Leading Questions (2)

  1. When conducting your research, you made a discovery regarding banking practices. Which specific provisions did you refer to?
    1. Banks must follow GAAP and GAAS (see 12 U.S.C. § 1831n (a)(2)(A) and/or 12 C.F.R. 741.6(b)).
    2. Various Federal Reserve Publications that disclose how money is created, banks do not lend depositors funds, depositing a promissory note is no different than depositing cash or a check, etc. (see Federal Reserve Bank of Chicago publication “Two Faces of Debt” (p. 19),  Federal Reserve Bank of Dallas publication “Money and Banking” (p. 11), Federal Reserve Bank of Chicago publication “Points of Interest” (p. 6), Federal Reserve Bank of Chicago publication “ABCs of Figuring Interest” (p. 2), Federal Reserve Bank of Richmond publication “The Federal Reserve Today” (p. 14), etc.).
    3. How banks should treat the deposit of a promissory note (see 12 USC 1813(l)(1)).

 

  1. Did a valid contract exist between you and Respondent? No, the contract (promissory note) was created with the original creditor. However, it was assigned to some unknown party that the Respondent hasn’t disclosed even after several requests. The Respondent is the servicer as well as the one enforcing the contract (promissory note) either for themselves or for the holder of the note.

 

Note: From my understanding, 16 CFR 433.2 states that any holder (Respondent) is subject to any claims and defenses a buyer (Complainant) can assert against the seller (original creditor) of goods and service. Therefore, anyone “downstream” is just as liable as the original party (original creditor). Hence, the reason I am targeting the Respondent. They refuse to reveal the other parties. So, if the Respondent isn’t the correct party to sue. My desire is to, at least, move the court to force the Respondent to disclose all the parties.

 

  1. If there was a valid contract, which terms of that contract did the Respondent violate? The Respondent inherited and perpetuated the liabilities the original creditor started (see #2, namely 16 CFR 433.2). Therefore, the original creditor did not provide consideration. They received the promissory note for free. There was no meeting of the minds. The complainant cannot mutually understand or agree to the terms and conditions of the loan agreement if there’s no full disclosure regarding such terms and conditions.

 

  1. How did you suffer from the violation of that contract? Complainant’s check in the form of a promissory note was stolen, cashed, and then returned to the Complainant in the form of a loan. Therefore, the original creditor never provided a loan. Consequently, the Complainant suffered a loss equal to the value of the promissory note plus mortgage payments and all proceeds generated from the securitized promissory note.

 

Furthermore, the cost and risk of the transaction drastically changes in favor of the original creditor and all transferees and assignees, including the Respondent. How? In accordance with GAAP, which is federal law, the original creditor is required to record bookkeeping entries that show the Complainant lent money to the original creditor, not the other way around. Not only does the Complainant lose the value of the promissory, monthly mortgage payments and all proceeds generated from the securitized promissory note, Complainant also bears the risk of losing the collateral if Complainant is unable to repay the loan.

 

The loan process is analogous to someone stealing your automobile, selling it, returning the proceeds from the sale to you as a loan, and then leasing the automobile to others while keeping your automobile. In this case, you lose your automobile or the value thereof, your auto loan payments, and all lease payments.

 

Note: That the Respondent didn’t give full disclosure is misrepresentation, not breach of contract. It is a ground for nullifying a contract. Ok, perhaps I’m using meeting of the minds and disclosure interchangeably. I’m thinking meeting of the minds means a mutual understanding. However, one cannot understand what is not disclosed.

 

  1. How did the Respondent owe you fiduciary duty? By operation of law, a constructive trust is automatically created when property transfers due to inequitable means such as fraud, concealment, duress, misrepresentation, without consideration, etc. A trust creates a fiduciary duty by the trustee (Respondent) on behalf of the beneficiary (Complainant). In addition to the constructive trust, Complainant expressed trust over the property (the promissory note, including all assets therefrom) via a Notice of Trust for added assurance due to the fact it’s now in writing.

 

  1. How did the Respondent breach that fiduciary duty? The beneficiary (Complainant) has the right to a full accounting regarding the trust property as well as to issue instructions regarding what should be done with said property. Respondent has not complied with the instructions from the beneficiary i.e. to provide a full accounting, disburse the assets for the benefit of the beneficiary (Complainant), settle and close all accounts, and release the collateral.

 

Pursuant to UCC 8-506 to 8-508, an entitlement order was issued with the same instructions. If you read those Uniform Commercial Codes, the securities intermediary is the bank, the entitlement holder is the Complainant, and the entitlement order are instructions to the securities intermediary, instructing them what to do with the property (the financial asset in the form of a promissory note that was treated as a daft and subsequently a security).

 

  1. How did you suffer from breach of that fiduciary duty? See #4. More specifically, the Respondent neglecting their fiduciary duties is depriving Complainant from proceeds generated from the securitized promissory note. The total amount of the proceeds can only be determined by a full accounting, to which, the Respondent has the duty to provide, but hasn’t complied with the above-mentioned orders.

