Fagan: Defeats Wells Fargo on Judicial Notice

Editor’s Comment: Following up with the offensive strategy and the concept of attacking every weak point in the pretender lender’s strategies, Fagan went after Wells Fargo on the seemingly innocuous motion for the Judge to take Judicial notice of several documents.

Besides the obvious fact that Judicial notice is narrowly construed to allow the FACT that a document was RECORDED (and not as proof of the matters asserted in such documents), Fagan took the offensive and essentially argued that Wells was trying to win a non-judicial foreclosure (in court, which is an oxymoron) using proof that could not be accepted in a judicial foreclosure.

His argument and his citations are right on point. The moral of this story is that if you keep the faith and realize that this entire foreclosure mess is just one part of the securitization scam, then you arrive at the inescapable conclusion that the homeowners should win, not just delay the foreclosures. Once you know you should win, it is easier to take the offensive and start thinking about the cases in a different way.

The question is not just “how do I protect my client” but also how do I win this case.”

Read the documents below and you’ll see how Fagan artfully slices up the Wells Motion for Judicial Notice and how the Court concluded correctly that Wells can’t get away with violating the rules of evidence simply by slipping documents in through the back door.

It looks to me like we are turning the corner here. Deny and Discover has been getting a lot of traction. Stopa has surprised pretender lenders with summary judgment granted in favor of the borrowers and Fagan, is picking apart Wells Fargo. A fellow I know recently said to me “if you you can make it bleed, you can kill it.” He was referring to foreclosures.


Barry Fagan v WELLS FARGO BANK SC117023 OBjection to Request for Judicial Notice Craig D. Karlan Oct. 23 12


59 Responses

  1. Good work on Mr.Fagans part I would say that I was wrong when I said his approach was week.

  2. I heard a black preacher say Obama wants to own all property….To that I say ……..HE CAN’T …….HE NEVER PAID FOR IT……WE THE PEOPLE DID…….WE THE PEOPLE WANT PROOF OF WHERE ALL OF OUR MONEY WENT…..WE THE PEOPLE DEMAND AN AUDIT OF THE U.S. TREASURY DEPT….ALL THE WAY BACK TO 1916….the year the first GSE was created as a so called farm subsidy program….

  3. The FED INVESTORS can swap their own insolvent debt around all they want. I am not paying them for committing fraud in my name….. None of these transfers have any basis in law because of the ORIGINATION FRAUD……….The FED INVESTORS are swindlers & scammers.

  4. New purcahse borrower does not acquire the mortgage debt of the seller unless the loan is an assumable loan, which have not been available for three decades.

    ANON, look at what they are really selling over and over, it a’int (had to say it) da notes. Cash flow from the GSE pools guarantee cash flow at the corporate GSE. The trust side is nothing more than purchase agreements and credit risk, of courese fully insured by the taxpayer.

    Fannie and Freddie have always been a huge Washinton sludge-hole and the fraud that lays behind the walls would bring down the very bank officers who, in concert with Washington, have siphoned off the value for years, leaving the taxpayers on the hook to fully supoort these socialist slush-funds for the reswerve system banks and DC insiders. Why do you think Barney Frank is sucking Dimons ass in public?

  5. The real failure here was the day the FED INVESTORS believed they could turn American citizens into corporations via our birth certicates without our knowledge…..and by merging with us they could own us & control us. WE THE PEOPLE never agreed to that. That was criminal deception…intent to deceive by not revealing the true facts of their actions is proof of criminal intent to defraud the American people..

  6. No shadowcat you are confusing your own failure with success……….I already know you failed & how you …… by criminal deception, defrauded me & intentionally caused me to fail & intended to cause me permanent harm…..and, I can prove it. Pay your own bills loser….

  7. Your confusing things again Ivent. It was my Lack Of Silence that Shot the Beast Down Twice. That is Callied Winning! Not Failure! Your Confusing Your Situation of Failure with Me Again. You Can Not Compare Apples to Sour Grapes. Just Saying… Tick..Tock..

