You are on page 1of 3

Jean Keating, talkshoe, 12/2/10 on Angela Stark's My private Audio

1of3
Courts have dual jurisdiction, one commercial, one private. If you contract with them, youre under their jurisdiction. By
making a special appearance, you avoid contracting. Read UCC 3-501 and 502. It tells you how to do a conditional
acceptance upon proof of claim. Most of these people are making presentments on behalf of someone else, you have to
challenge their right to do so. (See Banks requirements re foreclosure in files, and all things considered, also banking
and foreclosures.doc which is a Christopher Story doc, and [CONSIDERATION.DOC, The inducement, price or motive
that causes a party to enter into an agreement or contract.]
They are legal, which are sufficient to support the contract or illegal, which render it void. If the performance be
utterly impossible (REPAYING money they did not lend you!), in fact or in law, the consideration is void.)
382-A:3-501 Presentment. (a) "Presentment'' means a demand made by or on behalf of a person entitled to enforce an
instrument (2) Upon demand of the person to whom presentment is made, the person making presentment must (i) exhibit
the instrument, (ii) give reasonable identification and, if presentment is made on behalf of another person, reasonable
evidence of authority to do so
The mortgage loan was a presentment on behalf of someone else. They dont have the authority to do that, but you need to
challenge that. This should be handled at the administrative level, you should not have to go to court.
In non-judicial states, they cant foreclose because the mortgage has a confessed judgment. Read the Power of Sale
clause in your mortgage. In California under 1131 thru 1134 of the CA Civil Code you cannot do a confessed judgment
on a mortgage loan unless the borrower has consented to it. Which means youre not dealing with a mort loan, but
with an investment contract. Theyre holding you liable for a contract to which you are not a party; the pooling and
servicing agreement. The statute of frauds, (Sec 1624 of the Cal Civil Code, UCC 2-201), was designed to prevent this.
The statute of frauds is evidentiary, so if you dont raise it, you waive it. The debtor has to file an oath and an order with the
court, certified by an attorney. A confessed judgment clause doesnt cut it. Secondly, the landmark decision on that is the
Seacrest case. When you go to closing, they are doing a loan modification, because they made you party to a contract you
are not a party to. You become a third-party contractee to the pooling and servicing agreement. The proof is, thats where
your mort payments are going; to the investors as a cash flow claim. The servicer merely passes the payments to the
investor.
Also, study securities. Youre dealing with a security, not a negotiable instrument.
See http://www.investopedia.com/terms/n/nonnegotiable.asp
What Does Non-Negotiable Mean?
1. A term relating to the price of a good or security which is firmly established and cannot be adjusted.
The so-called promissory note is a security, because it has a maturity of more than nine months. USC Title 18 Sec 78 (c)
garbled (Sec 78 is not included at the US Gov site, did he mean Title 15?) it says any note that has a term of less than nine
months is excluded as a security.
Also, theres a disclaimer thats supposed to be in the credit application under 16 CFR 433.2 the seller takes it subject to
all the defenses and claims that the buyer could assert against any transferee or any buyer or seller. But they remove
the disclaimer. That means theres no holder in due course. See UCC 3-302, holder in due course takes the instrument
free of all claims and defenses that the payer could assert against any payee, assignee, or transferee. They dont take it free
of that, they take it subject to your claims and defenses. 16 CFR 433.2 Preservation of consumers claims and defenses,
unfair or deceptive acts or practices. In connection with any sale or lease of goods or services to consumers, in or
affecting commerce as commerce is defined in the Federal Trade Commission Act, it is an unfair or deceptive act or
practice within the meaning of section 5 of that Act for a seller, directly or indirectly, to:
(a) Take or receive a consumer credit contract which fails to contain the following provision in at least ten point, bold
face, type:
NOTICE
ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES
WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED
PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL
NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.
or,
(b) Accept, as full or partial payment for such sale or lease, the proceeds of any purchase money loan (as purchase
money loan is defined herein), unless any consumer credit contract made in connection with such purchase money
loan contains the following provision in at least ten point, bold face, type:
NOTICE
ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES
WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED
WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS
PAID BY THE DEBTOR HEREUNDER.
2of3

What are your claims and defenses?


