Product: Mortgage

BACKGROUND Wells Fargo Home Mortgage , Inc. filed a complaint to foreclosure on XX/XX/XXXX. Since then, Wells Fargo assigned the mortgage to XXXX XXXX XXXX XXXX XXXX, and then assigned the mortgage to XXXX. This motion is in good faith and expresses facts to support that the mortgage was forced into default and the note was invalidly assigned to XXXX. 

HISTORY XXXXBorrower enters into preemptive discussions with Wells Fargo to obtain loss mitigation assistance. Follow-up letter XX/XX/XXXX [ Exhibit XXXX XXXX XXXXBank prevented Borrower from paying mortgage, and returned XXXX and subsequent payment attempts. [ Exhibits XXXX XXXX XXXX ] XXXX XXXX First Modification offered with calculation errors [ Exhibit XXXX part 4 ] XXXX Bank files foreclosure XX/XX/XXXX Note : XXXXpresent Borrower has been making efforts to negotiate a modification or settlement. 

Because of the economic downturn, the government instituted new rules that would prevent or delay foreclosure instead of the strict interpretation of a potential contract violation. It was too common that a homeowners payments to a bank such as Wells Fargo could be delayed enough to constitute a default by the definition of the contract such that it allowed Wells Fargo to decide to initiate foreclosure proceedings according to the original agreements. It was no fault of many citizens to be suddenly laid off and under a financial burden that was unforeseen. Unwilfully, these people were not able to satisfy financial obligations. XXXX XXXX suffered from having a great loss with many foreclosed homes. In the beginning of this crisis in XXXX, the Housing Action Council reports that 94 % of the loans were in foreclosure due to loss of income. At that time, the success rate at obtaining a work out plan with Wells Fargo was a mere 2.69 %. ( XXXX XXXX XXXX last accessed XX/XX/XXXX ) The HAMP ( Homeowner Affordable Modification Program ) was a such a program designed to prevent what would have been a catastrophe on the economy. Wells Fargo signed an agreement with the government to participate in this program [ EXHIBIT XXXX ]. With this program the homeowner would be able to modify the loan such that the payments would be affordable. The new agreement to participate in this program meant that DUAL TRACKING became illegal and delaying any foreclosure action for 120 days of delinquency was the norm to assist with getting modification and helping people keep their homes in a terrible economy. 
In the exhibit, the payments on a {$220000.00} loan would be reduced to {$680.00} with 2 % interest [ EXHIBIT XXXX  ]. The qualifying monthly income should be {$2200.00}. The calculations for this loan would have been similar since the unpaid balance was {$210000.00} for this loan and qualifying income much less. 



