA N.A. ET AL and its' servicer MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS INC. (both third party debt collectors) have never
been able to show the wet ink signature stating that they are in fact the holder in due course of
the Note, they must accept their position as a third party debt collector and fall under the
authority of the Deceptive Trade Practices Act that says that a debt collector must show the wet
ink signature proving they are entitled to collect a debt.
Additionally, the "loan" was never received by the Affiant. The verbiage in the deed of trust
says in Paragraph 19, As to Mortgage Electronic Registration Services (MERS), several courts
have found that MERS may not, as an entity with no interest that has never loaned money, has no
standing to assign back to a lender for the purpose of receiving unfair gain, it's "alleged" interest
in a property. In the Houston, Texas decision, NANCY GROVES vs. MERS, the District Court
and an Appellate Court held that MERS has no authority to convey an interest that was never
granted.
The assignment of the deed of trust in invalid, and of no force and effect, for the reasons set forth
above including, inter alia, the fact the MERS did not have standing or the legal authority to
assign the deed of trust which purportedly secured the note, and which served as the basis for a
claim to have the right to be a party to the non judicial foreclosure and sale of the home of the
Affiant. Thus the assignment of the deed of trust was at all times void. Affiant is entitled to an
order that the Assignment of Deed of Trust is void ab initio and cancelling such Assignment.
VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND
COMPLAINT FOR VIOLATION OF TERMS AND BREACH OF CONTRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST
SUPPORTED BV AFFIDAVIT
Page 4 of 19
COMES NOW HERE the living, breathing man, known as: Rodney-Lee: Wagner, who is
unschooled in law, makes this special visitation and Notices the conrt to take Judicial Notice of
the enunciation of the principles stated in Haines v Kerner, 404 U.S. 519, wherein the court
directed that those who are unschooled in law making complaints/pleading shall have the court
look to the substance of the complaint rather than the form. Let this be in and for the record. I,
Rodney-Lee: Wagner, hereinafter Affiant, hereby am writing this appeal in form of affidavit to
officially advert, point for point, the Original Petition For Forcible Entry Detainer/Writ of
Possession, and to present a counter claim herein now on and for the record. Good cause for
these actions are set forth within this affidavit and incorporated herein by reference. Affiant will
show by supporting competent evidence that; it has come to the Affiants attention that the bank
never did lend the Affiant any funds from said banks personal funds or depositors accounts.
Affiant agreed to receive a loan, not to be a depositor and have the bank receive the deposit for
free. Also, the bank had no right to sell the mortgage note and or deed of trust for two reasons.
The mortgage note and or deed of trust was deposited, and or sold as a security or other
negotiable instrument and the money was received, withdrawn and or accrued without
authorization by using a forged signature, and or pay to the order stamps etc., and two, the
contract was never truly fulfilled. The bank acted without authorization and is involved in a
fraud thereby damaging the alleged borrower aka Affiant.
On the grounds of breach of contract, false representation, and fraud in the inducement, your
presentment was void of necessary signatures to establish a contract. 15 U.S.C. § 1692 (e) states
that a "false, deceptive, and misleading representation, in connection with the collection of any
VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND
COMPLAINT FOR VIOLATION OF TERMS Al'iD BREACH OF CONTRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST
SUPPORTED BY AFFIDAVIT
Page 5 of19
debt," this includes the false representation of the character or legal status of any debt, and
further makes it a threat to take any action that cannot legally be taken.
And furthermore any action that derives or is created from any original contract i.e. the forcible
entry of detainer or any foreclosure actions thereof from any Loan#, Deed of Trust, and or
Mortgage Note, Case, Cause, petition Et. A!, applicable actions created against Affiant is null
and void until said dispute is settled with the original contract. Until then, there are no genuine
material issues of fact in dispute to and that according to the law; the Respondent is not entitled
to the relief prayed for in its Complaint.
The bank advertised it would loan money, which is backed by legal tender. Is not that what the
symbol $ means? Is that not what the contract said? Do you not know there is no agreement or
contract in the absence of mutual consent? The bank may say that they issued a check to seller
on behalf of the alleged borrower for the loan in question and now they owe the bank money.
However, that is totally false and this information shows you that the check came from the
money the alleged borrower provided, via a signed mortgage note and or deed of trust, and the
bank never loaned any money from other depositors.
In this affidavit, Affiant will show the law and the bank's own literature to prove Affiants case.
All the bank did was trick the Affiant into a one sided contract which did not disclose all terms
and procedures of the note. They got the mortgage note and or deed of trust without investing
one cent, by making Affiant a depositor and not a borrower. The key to the puzzle is, the bank
did not sign the contract. If they did then they must loan the money (Fiat). The bank did not
sign the note, they deposited the mortgage note and or deed of trust in a checking account and
used it to issue a check without ever loaning Affiant money or the bank investing one cent; the
VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND
COMPLAINT FOR VIOLATION OF TERMS AND BREACH OF CONTRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST
SUPPORTED BY AFFIOA YIT
Page 6 of19
Affiant provided the legal tender. The bank had no intent to loan, making it promissory fraud,
mail fraud, wire fraud, and a list of other crimes a mile long. The bank deposited the mortgage
note and or deed of trust in a checking account. The deposit then became the bank's property.
Then, they withdrew the money without a signature, and called the money, the banks money that
they loaned out. If the bank deposits a mortgage note and or deed of trust, then the bank must
credit the account of the signatory claiming the bank owes said signatory for the amount of said
mortgage note and or deed of trust deposited. The bank received government bonds, cash or an
accrued entry by selling the mortgage note and or deed of trust and without having to give up any
investment. Anytime the bank receives a deposit, the bank owes the depositor the money. On
these grounds Affiant does not owe the bank the money. How can they make a felony, legal?
They cannot! Fraud is fraud is fraud is fraud!
