IN THE CIRCUIT COURT FOR THE COUNTY OF TALBOT, MARYLAND

JOHN E. DRISCOLL, III, et al *

Plaintiffs, *

v. * Civil Action No. 20-C-12-007978

ELIZABETH M. JACOBSON *

Defendant *

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

DEFENDANT’S MOTION TO STAY AND/OR DISMISS FORECLOSURE PROCEEDING (PURSUANT TO RULE 14-211) PENDING DETERMINATION OF

SHOW CAUSE HEARING (PURSUANT TO MARYLAND RULE 14-207.1)

Defendant, Elizabeth M. Jacobson, proceeding pro se, files this Motion in the above matter to

move this Court, pursuant to Maryland Rule 14-211, to stay and/or dismiss the foreclosure

proceedings; and to request this Court, pursuant to Maryland Rule 14-207.1, to Order a Show

Cause Hearing. In support of this Motion, Defendant states:

1. This is an action for foreclosure filed by Plaintiffs upon Defendant’s property located

at 6473 Fairway Lane, Easton, MD 21601.

2. There are no other legal actions involving this property.

3. Lawyer-Plaintiffs commenced this action on June 1, 2012, by the filing of an Order to

Docket or Complaint to Foreclose a first-lien mortgage loan on Defendant’s

residence.

4. Defendant was served with the Order to Docket at her home via posting of the

document at the subject property on or about June 11, 2012.

5. This motion is filed within 15 days after the date the Order to Docket was served on

Defendant.

6. The Notice of Intent to Foreclose (NOI) dated November 16, 2011, and contained in

the subject Order to Docket clearly states that the name of the Secured Party is

Wells Fargo Bank, N.A. The telephone number listed for the secured party is 1-

866-599-5505. When Defendant dialed said telephone number to confirm, a

recorded message activated, and recited directions that the caller should call his or

her mortgage servicer. The recorded message was generic and did not state the

name of any party at all, much less the secured party. Upon reviewing several NOIs

issued to Defendant by Wells Fargo, Defendant notes that Wells Fargo uses the

same telephone number, 866-599-5505, as the secured party for multiple parties,

each listed as a ‘secured party’1. Defendant refers this Court to the requirements of

Real Property § 7-105.1(c) which are abundantly clear in requiring that the name

and telephone number of the secured party must be stated on the Notice of Intent to

Foreclose. At the very least, it is disingenuous for Wells Fargo to list, multiple

times in multiple documents, a contrived telephone number allegedly connecting to

a ‘secured party’; at best, it constitutes “Mortgage Fraud” under Md. Real Property

Code Ann. § 7-401. 2

7. Joseph Charles Chatellier in his capacity as Vice President of Loan Documentation

1 Wells Fargo NOI dated 6/14/2012, lists telephone number 866-599-5505 for secured party US Bank National Association, as Trustee for Citigroup Mortgage Loan Trust 2007-WFHE3, Asset-Backed Pass-Through Certificates, Series 2007-WFHE3. Wells Fargo NOI dated 5/22/2012, lists telephone number 866-599-5505 for secured party LaSalle Bank N.A., Trustee Morgan Stanley Mortgage Loan Trust 2007-3XS. Wells Fargo NOI dated October 10, 2010, lists telephone number 866-599-5505 for secured party Wells Fargo.

2 Md. Real Property Code Ann. § 7-401 (d) “Mortgage fraud” means any action by a person made with the intent to defraud that involves: (2) “Knowingly creating or producing a document for use during the mortgage lending process with the intent that the misstatement, misrepresentation, or omission be relied on by a mortgage lender, borrower, or any party to the mortgage lending process”. The Mortgage lending process includes the servicing of the loan pursuant to § 7-401 (2) (i) .

has certified and affirmed in the Order to Docket filed by Plaintiffs that two

different entities, Wells Fargo and Freddie, both own the subject loan. Defendant

contends these are sufficient grounds to dismiss this foreclosure action.