ARGUMENT 1. Wells Fargo and XXXX have no rights to foreclose because there is no default a. The issue is no default currently exists as per servicer correspondences which say mortgage account is delinquent. [ EXHIBIT XXXX  ] and potential or existing delinquency. [ EXHIBIXXXX XXXX ]. The argument is that it is impossible to be both delinquent and in default. A loan in default is required to file for foreclosure. Therefore, no default if documentation confirms it. A court " must initially determine, as a question of law, whether the language of a purported contract is ambiguous as to the parties ' intent. 'XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 
b. Another issue is the case filing is invalid since Wells Fargo did not wait the 120 days of delinquency before filing. Under federal mortgage servicing law, the servicer can not start the foreclosure process by making the first notice or filing until the loan is more than 120 days overdue on the payments. [ 12 CFR 1024.41 ( f ) ] The 120-day rule is part of Regulation X and is overseen by the Consumer Financial Protection Bureau ( CFPB ). The CFPBs authority was granted under the Dodd-Frank Act and the Real Estate Settlements Procedures Act ( RESPA ). The rule says the first notice or first filing under a state 's foreclosure law can not occur until the mortgage is more than 120 days delinquent. With the forgoing evidence, the borrower will prove that the Bank violated this rule. Payments by Borrower were made by automatic payments from the bank. To confirm this occurrence, EXHIBIT XXXX shows some of the letters indicating the funds being returned and shown to have been returned XX/XX/XXXX and XX/XX/XXXX. Exhibit XXXX shows continued online payment XX/XX/XXXX, XXXXThis precluded the possibility of preventing the Borrower from paying the loan, minimizing delinquency, and preventing default. The cause of any presumed default would have been by the actions of Wells Fargo preventing the payments. In Barrows vs Maco, the Court held that the superior court 's findings of fact were supported by competent evidence and that as a matter of law, " A party to a contract may not complain of the nonperformance of the other party where that performance is prevented by his own actions. A party can not take advantage of a condition precedent the performance of which he has rendered impossible. A party who deliberately prevents the fulfillment of a condition on which his liability under a contract depends can not take advantage of his own conduct and claim that the failure of the fulfillment of the condition defeats his liability. Delays and nonperformance while they amount to a failure to perform are excused where performance is prevented by the other party to the contract. XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX  ). Based on these facts, this case should not have been allowed. Thus, this entire case was improper from its inception and should not move forward be dismissed with prejudice. 
c. The effect of the Banks actions resulted in preventing the Borrower from the ability to restore performance to the loan. Additionally, a defense of Impossibility of Performance is warranted. The Impossibility of Performance doctrine excuses a contractual performance when it is rendered objectively impossible to perform either by operation of law or subject matter of the contract has been destroyed. Thus, the Banks refusal to take payments destroyed the subject matter, to enable performance. See Innovative Modular Solutions v. Hazel Crest School District, 2012 IL 112052, 37.The doctrine can be also applied to a circumstance if there is an unanticipated circumstance that made the contract vitality different from what should reasonable have been a within the contemplation of the parties at the time of entering the contract. ( Sunshine Imp & Exp Corp. v. luxury Car Concierge , Inc., No. 13 C 8925, 2015 WL 2193808 ( N.D. Ill. May 7, 2015 ). The Borrower believed that his employment and the economic conditions would improve or stay the same. No one expected the total devastation of the economy which resulted in millions of homeowners to default on their loans because of massive layoffs and elimination of whole job categories. Millions of jobs were sent overseas too. The borrower was among those affected. Accordingly, while an occurrence may render performance of contractual duties objectively impossible, this doctrine is not meant to be used in a claim for excused performance where the occurrence was foreseeable and/or could have been guarded against in a contract. The Borrower claims that he did everything in his power to continue paying as shown in exhibits stated in 1b above to avoid such an excuse.

d. These proceedings have errors because the Bank confuses terms such as Default to gain advantage with court. In this case the word Default in note means Missed payment whereas Default in Law 120 days delinquent in payments ( 12 CFR 1024.41 ( f ) ).