Our Nation, along with every State of the Union, entered into Bankruptcy, in 1933. This changes
the law from "gold and silver" legal money and "common law", to the law of bankruptcy. Under
Bankruptcy law the mortgage note and or deed of trust acts like money. Once the mortgage note
and or deed of trust are signed it acts like money. Damages exist in that the bank refuses to loan
their money. The bank denied the alleged borrower equal protection under the law and contract,
by merely exchanging one currency for another and refusing repayment in the same type of
currency deposited. The bank refused to fulfill the contract by not loaning the money, and by the
bank refusing to be repaid in the same currency, which they deposited as an exchange for another
currency. A debt tender offered and refused is a debt paid to the extent of the offer. The bank
has no authorization to alter the alleged contract and to refuse to perform by not loaning money,
by changing the currency and then refusing repayment in what the bank has a written policy to
VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICAT!ON FOR WRIT OF POSSESSION AND
COMPLAINT FOR VIOLATION OF TERMS A:>ID BREACH OF CO:>ITRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST
SUPPORTED BY AFFIDA V!T
Page 7 of 19
deposit. In the transaction the bank was to loan legal tender to the borrower, in order for the
bank to secure a lien. The bank never made the loan, but kept the mortgage note and or deed of
trust the alleged borrower signed. This allowed the bank to obtain the equity in the property (by
a lien) and transfer the wealth of the property to the bank without the bank's investment, loan, or
risk of money. Then the bank receives the alleged borrower's labor to pay principal and Usury
interest.
PLEASE TAKE NOTICE: Please be advised that this affidavit stands as the truth, until
successfully rebutted.
Respondent(s) must respond or rebut the Affiants statement, with their own statement, point for
point, sworn under penalties of perjury. Under the Jaw, silence is acquiescence. That means if I
send you a complaint; explain what Jaws you have broken, and swear an affidavit of the facts,
then you MUST answer. If you fail to answer my charges; if you fail to rebut my affidavit on a
point for point basis, then by your silence you acquiesce. In effect, by your silence, you agree
with my position under the law!
Pursuant to 15 U.S.C. § 1692 (g) (4) Validation of Debts, if you have evidence to validate your
counterclaim/claim that this presentment does not constitute fraudulent misrepresentation and
that one owes this alleged debt, this is a demand that, you provide such validation and supporting
evidence to substantiate your counterclaim/claim. Until the requirements of the Fair Debt
Collection Practices Act have been met and your claim is validated, you have no jurisdiction to
continue any collection activities.
SUMMARY OF DAMAGES DUE TO PETITIONER
ACCOUNTING AND TRUE BILL
Affiant is entitled to return of all funds paid by RODNEY LEE WAGNER from December 2006
where Affiant paid monthly payments plus all late fees and interest fraudulently charged in
VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND
COMPLAfNT FOR VIOLATION OF TERMS AND BREACH OF CONTRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST
SUPPORTED BY AFFIDAVIT
Page 8 of19
connection with the so called loan in connection with Deed of Trust having the Instrument
number D208000451. Damages will be computed as follows, For Conversion 4 times for
Compensatory Damages, and 200 times for Punitive Damages.
See Notice: LEOPATRA HASLIP eta!. v. PACIFIC MUTUAL LIFE INSURANCE, INC.
499 U.S.!, 113 Fed 2d I, Ill S. Ct. 1032 (no. 89-1279)
"Affiant reserves the right to amend and correct and adjust the accounting and True Bill"
The progressive Sum Certain in US Dollars is in numerical parity with the Euro Dollar and any
other superior currency backed by gold. Sum Certain June also be paid in any numerical value in
gold and equal value in real property and natural resources, and any agreeable combination of the
above.
SURETY
The surety/property utilized to guarantee the payment of this commercial lien IS the
operational/commercial bonds and or Insurance policy of each of the Lien Debtors. If the
bond(s) of the Lien Debtors is/are insufficient for coverage, the payment(s) the assets of the Lien
Debtor(s) will be utilized as follows: all the real and moveable property and bank and savings
accounts of the Lien Debtors except wedding rings, keepsakes, family photographs, diaries,
journals, etc., and the property normally exempted in the lien process (includes survival
provisions).
PUBLIC HAZARD BONDING OF CORPORATE AGENTS: All officials are required by
federal, state, and municipal law to provide the name, address and telephone number of their
public hazard and malpractice bonding company and the policy number of the bond and, if
required, a copy of the policy describing the bonding coverage of their specific job performance
or Corporation. Failure to provide this information constitutes corporate and limited liability
insurance fraud (15 USC) and is prim-a-facie evidence and grounds to impose a lien upon the
official personally to secure their public oath and or service of office.
VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND
COMPLAINT FOR VIOLATION m· TERMS AND BREACH OF CONTRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST
SUPPORTED BY AFFIDAVIT
Page 9 of 19
CASE LAW
The following material is case law on the subject and other related legal issues.
"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, II 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
LED637.
"The doctrine of ultra vires is a most powerful weapon to keep private corporations 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'!
Bank of Union, 133 SC
202, 130 SE 759(1926).
"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).
VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND
COMPLAINT FOR VIOLATION OF TERMS AND BREACH OF CONTRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST
SUPPORTED BY AFFIDAVIT
Page 10 of 19
"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'! 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.
"The word 'money' in its usual and ordinary acceptation means gold, silver, or paper money used
as a circulating medium of exchange ... " Lane v. Railey 280 Ky 319, 133 SW 2d 75.
"A bank is not the holder in due course upon merely crediting the depositors account." Bankers
Trust v. Nagler, 229 NYS 2d 142, 143.
"A check is merely an order on a bank to pay money." Young v. Hembree, 73 P2d 393.
"Any false representation of material facts made with knowledge of falsity and with intent that it
shall be acted on by another in entering into contract, and which is so acted upon, constitutes
'fraud,' and entitles party deceived to avoid contract or recover damages." Barnsdall Refining
Com. v. Bimam Wood Oil Co .. 92 F 26 817.
"Any conduct capable of being turned into a statement of fact is representation. There is no
distinction between misrepresentations effected by words and misrepresentations effected by
other acts." Leonard v. Springer 197 Ill532. 64 NE 301.