  8. Being an American reject is a really good thing.

  9. I never listened to people who talked about or sang about things that bored me. Yawn……I was bored to death in high school….I was more interested in figuring out how to break their rules and how not to get caught….they never did……I was taught from an early age that rules are made to be broken….rules create playground bullies who terrorize the innocent…I follow the RULE OF LAW……NOT THE RULES OF RADICALS…….THEY REALLY CAN’T FORCE YOU TO COMPLY, CONFORM OR COOPERATE WITH THEM…….SO THEY KICK YOU OUT OF THEIR SHITTY SYSTEM……REJECTION BY THEM IS FREEDOM & INDEPENDENCE……

  10. You confuse sitting silently & doing nothing with paying attention. That is where you failed.


  12. In reality, all religions are based on a belief in God…..it just depends who you perceive that God to be. Atheists believe they are God….no one is greater than themselves. Catholics are taught to believe in intercessors. That is a very dangerous theory. That obscures the truth. I believe in going directly to the Creator. The maker of everything. That is the RULE OF LAW.

  13. If it doesn’t make sense …its fraud…..go directly to the TRUTH & forget the middle man…..they are the interpreters of the ORIGINATOR OF THE FRAUD…….when you find the ORIGINATOR….YOU WILL KNOW WHO YOUR ENEMY IS…OBSERVE THEM CLOSELY…..& DON’T TAKE YOUR EYES OFF OF IT.

  14. Sitting Silent and doing Nothing? Growing Up in a Catholic Community such as Myself. (Althou I’m Not Catholic). You Should Also Have Leared …. Its the Quiet Ones that Will Surprise You!

  15. Agree, agree…I am not compliant either. Don’t blow smoke up my ass, you know.

    Many times I have been told, what is wrong with you, the rules are the rules, quit acting like a someone special. I’m not special, but being brought up Catholic and now finding the priests have molested hundreds of boys, it occurs to me the silence of these crimes is at the heart of the enabling.

    Sitting silent while the banksters lie, cheat and steal to their own benefit is the same behavior. As long as we as a society cover this up and condone it…we are just as guilty. Felonies are a crime no matter how rich and powerful you think you are. Equal opportunity, under the law for incarceration. Plenty of room in the for-profit prisons.

  16. We were taught compliance to exactly what at a very young age…..? That is what separates the dumbasses from the intelligent people.

  17. RULES & REGULATIONS, TAXES & SOCIAL SAFETY NETS are clever weapons used by our opponents to control us and are used to rob us & instill fear in us. That’s why Wall Street, the so called regulators & the politicians don’t follow the rules. Rules & Regs obscure the RULE OF LAW BLUR THE LINE BETWEEN WHAT IS TRUTH & WHAT IS FRAUD…..In reality….RULES & REGS ARE WORTHLESS……AS THIS MANUFACTURED CRISIS HAS PROVEN…..

  18. @Poppy, RE: “We are taught at a very young age, compliance”. Agreed. But… We were also taught the differance between Right & Wrong. When Wrong becomes the “standerd practice” and is enforced by compliance … their is a Conflict! YEP! Grandpa Taught Me That! I’ve Been Accused of Not Being a Team Player more than Once in my Lifetime! Yep! Yep! I did not participate and I did not conform. And Proud of It to! Stand True To Yourself

  19. Funny, I don’t remember being taught to comply, conform or cooperate with fraud and lawlessness……I think it goes back to when we were taught not to trust strangers or take candy from them or talk to them. Like Santa Claus, Halloween & the Easter Bunny always gave me the creeps. Trust your instincts…..that is what I was taught because RULES & REGULATIONS ARE MADE TO BE BROKEN……THEY ARE NOT MADE TO PROTECT YOU……THEY ARE MADE TO PROTECT YOUR OPPONENTS……


  21. True, Poppy. It’s all just a cover-up for collection rights. Debt collectors and their scum lawyers.

  22. @ Ivent

    We are taught at a very young age, compliance. Most people are told money makes you different. Money makes it easier to acquire things. These thugs are in it for “power” and “control”, they have more money than they can spend in a lifetime. The only reason they are winning is they can buy special legislation and have plenty of your money, taxpayers money, to throw at the issue. Some of the complaints we have read, in fine detail, are ludicrous…sloppy and have no merit. The key, as I see it; get the complaint turned around on them and they are ill-equipped to respond. They lie so much, they cannot remember what they said previously. They quote cases that do not even relate to the subject matter, some of the cases are not published (a no-no in some courts), called some of the phone numbers on the faxes and they are from places in NJ, NY, doctors offices on Sundays at 6:00 p.m…Credit Suisse uses a private doctors phone number to fax an amended repurchase agreement with New Century? Wiring instructions with RBC, Deutche Bank and New Century…knock-knock, who’s there? Ghost Lender…then Scott Anderson jumps in, in 2010, as attorney-in-fact for Ocwen. Signs for 10 companies with a squiggle.Judge Schack has ripped his ass, when he asked for his W-2’s or 1099’s and didn’t show up or provide them.