e. Bad faith -- Another issue is timely notifications were not made on loan transfers. Borrower continued to negotiate modifications with XXXX when they did not presumably own the loan. Proving this statement with the dates of transfers : Wells Fargo to XXXX XX/XX/XXXX ; Wells Fargo to XXXX XX/XX/XXXX ; XXXX to XXXX XX/XX/XXXX ; and dates of loss mitigation letters : XX/XX/XXXX [ ExhibiXXXX XXXX XXXX Notifications of these assignments were not sent to Borrower as requires by RESPA -- 12 CFR Part 1024. As a matter of law, Bank was required to send these notice [ Exhibit XXXX ] was untimely. Notifications were not sent within 30 day and resulted in violation of RESPA requirements. Also 12 CFR 1024.33 says transferee servicer shall provide the notice of transfer to the borrower not more than 15 days after the effective date of the transfer. No such notice from XXXX was received. Borrower was engaged in loss mitigation with XXXX XXXX XXXX during the period that they were not the owners of the mortgage which is an indication of bad faith and unfair dealing. 
f. If the case were valid, notification of transfers was not given, and continued negotiation with an entity not party to the loan at that time, made it impossible for the borrower to negotiate a plan to keep home or other resolution in case. Therefore, the case must be dismissed. 
2. XXXX Does Not Have the Right to Foreclose Because Their Transfer of the Note is Invalid. 
a. In Carpenter versus Longan -- " where a promissory note goes a deed of trust must follow, the deed and a note can not be separated '' so there is no clear chain of title. 83 U.S. 271. In Bank of America v. Basman EBT, LLC, 2012 IL App ( 2d ) 110729, the court held that in challenging a Bank 's standing, a borrower can not attack the " sufficiency '' of an assignment but is limited to asserting that an assignment is void. Assignment to XXXX occurred after the mortgage was assigned to XXXX XXXX XXXX. Wells Fargo NA made invalid assignments to XXXX XXXX XXXX as recorded at the XXXX XXXX Recorder 's Office on XX/XX/XXXX document number XXXX and later made assignment same assignment to XXXX XXXX XXXX XX/XX/XXXX document number XXXX. Also, no address was recorded. XXXX XXXX XXXX then made same loan assignment to XXXX on XX/XX/XXXX document number XXXX also recorded at the XXXX XXXX Recorder 's Office. Patrick L. Cogswell v. Citifinancial Mortgage Company, 624 F.3d 395 ( 7th Cir. 2010 ), holds that under Illinois law only the holder of a note may foreclose on property. Transferring a mortgage is not enough by itself to confer the right to foreclose upon property. The Patrick Group could not prove it was a note holder, and therefore it was not entitled to foreclose. ( 720 ILCS 5/32-13 ) Sec. 32-13. This could also constitute an unlawful clouding of title. ( a ) Any person who intentionally records or files or causes to be recorded or filed any document in the office of the recorder or registrar of titles of any county of this State that is a cloud on the title of land in this State,. 
b. False Certificates are Punishable. Pursuant to 735 ILCS 5/81207 If any officer, clerk, secretary, cashier, or other person authorized to certify copies of any papers, entries, records or ordinances, knowingly makes a false certificate, he or she is punishable in the same manner as if he or she were guilty of perjury. ( See also18 U.S. Code 1038 ( b ) ) This warns against presenting false information. Since the case was not filed according to law making it an invalid filing and the case has errors in the consistent use a vital word paramount to the interpretation of the case, then this case should not continue because the outcome of the case is flawed by these errors. As a result, the case should be dismissed. ( Information access error fact : Due to an error in the Recorders office website, these transfers were not displayed by the system under certain conditions so this issue could not be raised prior to recent proceedings. [ EXHIBIT XXXX ] ) Bank may try to argue that See 735 ILCS 5/2-1008 ( a ). See also Byrne Org., Inc. v. Cantin , 16 Ill. App. 2d 31, 35 ( 1st Dist. 1957 ) ( The Civil Practice Act clearly provides for substitution of parties where there has been a transfer of interest or liability occurring after the commencement of a cause or proceeding. " However, the information concerning the invalid transfers was not privy to the court. There is also an error with the Recorders office website displaying this data. ( See ExhibiXXXX XXXX ) c. Cloud on the Title as mortgage assignments denote violation of Uniform Deceptive Trade Practices Act 815 ILCS 510/2 ( 1 ) passes off goods or services as those of another ; ( 2 ) causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services ; ( 3 ) causes likelihood of confusion or of misunderstanding as to affiliation, connection, or association with or certification by another ; d. Confusion on Who is the Bank -- Proof of this is in the filing of BANK 'S MOTION TO CONSOLIDATE AND SUBSTITUTE PARTY BANK on XX/XX/XXXX. Bank continued to believe substitution was necessary although substitution was unknowingly granted XX/XX/XXXX. 
e. No Servicer or Presumed Mortgage Holder was responsible for loan as the home incurred a Tax Lien on XX/XX/XXXX. XXXX XXXX XXXX purchased the taxes amid the confusion. This also supports the theory that the title is clouded and the transfers of the loan are invalid. [ ExhibiXXXX XXXX of Motion to Dismiss ]. Again, the homeowner was not notified of transfers amid the confusion and ran the risk of losing home to a third-party superior lien. The Bank may try to use a defense for this assertion by stating that the Borrower owes $ XXXX on the taxes which would be a reasonable assertion if the loan was valid. Borrower asserts that with the aforementioned facts and knowing the original lender, Wells Fargo NA does not exist as a mortgage lender. [ Wells Fargo Is Backing Out Of The Mortgage Market - What Does It Mean For Homebuyers? XXXX XXXX XXXX? XXXX last accessed XX/XX/XXXX ] This leads one to believe the loan had been discharged, illegally transferred, or left in a state of confusion with the cloud on the title. Further discovery would be required to gather more specific information concerning this. Furthermore, to preclude the argument that the Borrower is supposed to be responsible for the taxes, the current taxes due XX/XX/XXXX has already been paid by XXXX on XX/XX/XXXX. The Bank knew that the Borrower was taking responsibility of paying the taxes and also disputing their claim on the property after a Motion to Quiet Title was filed XX/XX/XXXX. Their payment is an effort to circumvent the Borrower from paying the tax. This again is another example of their effort to make it impossible to perform. Again The Impossibility of Performance doctrine excuses a contractual performance. Therefore, this case should be dismissed with prejudice. 
f. A Cloud of Bad Faith also is denoted by the mortgage assignments Proof of this is in the filing of BANK 'S MOTION TO CONSOLIDATE AND SUBSTITUTE PARTY BANK page 2 footnote 2 they admitted to an invalid mortgage transfer Out of an abundance of caution and in the interest of complete candor, Wells Fargo made an invalid assignment to XXXX after it assigned its interest to XXXX XXXX XXXX Also Attached Exhibits contain the Transfers in question. ; No payment of taxes. Errors exists in the transfer of the loan and note. Pursuant to 55 ILCS 5/3-5010.5 a fraud referral and review can be initiated. 