"If any part of tl1e consideration for a promise be illegal, or if there are several considerations
for an unseverable promise one of which is illegal, the promise, whether written or oral, is
wholly void, as itis impossible to say what part or which one of the considerations induced the
promise." Menominee River Co. v. Augustus Spies L & C Co., 147 Wis 559. 572; 132 NW
1122. "The contract is void if itis only in part connected with the illegal transaction and the
promise single or entire." Guardian Agency v. Guardian Mut. Savings Bank, 227 Wis 550, 279
NW 83. "It is not necessary for rescission of a contract that the party making the
misrepresentation should have known that it was false, but recovery is allowed even though
VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND
COMPLAINT FOR VIOLATION OF TERMS AND BREACH OF CONTRACI', TO ASSIGN ITS INTEREST IN DEED OF TRUST
SUPPORTED BY AFFIDAVIT
Page 11 of 19
misrepresentation is innocently made, because itwould be unjust to allow one who made false
representations, even innocently, to retain the fruits of a bargain induced by such
representations." Whipp v. Iverson, 43 Wis 2d 166.
OTHER MAXIMS, POINTS AND AUTHORITIES
!.Title 31 Subtitle III Chapter 38 (3802): Any person who makes, presents, or submits, or
causes to be made, presented, or submitted, a claim that the person knows or has reason
to know- omits a material fact; is false, fictitious, or fraudulent as a result of such
omission.
2."A judgment rendered in violation of due process is void." World Wide Volkswagon v.
Woodsen, 444 U.S. 286, 291; National Bank v. Wiley, 195 US 257; Pennoyer v. Neff, 95
us 714.
3. " ...the requirements of due process must be met before the court can properly assert in
personam jurisdiction." Wells Fargo v. Wells Fargo, 556 F2d 406, 416.
4. Notification of legal responsibility is "the first essential of due process of law."
Connally v. General Construction Co., 269 US 385,391.
5. fault: Blacl<'s Law Dictionary, 4 1h ed., page 738 "American Law- Negligence; a error
or defect of judgment or conduct; any deviation from prudence, duty, or rectitude; any
shortcoming, or neglect of care or performance resulting from inattention, incapacity, or
perversity; a wrong tendency, course, or act; bad faith or mismanagement; neglect of
duty."
6. Default: Black's Law Dictionary, 41h ed., page 505. "by its derivation, a failure. An
omission of that which ought to be done. Specifically, the omission or failure to perform
a legal duty. The term also embraces the idea of dishonest, and of wrongful act."
7. Grant: Black's Law Dictionary, 2"rt edition page .547 "a generic term
applicable to all transfers of real property. Wash. b Real Prop 181,353
8. Grantee:Black's Law Dictionary 2"d edition "the one by whom a grant is made."
9. Grantor :Black's Law Dictionary 2"d edition the person to whom a grant is made"
The following questions are required to be answered by Petitioner(s) as officially
requested by Affiant within this Affidavit of Truth.
I. Did the bank loan gold or silver to the alleged borrower?
2. Did the bank loan credit to the alleged borrower?
VERIFIED AMENDED PLMili'IG AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND
COMPLAINT FOR VIOLA TIO'I OF TERMS AND BREACH OF CONTRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST
SUPPORTED BY AFFIDAVIT
Page 12 of 19
3. Did the borrower sign any agreement with the bank, which prevents the borrower
from repaying the bank in credit?
4. Is it true that your bank creates checkbook money when the bank grants loans,
simply by adding deposit dollars to accounts on the bank's books, in exchange, for
the borrower's mortgage note and or deed of trust?
5. Has your bank, at any time, used the borrower's mortgage note and or deed of
trust, "promise to pay", as a deposit on the bank's books from which to issue bank
checks to the borrower?
6. At the time of the loan to the alleged borrower, was there one dollar of Federal
Reserve Notes in the bank's possession for every dollar owed in Savings
Accounts, Certificates of Deposits and Checking Accounts (Demand Deposit
Accounts) for every dollar of the loan?
7. According to the bank's policy, is a promise to pay money the equivalent of
money?
8. Does the bank have a policy to prevent the borrower from discharging the
mortgage note and or deed of trust in "like kind funds" which the bank deposited
from which to issue the check?
9. Does the bank have a policy of violating the Deceptive Trade Practices Act?
10. When the bank loan officer talks to the borrower, does the bank inform the
borrower that the bank uses the borrowers mortgage note and or deed of trust to
create the very money the bank loans out to the borrower?
11. Does the bank have a policy to ledger the same money in two separate places at the
exact same time ?
12. Does the bank claim to loan out money or credit from savings and certificates of
deposits while never reducing the amount of money or credit from savings
accounts or certificates of deposits, which customers can withdraw from?
VERIFIED AMENDED PLEAD!r\G AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND
COMPLAINT FOR VIOLA TIOC< OF TERMS AND BREACH OF CONTRACT, TO ASSIGN ITS INTEREST TN DEED OF TRUST
SUPPORTED BY AFFIDAVIT
Page 13 of 19
13. Using the banking practice in place at the time the loan was made, is it
theoretically possible for the bank to have loaned out a percentage of the banks
Savings Accounts and Certificates of Deposits recorded on their books?
14. Ifthe answer is "no" to question #13. explain why the answer is no.
15. In regards to question #13, at the time the loan was made, were there enough
Federal Reserve Notes on hand at the bank to match the figures represented by
every Savings Account and Certificate of Deposit and Checking Account
(Demand Deposit Account)?
16. Is the bank required to follow and adhere, or simply obey the laws concerning,
Commercial Paper; Commercial Transactions, Commercial Instruments, and Negotiable
Instruments?
17. Did the bank lend the borrower the bank's assets, or the bank's liabilities?
18. What is the complete name of the banking entity, which employs you, and in what
Jurisdiction is the bank chartered of record?