    At the end of the day: if you rightfully own something, there is no need to falsify documents and lie about anything.

  23. Deregulation is just another word for lawlessness…..Regulations are no more than rules for playgrounds……the playground of the rich & lawless AKA WALL STREET……. They make their own rules on Wall Street & they don’t give a damn about the laws……they operate on the margins and play a very strategic, cold & calculated game of catch me if you can for the FED INVESTORS. Being lawless under the guise of playing by the rules is very lucrative for these bankster crooks and their owners…They believe they are Gods…..infallible and believe all of us should just be their obedient slaves. Well the tables are turning & people are realizing…..obedience is for dogs & most dogs even reject that notion….

  24. Happily basking in the glow of your own ego…

  25. “Such a happy life.”

    Indeed. 🙂

  26. Your case is always rested, enraged. Such a happy life.

  27. I rest my case.

  28. @David

    Deregulation prevents the truth from coming out, and the “books” from being “opened”.

    When I asked my servicer point blank: “WHO is real creditor?”—his response (snidely): “I don’t have to tell you that because of privacy laws…”

    What he meant was: “I don’t have to tell you that because of deregulation.”

  29. BTW obviously in bankruptcy court

  30. I just had my motion to stay an order pending appeal denied and I submitted 70 pages of evidence they were unsecured. On my credit report they have the loan as closed prior to their fraudulent motion for relief. They have told me repeatedly they are not the creditor and say a diff bank is who also has a REMIC mbs trust, it was all fraud. Yet after spending hundreds of dollars and every waking minute, barely sleeping, reading law books, the judge won’t listen to me and he said he read everything. No way did he.it says the right party in interest and SECURED CREDITOR can bring a motion for relief. They presented my original loan note and trust and a fabricated assignment they created from that note and deed of trust and that bank closed 3 years prior to the assignment, where did I go wrong? After being up all night doing a diff motion I get a call giving me less than 24 hour notice for a hearing. I was late, sleep deprived and the judge said he’s denying it. Good thing was it postponed a sale that day. Now what? I don’t believe the judge read everything I filed. Every doc is fraudulent and I have proof! If they have a color able claim, I have a psychedelic claim! Should I do a motion to reconsider? In one year and 10 QWRs they can’t provide any documents! I say they are?..well I won’t go there, please help!

  31. Just so you know, David—one of @enraged’s lies (that she says over and over) is that I didn’t fight. I did. I fought in my own way and did things that I never talked about here in detail—but what I did didn’t work the way I had been told it would.
    But, I have a wonderful family to take care of…and I did and I am, with the choices I made and continue to make.

  32. OOOOOOOhhh, yeah…David—I’m REALLY dangerous.

    I post the truth. Enraged lies…over and over and over.

    Which is more “dangerous”?

    ‘Nuff said.

  33. David

    “Carrie – so how does anyone in foreclosure challenge the refinance as true or not true. If they keeping those files hidden from us – how can we force them open?

    How do trace them back to charge-offs…?”

    Don’t ask direct questions. Carie is incapable of giving that kind of an answer. She never went to court. She never actually compelled anyone to produce anything. She walked away from her own foreclosure without fighting it, after making lots of noises on this site. And since then, all she’s been doing is cut-and-paste whatever Anonymous wrote. She means well. She really does. But she only knows enough to be dangerous. Not enough to be effective.

    The short answer is: get an attorney if you can find one in the state where you live. If you have difficulty finding one and can’t pay NG’s membership fees, I may give you some pointers on how to find good ones. There are networks of attorneys nationwide and homeowners at risk of foreclosure can find help. Just choose where you ask for it.