With the evidence presented one can conclude that there is no true owner of the transferred loan. This case must be dismissed with prejudice. 
g. Invalid Calculations -The Principal Unpaid Balance is Invalid Principal Unpaid Balance changed from $ XXXX to {$210.00} XXXX Proof - Wells Fargo / XXXX XXXX XXXX . This also proves defense in previous pleadings that calculations were incorrect. If the case were valid, the loan would not be valid because of the discrepancy of the numbers. The invalid calculations have been the primary subject of dispute and it proves Borrowers claim that the calculations were invalid and have been invalid since the beginning of the case, thus making it impossible to know the true amount owed. As a result, the case should be dismissed with prejudice. 

3. Wells Fargo NA is a mortgage company tied to many federal and state court actions for violating antifraud rules, resolving fake account probes, defrauding shareholders, abusing auto loans, and abusing mortgage loans. The Consumer Finance Protection Board ( CFPB ) has investigated and fined them on a number of offenses in support of this action. [ Exhibit XXXX XXXX XXXX ] Fraudulently Assigned payments [ Exhibit XXXX  ]. Other note showing a payment to XXXX It would not be a fraudulent act to assign a payment to a customer in order to attempt to validate claim to loan. As a result, this case must be dismissed. 
4. UNCLEAN HANDS Under the doctrine of unclean hands, the Bank is barred from relief based on the aforementioned facts. The doctrine of unclean hands precludes a party from taking advantage of his own wrong. The doctrine applies if the party seeking equitable relief is guilty of misconduct, fraud, or bad faith toward the party against whom relief is sought if that misconduct is connected with the transaction at issue. and [ A ] ccording to the doctrine of unclean hands, if Banks were guilty of misconduct, the trial court could bar them from recovering the interest, even if they were otherwise entitled to it. Long v. Kemper Life Insurance Co., 553 NE 2d 439 Ill : Appellate Court, 2nd Dist. 1990. The Bank accuses the Borrower of defaulting on the loan however the Bank was culpable to all of the offenses stated above.

CONCLUSION The Borrower has presented the facts as best to knowledge and documentation available without misrepresentation. Within this there is evidence showing inconsistencies, confusing documents, misrepresentations, and other actions by the Bank to indicate bad faith and unfair dealing. Consistently the Bank misrepresents facts that lead to their action of foreclosure. For example, Bank incorrectly states that Borrower defaulted on the note.. based on the contract when in reality and shown herein, the Bank participated in Federal programs to assist borrowers to keep their homes, and obtain modifications yet refused to take payments and caused long delinquency ensure a foreclosure filing. The Bank encouraged the borrower not to get current because the modification would erase the extra fees. Their statement is further mooted and confusing by paperwork indicating delinquent and not default status. ( See item 1and Exhibit XXXXand XXXX ). Additionally, an apparent cloud in the title exists with an admitted invalid and possibly fraudulent assignment. A motion to dismiss challenges the legal sufficiency of the complaint and herein the facts show that there is no sufficiency to support a foreclosure. 

Additionally, almost 8 years of litigation to a case that should have never started led to the Borrower sustaining damages : 1 ) to credit ; 2 ) economic loss from inability to fairly negotiate a plan to stay in the home ; 3 ) economic loss of home value ; 4 ) Loss of happiness in being able to live in home, 5 ) health due to inability to secure credit or other funding to repair home with mold and other health robbing problems ; 6 ) and unfathomable emotional stress.

Also note : 203.556 Return of partial payments. 
( a ) For the purpose of this section, a partial payment is a payment of any amount less than the full amount due under the terms of the mortgage at the time the payment is tendered, including late charges. 

( b ) Except as provided in this section, the mortgagee shall accept any partial payment and either apply it to the mortgagor 's account or identify it with the mortgagor 's account and hold it in a trust account pending disposition. When partial payments held for disposition aggregate a full monthly installment they shall be applied to the mortgagor 's account, thus advancing the date of the oldest unpaid installment but not the date on which the account first became delinquent.