19. What is the bank's definition of"Loan Credit"?
20. Did the bank use the borrowers assumed mortgage note and or deed of trust to
create new bank money, which did not exist before the assumed mortgage note
and or deed of trust was signed?
21. Did the bank take money from any Demand Deposit Account (DDA), Savings
Account (SA), or a Certificate of Deposit (CD), or any combination of any DDA,
SA or CD, and loan this money to the borrower?
22. Did the bank replace the money or credit, which it loaned to the borrower with the
borrower's assumed mortgage note and or deed of trust?
23. Did the bank take a bank asset called money, or the credit used as collateral for
VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION •'OR WRIT OF POSSESSION AND
COMPLAINT FOR VIOLATION OF TEIUIS AND BREACH OF CONTRACT. TO ASSIGN ITS INTEREST IN DEED OF TRUST
SUPPORTED BY AFFIDAVIT
Page 14 of 19
customers' bank deposits, to loan this money to the borrower, and/or did the bank
use the borrower's note to replace the asset it loaned to the borrower?
24. Did the money or credit, which the bank claims to have loaned to the borrower,
come from deposits of money or credit made by the bank's customers, excluding
the borrower's assumed mmigage note and or deed of trust?
25. Considering the balance sheet entries of the bank's loan of money or credit to the
Borrower, did the bank directly decrease the customer deposit accounts i.e. Deposit
Demand Account, Savings Account, and Certificate of Deposit for the amount of the
Loan in question?
26. Describe the bookkeeping entries referred to in question #13.
27. Did the bank's bookkeeping entries to record the loan and the borrower's assumed
Mortgage note and or deed of trust ever, at any time, directly decrease the amount
of money or credit !rom any specific bank customer's deposit account?.
28. Does the bank have a policy or practice to work in cooperation with other banks financial
institutions use borrower's mortgage note and or deed of trust as collateral to create an
offsetting amount of new bank money or credit or checkbook money or Demand Deposit
Account generally to equal the amount of the alleged loan?
29. Regarding the borrowers assumed mortgage loan, give the name of the account
which was debited to record the mortgage.
30. Regarding the bookkeeping entries, state the name and purpose of the account which was
created.
31. When the borrower's assumed mortgage note and or deed of trust was debited as a
bookkeeping entry, was the offsetting entry a credit account?
32. Regarding the initial bookkeeping entry to record the borrower's assumed
Mortgage note and or deed of trust and the assumed loan to the borrower, was the
bookkeeping entry credited for the money loaned to the borrower, and was this
Credit offset by a debit to record the borrower's assumed mortgage note and or
VERIFIED AMENDED PLEADI'IG Ar
• ., i
• •
DOC ID #: 00018769990612007
(C) "Lender" is
Countrywide Bank, FSB.
Lenderis a I!'EDSVGS BANK
org~~nized and existing under the Jaws of
THE UNITED STA!ES . Lender's address is
1199 North FairfaK St. Ste.500, Alexandria, VA 22314
Lender includes any holder of the Note who is entitled to receive paymeniS under the Note.
(D) "Trustee" is
G. !OMMY BAStiAN
Trustee's addred in Section 5) for:
(i) damage to, or
destruction of, lba Property; (ii) condemnation or other taking of all or any part of the Property; (iii) oonveyanee in
lieu of condemnation; or (iv) misrepre
Preview
Cause No. 141-256210-11 ~ {_ In the Interest of: Rodney L Wagner and all assets thereof. C'J -:- z:~~::· --. .. - Rodney L Wagner § 2643 Coastline Drive, § Grand Prairie, Texas 75054 § ,- . ,~--"' ' § 3~ t~- '"c.:> '-·-" § ~-;·, G\ § -· Affiant/Petitioner § IN THE DISTRICT COURT § § § HL_JUDICIAL DISTRICT -vs- § BANK OF AMERICANA and all successors, et al § CORPORATION, § BANK OF AMERICA HOME LOANS SERVICING LP § BAC HOME LOAN SERVICING, § COUNTRYWIDE BANK FSB, § MORTGAGE ELECTRONIC REGISTRATION § SYSTEMS INC., § BARRETI DAFFIN FRAPPIER TURNER & ENGEL § LLP & TOMMY BASTIAN, § FEDERAL NATIONAL MORTGAGE ASSOCIATION § AKA/FANNIE MAE § Respondents § TARRANT COUNTY, TEXAS VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND COMPLAINT FOR VIOLATION OF TERMS AND BREACH OF CONTRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST SUPPORTED BY AFFIDAVIT TO THIS HONORABLE COURT In the above reference cause, Affiant affirms that the defendants did willfully breach the original terms of the Deed of Trust and Note. (Instrument Number D208000451) Evidence will show that while Affiant did attempt to get clarity and understanding as to how the "Lender" BANK OF AMERICA N.A. and all successors, ET AL came to anything other than a third party debt VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND COMPLAINT FOR VIOLATION OF TERMS AND BREACH OF CONTRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST SUPPORTED BY AFFIDAVIT Page 1 of 19 collector without any rights to collect on a debt that had already been satisfied and should have been reconveyed to the Affiant, COUNTRYWIDE FSB /BANK OF AMERICA N.A. ET AL did hire its Servicing Agent, Mortgage Electronic Registration Services (MERS), Master Servicer, to collect a debt that ithad purchased from Countrywide Bank, FSB (no longer in existence) which according to the terms of the Deed of Trust was no longer enforceable as a debt because the altered copy of the original Note shows that the debt had been paid. (Exhibit 1) While Affiant did attempt to communicate and gain any valid proof of entitlement on the part of respondents to collect a debt, a Qualified Written Request (for proof of standing) (Exhibit 2), the Request for Validation of the Debt, and the Notice of Lender Default and Opportunity to Cure were sent with expiration dates as to when the lender needed to respond. Per RESPA (Real Estate Settlement Procedures Act) guidelines, the only response that was given by BANK OF AMERICA N.A. ET AL was to give copies of "a note". The specific language asked for the "Original wet ink signature" for Affiant's review. RESPA allows lenders to respond to a Qualified Written Request (QWR) within twenty-one (21) days. The Lender did not respond to the request within the 21 day timeline. While the "lender" sent copies of some of the requested information, because the "lender" is nothing more than a third party debt collector, who as such is subject to the Deceptive Trade Practices Act, the lender could not prove that they are the note holder in due course. No such proof was forth coming despite request. RESP A also allows the lender sixty (60) days to "cure" the offense. That date would have been November 22, 2011. All other attempts (as mentioned above) fell on deaf ears. On