8. Specifically, Mr. Chatellier certifies and affirms that he has personal knowledge upon

which he is swearing in the ‘Affidavit of Date and Nature of Default and Of

Mailing of Notice of Intent to Foreclose’; specifically, in the sixth paragraph of said

Affidavit that the contents of the aforementioned Notice of Intent to Foreclose were

accurate, i.e., that Wells Fargo is the secured party. Mr. Chatellier certifies and

affirms in paragraph 8 of this Affidavit that the name and telephone number of the

secured party (Wells Fargo and telephone number 1-866-599-5505) complied with

the requirements of Real Property § 7-105.1(c). Also noteworthy is that Mr.

Chatellier states in paragraph 2 that Wells Fargo is the servicer of this loan.

9. Mr. Chatellier also certifies in a separate document filed with the Order to Docket, the

‘Affidavit Certifying Ownership of Debt Instrument and Accuracy of Note

Submitted Herewith’, that ‘Federal Home Loan Mortgage Corporation is the of the

owner of the Note. . .’ The Court will note that Federal Home Loan Mortgage

Corporation is also known as Freddie Mac.

10. Mr. Chatellier further states in the ‘Affidavit Certifying Ownership of Debt

Instrument and Accuracy of Note Submitted Herewith’ that owner Freddie Mac has

‘authorized Wells Fargo Bank, N.A. to be the holder of the Note for purposes of

conducting this foreclosure action’. Yet, neither Mr. Chatellier nor the Substitute

Trustees provide any proof or documentation of that claimed authorization.

Assuming, arguendo, that some authorization did exist whereby Freddie Mac

authorized Wells Fargo ‘to be the holder of the Note’ so that it could foreclose,

neither the Note itself nor the Deed of Trust confer the right to be the ‘holder of the

Note’ upon an entity other than the payee.

11. To substantiate Defendant’s contention in #10 above, Defendant cites Freddie Mac’s

Document Custody Procedure Overview, December 2003, at page 25, which clearly

states, regarding its relationships with servicers: ‘Freddie Mac is the owner

(holder-in-due- course) of the property.’ (Emphasis added). Further, Defendant

reminds the Court that the Note itself, which Defendant executed, memorializes

Defendant’s position and knowledge about the agency arrangement regarding

Defendant’s mortgage Note as follows: ‘I understand that the Lender may transfer

this Note. The Lender or anyone who takes this Note by transfer and who is entitled

to receive payments under this Note is called the “Note Holder.’ Thus, Defendant

contends that in order for Wells Fargo to have the authority to foreclose pursuant to

the Defendant’s Note, Wells Fargo would have had to have beneficial interest in the

Note via the entitlement to receive the payments.

12. The Substitution of Trustee dated October 27, 2011, states that Wells Fargo Bank,

N.A. is the “Current Noteholder”. Kendall Hoskins as Vice President of Loan

Documentation executed the Substitution of Trustee on behalf of Wells Fargo as the

“Current Noteholder”. Defendant cites Covenant 24 of the subject Deed of Trust,

which governs the Substitution of Trustees as follows: ‘Lender, at is option, may

from time to time remove Trustee and appoint a successor trustee to any Trustee

appointed hereunder by an instrument recorded in the city or county in which this

Security Instrument is recorded. Without conveyance of the Property, the successor

trustee shall succeed to all the title, power and duties conferred upon Trustee

herein and by Applicable Law.’ Reviewing the Note, Defendant observes its

requirement that “The Lender or anyone who takes this Note by transfer AND who

is entitled to receive payments under this Note is called the “Note Holder”.

13. Defendant concludes that, in light of the details outlined in #12 above, Wells Fargo is

not the “Note Holder” but rather it is, exclusively, the servicer. Accordingly, Wells

Fargo has no authority to substitute the trustee and claimed substitute trustees, John

E. Driscoll, III, Robert E. Frazier, Laura D. Harris, Daniel J. Pesachowitz and

Deena L. Reynolds, and those individuals have no authority to have brought, and to

proceed with, this instant action.