 

  1. What was the purpose of the promissory note? The purpose of the promissory note was to obtain a loan in order to refinance a piece of real property. This entails the following: 1) the intent of the loan agreement (promissory note) is that the original party who funded the loan per the bookkeeping entries is to be repaid the money, 2) the original creditor would follow GAAP, 3) the original creditor would purchase the promissory note from the Complainant, 4) the Complainant doesn’t provide any money, money equivalent, credit, funds, capital, or anything of value that the original creditor would use to give value to a check or similar instrument, 5) the Complainant is to repay the loan in the same specie of money or credit that the original creditor used to fund the loan per GAAP, and 6) the written loan agreement gives full disclosure of all material facts.

 

  1. How did the Respondent violate the purpose of the promissory note? The Respondent inherited and perpetuated the liabilities the original creditor started (see #2, namely 16 CFR 433.2). Therefore, the original creditor did not provide a loan (see explanation under #4). However, the original creditor advertises that they do provide loans. The original creditor treated the promissory note as a draft (check) AND a note (loan). However, they can only treat the promissory note as one or the other, not both. When the original creditor treated the promissory note as a draft, which is the same as a check, the transaction changed from being a loan (to the Complainant) to an investment contract (between the Complainant, the original creditor and all transferees and/or assignees). In other words, the bank owed the Complainant. The original creditor is required to record promissory notes, that are treated like drafts (checks), in the same manner as depositing a payroll check from a bank customer. The bookkeeping entries should show a liability owing the bank customer and not a loan owed by the bank customer. Consequently, the original creditor did not follow GAAP and/or GAAS.

 

The original creditor did not fulfill the intent and purpose of the loan agreement: 1) the original party who funded the loan per the bookkeeping entries will not be repaid, 2) the original creditor did not follow GAAP, 3) the original creditor did not purchase the promissory note from the Complainant, 4) the Complainant did provide money, money equivalent, credit, funds, capital, or something of value that the original creditor used to give value to a check or similar instrument, 5) the Complainant cannot repay the loan in the same specie of money or credit that the original creditor used to fund the loan per GAAP, which violates equal protection under the law, and 6) the written loan agreement did not provide full disclosure of all the material facts.

 

Additionally, the original creditor forged the promissory note by altering (or adding) to it when the promissory note was indorsed for the purposes of securitizing it.

 

  1. How did you realize that the Respondent violated the purpose of the promissory note? The Respondent inherited and perpetuated the liabilities the original creditor started (see #2, namely 16 CFR 433.2). Therefore, Complainant realized the original creditor violated the purpose of the promissory note via tacit agreement. Pursuant to UCC 2-609, Complainant has a right to request adequate assurance of due performance from the Respondent. Respondent refuses to provide adequate assurance of due performance by withholding discovery items and things that would prove the original creditor did not adhere to the intent and purpose of the promissory note (see #8).

 

  1. Which provisions of the Missouri Merchandising Practices Act did the Respondent violate? The Respondent inherited and perpetuated the liabilities the original creditor started (see #2, namely 16 CFR 433.2). Therefore, the original creditor’s violations involve the act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce.

 

  1. How did the Respondent violate those provisions? The Respondent inherited and perpetuated the liabilities the original creditor started (see #2, namely 16 CFR 433.2). Therefore, see #9. 

 

  1. How did you suffer from the Defendant’s actions or omissions in violating the Act? The Defendant inherited and perpetuated the liabilities the original creditor started (see #2, namely 16 CFR 433.2). Therefore, see #4 and #7.

 

  1. Which facts did the Defendant misrepresent? The Defendant inherited and perpetuated the liabilities the original creditor started (see #2, namely 16 CFR 433.2). Therefore, see #9. 

 

  1. How did they impact your decision making? Complainant would have never entered into such an unconscionable agreement if full disclosure was given. Complainant would’ve, at least, negotiated a transaction fee with the original creditor for the same being a money exchanger and not an institution that claims to provide loans.

 

  1. How have you suffered from the wrong decision you made? Due to mistake, error, and/or accident: 1) a check (in the form and amount of the promissory note) was stolen, 2) monthly payments in an amount greater than the face value of the promissory note was lossed due to extortion (the threat of foreclosure), 3) proceeds from the securitized promissory note are being stolen, 4) the original creditor and all transferees and assignees, including the Respondent, are being unjustly enriched, and 5) real property collateral is at risk. If that’s not enough, all of this is occurring without anything of value from the original creditor. In other words, the original creditor has not lent one cent.

 

  1. Did the Defendant owe you duty of care to claim negligence? Yes.

 

  1. How did the Defendant breach that duty? The Defendant inherited and perpetuated the liabilities the original creditor started (see #2, namely 16 CFR 433.2). Therefore, see #9. 

 

  1. How did you suffer as a result of breach of that duty? The Defendant inherited and perpetuated the liabilities the original creditor started (see #2, namely 16 CFR 433.2). Therefore, see #4, #7, and #16.

 

Note: You cannot claim contributory negligence. That is a defense, not a claim. Correct. At the time, I was thinking more about being sued vs suing. Thank you.

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