September 30, 2011 BANK OF AMERICA N.A. ET AL sent mail correspondence stating they were working on this Affiants request. (Exhibit 3) On October 27, this Affiant filed a lawsuit requesting my mortgage questions be answered. BANK OF AMERICA N.A. ET AL sent a response by mail dated VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND COMPLAINT FOR VIOLATION OF TERMS AND BREACH OF CO'HRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST SUPPORTED BY AFFIDAVIT Page 2 of 19 October 26th, one day before Affiant's lawsuit filed. (Affiant received this mail actually on 10/27/2011). That letter stated BANK OF AMERICA N.A. ET AL was working to get requested documents. (Exhibit 4) This response was clearly outside of the window of opportunity to cure as set forth by RESP A. This Affiant suspected that the September 30, 2011 letter was used as a stalling tactics to further hide the paper trail of frauds already perpetrated. The Lender was put on notice that non response was agreement that no debt was owed and Affiant was entitled to have the property reconveyed and all payments returned because the debt was not owed. The only response from BANK OF AMERICA N.A. ET AL was foreclosure papers stating that Affiants home would be sold the first Tuesday of November 1, 2011. Affiant's home was actually foreclosed on as stated by BANK OF AMERICA N.A. ET AL. Once again the Affiants home was traded as a securities instrument (D208000451) to FEDERAL NATIONAL MORTGAGE AIK/A FANNIE MAE AND ALL SUCCESSORS ET AL. It is this Affiants intent to prove that this non-judicial foreclosure was initiated to cover up the numerous frauds and hide the trail of paperwork fraudulently obtained by the so-called lender, BANK OF AMERICA N.A. ET AL As to the claim of violation of terms and breach of contract, the copy of the Note (in evidence) will show that while Affiant did sign a similar instrument December 28, 2007 there were no stamps (as shown on the copy in evidence) showing "Pay to the Order of without recourse COUNTRYWIDE, BANK FSB". The copy of the Note was signed by a Senior Vice President Laurie Mecer. (Exhibit 5) Per the Deed of Trust, paragraph 19, once "Release. Upon payment of all sums secured by this Security Instrument, Lender shall release this Security Instrument with charge to Borrower. Borrower shall pay any recordation costs." Yet when the Deed of Trust had VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND COMPLAINT FOR VIOLATION OF TERMS AND BREACH OF CONTRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST SUPPORTED BY AFFIDAVIT Page 3 of 19 been sold yet again to the Third Party Debt Collector, BANK OF AMERICA N.A. ET AL, the Note had been bundled as part of a Security and traded on and the Deed of Trust (instrument number D208000451) was stillnot reconveyed to the Affiant/Borrower as per the terms of the Contract. Because BANK OF AMERICA N.A. ET AL and its' servicer MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC. (both third party debt collectors) have never been able to show the wet ink signature stating that they are in fact the holder in due course of the Note, they must accept their position as a third party debt collector and fall under the authority of the Deceptive Trade Practices Act that says that a debt collector must show the wet ink signature proving they are entitled to collect a debt. Additionally, the "loan" was never received by the Affiant. The verbiage in the deed of trust says in Paragraph 19, As to Mortgage Electronic Registration Services (MERS), several courts have found that MERS may not, as an entity with no interest that has never loaned money, has no standing to assign back to a lender for the purpose of receiving unfair gain, it's "alleged" interest in a property. In the Houston, Texas decision, NANCY GROVES vs. MERS, the District Court and an Appellate Court held that MERS has no authority to convey an interest that was never granted. The assignment of the deed of trust in invalid, and of no force and effect, for the reasons set forth above including, inter alia, the fact the MERS did not have standing or the legal authority to assign the deed of trust which purportedly secured the note, and which served as the basis for a claim to have the right to be a party to the non judicial foreclosure and sale of the home of the Affiant. Thus the assignment of the deed of trust was at all times void. Affiant is entitled to an order that the Assignment of Deed of Trust is void ab initio and cancelling such Assignment. VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND COMPLAINT FOR VIOLATION OF TERMS AND BREACH OF CONTRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST SUPPORTED BV AFFIDAVIT Page 4 of 19 COMES NOW HERE the living, breathing man, known as: Rodney-Lee: Wagner, who is unschooled in law, makes this special visitation and Notices the conrt to take Judicial Notice of the enunciation of the principles stated in Haines v Kerner, 404 U.S. 519, wherein the court directed that those who are unschooled in law making complaints/pleading shall have the court look to the substance of the complaint rather than the form. Let this be in and for the record. I, Rodney-Lee: Wagner, hereinafter Affiant, hereby am writing this appeal in form of affidavit to officially advert, point for point, the Original Petition For Forcible Entry Detainer/Writ of Possession, and to present a counter claim herein now on and for the record. Good cause for these actions are set forth within this affidavit and incorporated herein by reference. Affiant will show by supporting competent evidence that; it has come to the Affiants attention that the bank never did lend the Affiant any funds from said banks personal funds or depositors accounts. Affiant agreed to receive a loan, not to be a depositor and have the bank receive the deposit for free. Also, the bank had no right to sell the mortgage note and or deed of trust for two reasons. The mortgage note and or deed of trust was deposited, and or sold as a security or other negotiable instrument and the money was received, withdrawn and or accrued without authorization by using a forged signature, and or pay to the order stamps etc., and two, the contract was never truly fulfilled. The bank acted without authorization and is involved in a fraud thereby damaging the alleged borrower aka Affiant. On the grounds of breach of contract, false representation, and fraud in the inducement, your presentment was void of necessary signatures to establish a contract. 