under UCC 3-305 you have a claim in recoupment, which is a counter-claim, and thats in Rule 13 of the Fed rules of
civil procedure. There are two types of counter-claims, a mandatory counter-claim is a claim that arises from the
same transaction and occurrence as the plaintiffs claim. They run over you if you dont file a counter-claim. You
cant be a creditor if you dont file a counter-claim. Thats under UCC 3-305. Your second defense is 3-306, which
says you have a proprietary, possessory, and property interest in the note and its proceeds, and you have the right
to rescind negotiation of the transaction. Negotiation means the endorsement of the note, where they endorsed it,
pay to the order of. When youre dealing with securities, they are governed by Article 8, not Article 3, because
what they call the note is a security, and its a non-negotiable instrument. If the note has an ARM rider, the
conditions of payment are modified, and it says it supplements and governs the promissory note. According to
UCC 3-106D, it cant be a negotiable instrument if its governed by documents outside the promissory note. And
they make it subject to the ARM rider and the mortgage note. I have a dozen cases that say all mortgage notes are
non-negotiable instruments. As such theyre governed by general contract law, not by Article 3 of the UCC,
specifically, Restatement of the Law, 2nd series, under contracts, section 164, which has to do with misrepresentation, which means its subject to rescission.
http://law.scu.edu/FacWebPage/Neustadter/contractsebook/main/Restatement/index.html TILA, or Regulation Z,
at 226.23, Federal Code of Electronic Regulations, in Appendix H there is a form for rescission, forms h-8 and h-9.
The lender has to tell you of your right to rescind and give you the form as well. Did they? It says it doesnt apply
to residential mortgage loans, but Section H says that at foreclosure you have the right to rescind the loan
transaction if two events occurred, a) there was no broker fee charged, and b) and you werent given notice of the
right to rescind or the appropriate form. The statute of limitations does not begin to toll until they comply with
those requirements.
Also, youre not in a loan transaction, youre in an investment contract. UCC 4-102, Applicability, says if an article is
includable in Article 3, its governed by Article 8. So you have a claim in recoupment, or a claim under 3-306 to
the proceeds, a right to rescind the negotiation, and a possessory and property right in the proceeds of the
investment contract, but you have to file a claim. If you read UCC 8-505 thru 8-508, it tells you how to file a claim,
termed an adverse claim. No one files claims, which is why in foreclosure, the bank files a 1099A, saying that
you abandoned your claim and you possessory right to the proceeds from the sale of the security under the
investment contract to which you are an undisclosed third party.
None of these courts have subject matter jurisdiction over land. (Wouldnt this all apply only in judicial foreclosure
states?) County courts have jurisdiction over land. What happens is you go into court and you contract with people
who dont have subject matter jurisdiction. The attorneys dont have jurisdiction (sic) to represent anybody. The
Dead Man statutes, under probate law, codified under Rule 601 of the Federal Rules of Evidence, regarding
competency to testify; theyre incompetent to testify of behalf of a dead person/corporation. The first thing I do is
raise an objection. I am before this court by special appearance, without waiving any rights, remedies, or
defenses, statutory or procedural. I put that at the top of my pleadings, so as to not waive jurisdiction. Otherwise
youve contracted with them, so even tho they didnt have subject matter jurisdiction, you gave that to them. You
have to raise the issue of subject matter and in personam. For the court to have jurisdiction, the plaintiff has to be
there, and the defendant. Real parties in interest, with standing, have to be there. Under Article 3 section 2,
standing is a threshold issue. None of the servicing companies have standing to come into court and foreclose on
your loan, because they dont own the loan. Who owns the security? The borrower does. An employee of
Countrywide testified that none of the notes are transferred. That means the REMIC doesnt have the note. April
Charney says they never transfer them, nor do they sell themthey keep them. The reason they keep them is that
they dont own them. So they cant transfer them. Besides which, the power of attorney does not give the holder
the power to transfer the power of attorney. They have to transfer them to get the tax REMICs tax exemption,
otherwise they have to pay taxes. They have to pay out 90% of their income in interest and dividends to the
investors, otherwise they have a tax liability, and they dont qualify under Section 862 and 852 of Title 26 as a
REMIC. So they are in possession of contraband. What theyre doing is billing you for the tax that they owe.
Thats why every mortgage is a tax issue and an investment contract. The tax comes into play because they never
transferred the security. That means all the investors who bought these cash flow claims under the pooling and
servicing agreement have worthless paper, which puts a cloud on every title and none of these notes were ever
securitized. That means every B5 prospectus, S3 Registration Statement, and 8K current report is invalid [and
fraudulent?]. They are filed with the SEC. The securities were never transferred at closing. The investors put up all
this capital, and the banks are going to have to give it all back. They bought something they never got. Theres not
enough money in all the banks to pay them back.
In regard to 1099OIDs, most everyone who files them are NOT filing the form 8281 which identifies who the issuer
3of3

is, under Title 10 Sec 78(C)(a)(8), [I could not locate this cite] identifies you as the issuer, and because you didnt,
you dont have a claim. In IRS Publication 1212, page 2, says the 8281 must be filed with the OID. Also read up on
forms 8282 and 8283, Your deed of trust/mortgage, regarding payments, (usually section 3), tells you if theres any
money owed at maturity, you can pay it then. So how can the note be in default if your contract allows you to do
that? You need to read every word of your mortgage. Its an unconscionable contract because it has clogging
provisions in it, which extinguish your equity of redemption. How can you redeem your security if they sell it to
somebody else? Dont you always have the right to redeem a loan? Thats more proof its not a loan, its an
investment contract.
In 1951 they passed a law under Title 26, Section 2038 and Sec 2514, called the Power of Appointment Act. The
donor has total power. Every mortgage is a donor/donee relationship, which means its a Class 5 Gift and
Estate Tax under the 6209 decoding manual, The IRS Processing Manual of 2010, which tells you that all W2s, W-4s, 1040s, 1099s, 1096s, 1098s, are as well. They have nothing to do with an income tax. Everybody files
the 1040, but you dont report gift and estate taxes on 1040s. All Class 5 gift and estate taxes are done on a 706
form, or a 709. On a 706 is a generation-skipping tax. Read the instruction book. If you read publication 950, you
have a $3.5M unified tax credit on all estate taxes, which corporations use as money. They give the tax credits to
banks, which then lend money on those credits. You also have a $1M credit or exclusion on the gift side. Theres
a $348,000 exclusion built in to the form.
When you send your 1099A, you have to include a Form 56, appointing them fiduciary. We have the ability
to send a bill to the Federal Reserve and get money every year. We are all creditors to the US, so
we have our remedy if we learn to use it. We are all bankers under Title 31 of the USC.
Everything is an OID, because its a public debt instrument. When you get a bill, that represents the amount of your
credit that they are using. You have to file a tax return and assess the tax. Youre the only one who can assess it,
because its your credit theyre using. If you dont report it as income to the IRS, how can they give you a refund?