14. To further confirm that Wells Fargo is exclusively the servicer, and not the owner nor

Not Holder of this mortgage loan, Allegra Nienart, Vice President Loan

Documentation for Wells Fargo Bank, N.A., executed the document titles “MD.

Code, Real Property, § 7-105.1(d)(2)(ii) and Rule 14-207(b)(2) Debt and Right to

Foreclose Affidavit” filed in the Order to Docket, certifying that she is “an

authorized agent on behalf of Wells Fargo Bank, NA, the servicer of the mortgage

loan. . .”

15. Also at issue with this Affidavit signed by Ms. Nienart is that it states that the

Principal is $401,587.21. As evidenced by the copy of the Note contained in the

subject Order to Docket, the principal amount is $396,750 -- $4,837.21 less the

claimed Principal amount in the Order to Docket. Ms Nienart claims in the

Affidavit that the interest is due from 5/01/2009, which cannot be possible as

Defendant has remitted payments within a HAMP Trial Payment Plan in 2010.

Defendant possesses documentation provided by Wells Fargo itself which

substantiates that Defendant remitted paid over $16,121.68 in mortgage payments

to Wells Fargo from May 1, 2009.

16. Plaintiffs’ own documents which it presents to Defendant and to this Court in its

Order to Docket filing reflect conflicting information as to the secured party of

Defendant’s Note. The Notice of Intent to Foreclose and the Substitution of

Trustee documents each claim that Wells Fargo is the secured party, while the

Affidavit Certifying Ownership of Debt Instrument document, and the Accuracy of

Note Submitted Herewith document, states that Freddie Mac “is the owner of the

Note”. Defendant reminds the Plaintiffs of the public pronouncements made by

Defendant’s Note owner Freddie Mac by Donald Bisenius, Executive Vice

President of Freddie Mac’s Single Family Credit Guarantee Business when

appearing on December 1, 2010, to the U.S. Senate Committee on Banking,

Housing and Urban Affairs: The role of servicers and Freddie Mac’s relationship

with those servicers is as follows: “Like most other mortgage investors, Freddie

Mac is not a servicer. Instead, we contract with either the mortgage originator or

another financial institution to service the mortgages we purchase. In general,

services collect loan payments from the borrowers and remit them to Freddie Mac

each month.” These words substantiate Defendant’s claim that Wells Fargo did not

receive payments, but rather, collected them for forwarding to payment receiver

Freddie Mac. Defendant recites, here again, the language contained in her executed

mortgage Note: “The Lender or anyone who takes this Note by transfer AND who

is entitled to receive payments under this Note is called the “Note Holder”.

17. Mr. Bisenius further stated on behalf of Freddie Mac in his December 1, 2010,

appearance that “Freddie Mac sets forth a comprehensive set of requirements for

servicers in our Seller/Servicer Guide (“the Guide”). The Guide provides detailed

instructions and guidelines for servicing both performing and non-performing

mortgages, including the compensation and incentives paid to servicers. Notably,

the Guide also requires servicers to fully comply with all applicable laws relating to

the mortgages they service.” Clearly, Wells Fargo as the servicer of the

Defendant’s loan cannot claim “Note Holder” status, claim it is the secured party,

nor has it the authority to substitute the trustees who, notably, are also the Attorney

Plaintiffs commencing this action unlawfully, and presenting to this Court

documents they filed with it that are false.