15 U.S.C. § 1692 (e) states that a "false, deceptive, and misleading representation, in connection with the collection of any VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND COMPLAINT FOR VIOLATION OF TERMS Al'iD BREACH OF CONTRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST SUPPORTED BY AFFIDAVIT Page 5 of19 debt," this includes the false representation of the character or legal status of any debt, and further makes it a threat to take any action that cannot legally be taken. And furthermore any action that derives or is created from any original contract i.e. the forcible entry of detainer or any foreclosure actions thereof from any Loan#, Deed of Trust, and or Mortgage Note, Case, Cause, petition Et. A!, applicable actions created against Affiant is null and void until said dispute is settled with the original contract. Until then, there are no genuine material issues of fact in dispute to and that according to the law; the Respondent is not entitled to the relief prayed for in its Complaint. The bank advertised it would loan money, which is backed by legal tender. Is not that what the symbol $ means? Is that not what the contract said? Do you not know there is no agreement or contract in the absence of mutual consent? The bank may say that they issued a check to seller on behalf of the alleged borrower for the loan in question and now they owe the bank money. However, that is totally false and this information shows you that the check came from the money the alleged borrower provided, via a signed mortgage note and or deed of trust, and the bank never loaned any money from other depositors. In this affidavit, Affiant will show the law and the bank's own literature to prove Affiants case. All the bank did was trick the Affiant into a one sided contract which did not disclose all terms and procedures of the note. They got the mortgage note and or deed of trust without investing one cent, by making Affiant a depositor and not a borrower. The key to the puzzle is, the bank did not sign the contract. If they did then they must loan the money (Fiat). The bank did not sign the note, they deposited the mortgage note and or deed of trust in a checking account and used it to issue a check without ever loaning Affiant money or the bank investing one cent; the VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND COMPLAINT FOR VIOLATION OF TERMS AND BREACH OF CONTRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST SUPPORTED BY AFFIOA YIT Page 6 of19 Affiant provided the legal tender. The bank had no intent to loan, making it promissory fraud, mail fraud, wire fraud, and a list of other crimes a mile long. The bank deposited the mortgage note and or deed of trust in a checking account. The deposit then became the bank's property. Then, they withdrew the money without a signature, and called the money, the banks money that they loaned out. If the bank deposits a mortgage note and or deed of trust, then the bank must credit the account of the signatory claiming the bank owes said signatory for the amount of said mortgage note and or deed of trust deposited. The bank received government bonds, cash or an accrued entry by selling the mortgage note and or deed of trust and without having to give up any investment. Anytime the bank receives a deposit, the bank owes the depositor the money. On these grounds Affiant does not owe the bank the money. How can they make a felony, legal? They cannot! Fraud is fraud is fraud is fraud! Our Nation, along with every State of the Union, entered into Bankruptcy, in 1933. This changes the law from "gold and silver" legal money and "common law", to the law of bankruptcy. Under Bankruptcy law the mortgage note and or deed of trust acts like money. Once the mortgage note and or deed of trust are signed it acts like money. Damages exist in that the bank refuses to loan their money. The bank denied the alleged borrower equal protection under the law and contract, by merely exchanging one currency for another and refusing repayment in the same type of currency deposited. The bank refused to fulfill the contract by not loaning the money, and by the bank refusing to be repaid in the same currency, which they deposited as an exchange for another currency. A debt tender offered and refused is a debt paid to the extent of the offer. The bank has no authorization to alter the alleged contract and to refuse to perform by not loaning money, by changing the currency and then refusing repayment in what the bank has a written policy to VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICAT!ON FOR WRIT OF POSSESSION AND COMPLAINT FOR VIOLATION OF TERMS A:>ID BREACH OF CO:>ITRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST SUPPORTED BY AFFIDA V!T Page 7 of 19 deposit. In the transaction the bank was to loan legal tender to the borrower, in order for the bank to secure a lien. The bank never made the loan, but kept the mortgage note and or deed of trust the alleged borrower signed. This allowed the bank to obtain the equity in the property (by a lien) and transfer the wealth of the property to the bank without the bank's investment, loan, or risk of money. Then the bank receives the alleged borrower's labor to pay principal and Usury interest. PLEASE TAKE NOTICE: Please be advised that this affidavit stands as the truth, until successfully rebutted. Respondent(s) must respond or rebut the Affiants statement, with their own statement, point for point, sworn under penalties of perjury. Under the Jaw, silence is acquiescence. That means if I send you a complaint; explain what Jaws you have broken, and swear an affidavit of the facts, then you MUST answer. If you fail to answer my charges; if you fail to rebut my affidavit on a point for point basis, then by your silence you acquiesce. In effect, by your silence, you agree with my position under the law! Pursuant to 15 U.S.C. § 1692 (g) (4) Validation of Debts, if you have evidence to validate your counterclaim/claim that this presentment does not constitute fraudulent misrepresentation and that one owes this alleged debt, this is a demand that, you provide such validation and supporting evidence to substantiate your counterclaim/claim. Until the requirements of the Fair Debt Collection Practices Act have been met and your claim is validated, you have no jurisdiction to continue any collection activities. SUMMARY OF DAMAGES DUE TO PETITIONER ACCOUNTING AND TRUE BILL Affiant is entitled to return of all funds paid by RODNEY LEE WAGNER from December 2006 where Affiant paid monthly payments plus all late fees and interest fraudulently charged in VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND COMPLAfNT FOR VIOLATION OF TERMS AND BREACH OF CONTRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST SUPPORTED BY AFFIDAVIT Page 8 of19 connection with the so called loan in connection with Deed of Trust having the Instrument number D208000451. Damages will be computed as follows, For Conversion 4 times for Compensatory Damages, and 200 times for Punitive Damages. See Notice: LEOPATRA HASLIP eta!. v. PACIFIC MUTUAL LIFE INSURANCE, INC. 499 U.S.!, 113 Fed 2d I, Ill S. Ct. 1032 (no. 89-1279) "Affiant reserves the right to amend and correct and adjust the accounting and True Bill" The progressive Sum Certain in US Dollars is in numerical parity with the Euro Dollar and any other superior currency backed by gold. Sum Certain June also be paid in any numerical value in gold and equal value in real property and natural resources, and any agreeable combination of the above. SURETY The surety/property utilized to guarantee the payment of this commercial lien IS the operational/commercial bonds and or Insurance policy of each of the Lien Debtors. If the bond(s) of the Lien Debtors is/are insufficient for coverage, the payment(s) the assets of the Lien Debtor(s) will be utilized as follows: all the real and moveable property and bank and savings accounts of the Lien Debtors except wedding rings, keepsakes, family photographs, diaries, journals, etc., and the property normally exempted in the lien process (includes survival provisions). PUBLIC HAZARD BONDING OF CORPORATE AGENTS: All officials are required by federal, state, and municipal law to provide the name, address and telephone number of their public hazard and malpractice bonding company and the policy number of the bond and, if required, a copy of the policy describing the bonding coverage of their specific job performance or Corporation. Failure to provide this information constitutes corporate and limited liability insurance fraud (15 USC) and is prim-a-facie evidence and grounds to impose a lien upon the official personally to secure their public oath and or service of office. VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND COMPLAINT FOR VIOLATION m· TERMS AND BREACH OF CONTRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST SUPPORTED BY AFFIDAVIT Page 9 of 19 CASE LAW The following material is case law on the subject and other related legal issues. "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, II 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 LED637. "The doctrine of ultra vires is a most powerful weapon to keep private corporations 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'! Bank of Union, 133 SC 202, 130 SE 759(1926). "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). VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND COMPLAINT FOR VIOLATION OF TERMS AND BREACH OF CONTRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST SUPPORTED BY AFFIDAVIT Page 10 of 19 "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'! 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. "The word 'money' in its usual and ordinary acceptation means gold, silver, or paper money used as a circulating medium of exchange ... " Lane v. Railey 280 Ky 319, 133 SW 2d 75. "A bank is not the holder in due course upon merely crediting the depositors account." Bankers Trust v. Nagler, 229 NYS 2d 142, 143. "A check is merely an order on a bank to pay money." Young v. Hembree, 73 P2d 393. "Any false representation of material facts made with knowledge of falsity and with intent that it shall be acted on by another in entering into contract, and which is so acted upon, constitutes 'fraud,' and entitles party deceived to avoid contract or recover damages." Barnsdall Refining Com. v. Bimam Wood Oil Co .. 92 F 26 817. "Any conduct capable of being turned into a statement of fact is representation. There is no distinction between misrepresentations effected by words and misrepresentations effected by other acts." Leonard v. Springer 197 Ill532. 64 NE 301. "If any part of tl1e consideration for a promise be illegal, or if there are several considerations for an unseverable promise one of which is illegal, the promise, whether written or oral, is wholly void, as itis impossible to say what part or which one of the considerations induced the promise." Menominee River Co. v. Augustus Spies L & C Co., 147 Wis 559. 572; 132 NW 1122. "The contract is void if itis only in part connected with the illegal transaction and the promise single or entire." Guardian Agency v. Guardian Mut. Savings Bank, 227 Wis 550, 279 NW 83. "It is not necessary for rescission of a contract that the party making the misrepresentation should have known that it was false, but recovery is allowed even though VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND COMPLAINT FOR VIOLATION OF TERMS AND BREACH OF CONTRACI', TO ASSIGN ITS INTEREST IN DEED OF TRUST SUPPORTED BY AFFIDAVIT Page 11 of 19 misrepresentation is innocently made, because itwould be unjust to allow one who made false representations, even innocently, to retain the fruits of a bargain induced by such representations." Whipp v. Iverson, 43 Wis 2d 166. OTHER MAXIMS, POINTS AND AUTHORITIES !.Title 31 Subtitle III Chapter 38 (3802): Any person who makes, presents, or submits, or causes to be made, presented, or submitted, a claim that the person knows or has reason to know- omits a material fact; is false, fictitious, or fraudulent as a result of such omission. 2."A judgment rendered in violation of due process is void." World Wide Volkswagon v. Woodsen, 444 U.S. 286, 291; National Bank v. Wiley, 195 US 257; Pennoyer v. Neff, 95 us 714. 3. " ...the requirements of due process must be met before the court can properly assert in personam jurisdiction." Wells Fargo v. Wells Fargo, 556 F2d 406, 416. 4. Notification of legal responsibility is "the first essential of due process of law." Connally v. General Construction Co., 269 US 385,391. 5. fault: Blacl<'s Law Dictionary, 4 1h ed., page 738 "American Law- Negligence; a error or defect of judgment or conduct; any deviation from prudence, duty, or rectitude; any shortcoming, or neglect of care or performance resulting from inattention, incapacity, or perversity; a wrong tendency, course, or act; bad faith or mismanagement; neglect of duty." 6. Default: Black's Law Dictionary, 41h ed., page 505. "by its derivation, a failure. An omission of that which ought to be done. Specifically, the omission or failure to perform a legal duty. The term also embraces the idea of dishonest, and of wrongful act." 7. Grant: Black's Law Dictionary, 2"rt edition page .547 "a generic term applicable to all transfers of real property. Wash. b Real Prop 181,353 8. Grantee:Black's Law Dictionary 2"d edition "the one by whom a grant is made." 9. Grantor :Black's Law Dictionary 2"d edition the person to whom a grant is made" The following questions are required to be answered by Petitioner(s) as officially requested by Affiant within this Affidavit of Truth. I. Did the bank loan gold or silver to the alleged borrower? 