18. Defendant reminds Plaintiffs that Wells Fargo entered into a Consent Order with the

United States of America Department of the Treasury Comptroller of the Currency

(OCC), Case No. AA-EC-11-19 on April 13, 2011. While Defendant acknowledges

that this Court has no authority over said Consent Order, Defendant references this

Consent Order to illustrate Wells Fargo’s wanton disregard to observe the

requirements it signed its agreement to honor. Specifically, Wells Fargo agreed in

the Consent order to “processes to ensure that all factual assertions made in

pleadings, declarations, affidavits, or other sworn statements filed by or on behalf of

the Bank are accurate, complete, and reliable; and that affidavits and declarations

are based on personal knowledge or a review of the Bank’s books and records when

the affidavit or declaration so states”. Most important, Wells Fargo agreed to

“processes to ensure that the Bank has properly documented ownership of the

promissory note and mortgage (or deed of trust) under applicable state law, or is

otherwise a proper party to the action at all stages of foreclosure and bankruptcy

litigation, including appropriate transfer and delivery of endorsed notes and

assigned mortgages or deeds of trust at the formation of a residential mortgage-

backed security, and lawful and verifiable endorsement and successive assignment

of the note and mortgage or deed of trust to reflect all changes of ownership.”3

19. Judge Alan M. Wilner, Chair of the Standing Committee on Rules of Practice and

Procedure, stated in his October 15, 2010, memo to the Committee “the use of bogus

affidavits to support actions to foreclose liens on property, apart from prejudice to the

homeowners, constitutes an assault on the integrity of the judicial process itself. “

The memo further states, verbatim, “When there is some reason to believe that the

affidavit, though perhaps facially compliant with legal requirements, may not be

accurate, the court may enter an order requiring the party who filed the affidavit to

show cause why the affidavit should not be stricken and, if it is stricken, why the

action should not be dismissed or other appropriate relief granted. This approach, in

the Committee’s view, addresses directly the problem that has surfaced – assuring

that these cases may proceed only upon documents that are, in fact, genuine and

valid.”

20. The most cursory reading of the existing documents contained in the Plaintiffs’ Order

to Docket filing clearly reveals that the Plaintiffs did not know who the secured party

is when Plaintiffs took the time to file with this Court its Order to Docket, and that

3 OCC and Wells Fargo Consent Order at Article IV Compliance Program, (1) (b) and (e).

Plaintiffs have to date provided no conclusive supporting evidence as to the identity

of that secured party. Wells Fargo and the Substitute Trustees have shown a pattern

of egregious slighting of the requirements of the OCC, of Freddie Mac, and of the

State of Maryland in order to illegally steal a home. The posture by Plaintiffs strains

credulity and should cause the Court to seriously question Plaintiffs’ good faith in

commencing, and in pursuing, this foreclosure action.

WHEREFORE, the Defendants hereby request this Honorable Court:

a) Dismiss the instant foreclosure action or in the alternative;

b) Find that this Defendant’s Motion be set in for a hearing on the merits, and

issue an Order pursuant to Maryland Rule 14-211 staying the foreclosure

action pending the outcome of such hearing;

c) Issue an Order for a Show Cause Hearing pursuant to Maryland Rule 14-

207.1;

d) Require the Plaintiff to prove legal standing that the Substitute Trustees

have the authority to file the Order Docket, as the Substitution of Trustee

document and the Notice of Intent to Foreclose provided claim that Wells

Fargo is the secured party -- in direct conflict to the secured party named in

the Affidavit of Ownership documents filed in the Order to Docket;

e) Grant such other and further relief as Defendant’s cause may require.

Respectfully Submitted,

_________________________________

Elizabeth M. Jacobson6470 Fairway LaneEaston, MD 21601

CERTIFICATE OF SERVICE

I hereby certify that on the 22nd day of June, 2012, a copy of the foregoing Motion to

Stay/Dismiss and to Request a Show Cause hearing Pursuant to Maryland Rule 14-207.1 was

served on Plaintiff counsel by U.S. Mail, first class postage prepaid and fax, addressed to:

John E. Driscoll, III Substitute Trustee, et al at 611 Rockville Pike, Suite 100, Rockville,

Maryland 20852.

_________________________________

Elizabeth M. Jacobson