2. Did the bank loan credit to the alleged borrower? VERIFIED AMENDED PLMili'IG AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND COMPLAINT FOR VIOLA TIO'I OF TERMS AND BREACH OF CONTRACT, TO ASSIGN ITS INTEREST IN DEED OF TRUST SUPPORTED BY AFFIDAVIT Page 12 of 19 3. Did the borrower sign any agreement with the bank, which prevents the borrower from repaying the bank in credit? 4. Is it true that your bank creates checkbook money when the bank grants loans, simply by adding deposit dollars to accounts on the bank's books, in exchange, for the borrower's mortgage note and or deed of trust? 5. Has your bank, at any time, used the borrower's mortgage note and or deed of trust, "promise to pay", as a deposit on the bank's books from which to issue bank checks to the borrower? 6. At the time of the loan to the alleged borrower, was there one dollar of Federal Reserve Notes in the bank's possession for every dollar owed in Savings Accounts, Certificates of Deposits and Checking Accounts (Demand Deposit Accounts) for every dollar of the loan? 7. According to the bank's policy, is a promise to pay money the equivalent of money? 8. Does the bank have a policy to prevent the borrower from discharging the mortgage note and or deed of trust in "like kind funds" which the bank deposited from which to issue the check? 9. Does the bank have a policy of violating the Deceptive Trade Practices Act? 10. When the bank loan officer talks to the borrower, does the bank inform the borrower that the bank uses the borrowers mortgage note and or deed of trust to create the very money the bank loans out to the borrower? 11. Does the bank have a policy to ledger the same money in two separate places at the exact same time ? 12. Does the bank claim to loan out money or credit from savings and certificates of deposits while never reducing the amount of money or credit from savings accounts or certificates of deposits, which customers can withdraw from? VERIFIED AMENDED PLEAD!r\G AND VERIFIED NOTICE OF APPLICATION FOR WRIT OF POSSESSION AND COMPLAINT FOR VIOLA TIOC< OF TERMS AND BREACH OF CONTRACT, TO ASSIGN ITS INTEREST TN DEED OF TRUST SUPPORTED BY AFFIDAVIT Page 13 of 19 13. Using the banking practice in place at the time the loan was made, is it theoretically possible for the bank to have loaned out a percentage of the banks Savings Accounts and Certificates of Deposits recorded on their books? 14. Ifthe answer is "no" to question #13. explain why the answer is no. 15. In regards to question #13, at the time the loan was made, were there enough Federal Reserve Notes on hand at the bank to match the figures represented by every Savings Account and Certificate of Deposit and Checking Account (Demand Deposit Account)? 16. Is the bank required to follow and adhere, or simply obey the laws concerning, Commercial Paper; Commercial Transactions, Commercial Instruments, and Negotiable Instruments? 17. Did the bank lend the borrower the bank's assets, or the bank's liabilities? 18. What is the complete name of the banking entity, which employs you, and in what Jurisdiction is the bank chartered of record? 19. What is the bank's definition of"Loan Credit"? 20. Did the bank use the borrowers assumed mortgage note and or deed of trust to create new bank money, which did not exist before the assumed mortgage note and or deed of trust was signed? 21. Did the bank take money from any Demand Deposit Account (DDA), Savings Account (SA), or a Certificate of Deposit (CD), or any combination of any DDA, SA or CD, and loan this money to the borrower? 22. Did the bank replace the money or credit, which it loaned to the borrower with the borrower's assumed mortgage note and or deed of trust? 23. Did the bank take a bank asset called money, or the credit used as collateral for VERIFIED AMENDED PLEADING AND VERIFIED NOTICE OF APPLICATION •'OR WRIT OF POSSESSION AND COMPLAINT FOR VIOLATION OF TEIUIS AND BREACH OF CONTRACT. TO ASSIGN ITS INTEREST IN DEED OF TRUST SUPPORTED BY AFFIDAVIT Page 14 of 19 customers' bank deposits, to loan this money to the borrower, and/or did the bank use the borrower's note to replace the asset it loaned to the borrower? 24. Did the money or credit, which the bank claims to have loaned to the borrower, come from deposits of money or credit made by the bank's customers, excluding the borrower's assumed mmigage note and or deed of trust? 25. Considering the balance sheet entries of the bank's loan of money or credit to the Borrower, did the bank directly decrease the customer deposit accounts i.e. Deposit Demand Account, Savings Account, and Certificate of Deposit for the amount of the Loan in question? 26. Describe the bookkeeping entries referred to in question #13. 27. Did the bank's bookkeeping entries to record the loan and the borrower's assumed Mortgage note and or deed of trust ever, at any time, directly decrease the amount of money or credit !rom any specific bank customer's deposit account?. 28. Does the bank have a policy or practice to work in cooperation with other banks financial institutions use borrower's mortgage note and or deed of trust as collateral to create an offsetting amount of new bank money or credit or checkbook money or Demand Deposit Account generally to equal the amount of the alleged loan? 29. Regarding the borrowers assumed mortgage loan, give the name of the account which was debited to record the mortgage. 30. Regarding the bookkeeping entries, state the name and purpose of the account which was created. 31. When the borrower's assumed mortgage note and or deed of trust was debited as a bookkeeping entry, was the offsetting entry a credit account? 32. Regarding the initial bookkeeping entry to record the borrower's assumed Mortgage note and or deed of trust and the assumed loan to the borrower, was the bookkeeping entry credited for the money loaned to the borrower, and was this Credit offset by a debit to record the borrower's assumed mortgage note and or VERIFIED AMENDED PLEADI'IG Ar • ., i • • DOC ID #: 00018769990612007 (C) "Lender" is Countrywide Bank, FSB. Lenderis a I!'EDSVGS BANK org~~nized and existing under the Jaws of THE UNITED STA!ES . Lender's address is 1199 North FairfaK St. Ste.500, Alexandria, VA 22314 Lender includes any holder of the Note who is entitled to receive paymeniS under the Note. (D) "Trustee" is G. !OMMY BAStiAN Trustee's addred in Section 5) for: (i) damage to, or destruction of, lba Property; (ii) condemnation or other taking of all or any part of the Property; (iii) oonveyanee in lieu of condemnation; or (iv) misrepre