  34. Pack mentality at its worse… I rest my case.

  35. Isn’t that Special…carie: if she had an ego, she wouldn’t be here all day copy and pasting, she would have some of her own ideas. Stupidity is relative…one may know about horses, another about law, another about food…intellect is inherent in all of us, it is just relative to the situation. That what smart people really understand. We all make a contribution, that’s why the entire world works. Just because a few squander wealth and use it for the wrong reasons, does not mean the rest of us are invisible. Personally, I would love to challenge Enraged one-on-one…she will see what a real woman can do. Her comments about women in general are very telling about her. Even though in small part I agree…some females attitudes and lack of self-esteem is nauseating. But, each to their own.

    The paperwork I have is from the court, discovery and generated from thousands of hours of research. Deny and discover, is valid, it works, and I do not always agree with Neil on some of this. I have no pat answers…but the court is listening and my goal here is to share what is making traction. It may not work for everyone, but it is information, to be used as one sees fit. All I can do is share. If it doesn’t work for you, then ignore it. I can tell you all the newspaper is full of $hit and very jaded. Nothing ever comes of these “stories”.

  36. 🙂

  37. The great Ego of the Universe has spoken…

  38. Sent by Anonymous to… me, on July 22nd.

    “I do not even read LL anymore. A waste of time for me.”

    So, for those who claim that she doesn’t come here because “she can’t”, pleeeease! I have no problem getting all the info I need from her. She simply won’t waste her time giving it to morons.

    And Poppy, you’re absolutely right: many have problems with me. That is… many insecure, marginally intelligent women, incapable of lining up two thoughts without getting a brain cramp. The thing is: I don’t have a problem with them. They’re stupid, they know next to nothing, they don’t think for themselves and they have that irritating insecure-women-pack mentality. No wonder so many American men can’t stand them and go out of the country to find a wife… Personally, you don’t exist for me, except as a reminder of what not become.

  39. @ Enraged,

    Many have a problem with you….not just me. No one has to justify their ideas and comments to you. They are bigger than that. And you monopolize this site for your own personal ego. ANONYMOUS is not here anymore in part because of these petty, insensitive attacks. And she is not your friend as you elude too. You are not everything to everyone. Get over yourself and actually help, not copy and paste jaded, newspaper nonsense.

  40. Your insincerity is palpable.

  41. “ANONYMOUS is a PhD in economics. She does know what she is talking about.” From what I recall, she has a masters in finance, not economics. I’ll check it out with her when she gets out from the storm damages and back online.

    You two crack me up. I address neither of you but you can’t let go… and by the way, i found it very interesting to learn that I had the power to compel someone to actually change his/her (probably hers…) screen name. What a laugh!

  42. “Mortgage-Backed Securities (MBS) are securities or bonds that derive income from mortgage loans which are backed by the assets of the borrower and INSURED by a trust which can be sponsored by the
    government or by private entities such as investment banks and real estate investment trusts or conduits.”

    This isn’t gospel – it’s from a website called differencebetween.net.
    We know that FNMA guarantees (insures) payments as evidenced in the FNMA prospectus(es). And btw, as to the FNMA guarantee, the servicer makes the FNMA guarantee-advance and then is reimbursed by FNMA. But what I’m wondering is if all these deals are insured and to the -legal- benefit of whom? In the last few days, I have alleged that the banksters might have willfully avoided the sale of the loans in favor of security interests for their own wrongful gain. That might be the case, or it might not be. I’m trying to learn stuff I don’t want to learn, truth be told. I personally don’t have the energy to take on the “wrongful creation of money by debt”. As to our support of that proposition or at least my own knowledge of support (aka none), the allegation will just get tossed. Those of you who get it can go for it, and I wish you would. I am just trying to understand the prescribed relationship of all these parties to each other and look for ‘deviations’ or other facts which would benefit the homeowner (outside the obvious bs with MERS).

    But speaking of my nemisis, the dot is, among other things, an instrument with contradictory language, starting with the fact that it says MERS holds only legal title to the instrument. Right after that, it say MERS has the right to do x and y. One with those rights is not merely holding legal title. How material is the contradictory language to a court interpretting the contract? The answer would take a lot of research into contracts to start with. We all have different takes on what is material. Most of us here are on the same page and want to find ways to save homes: “The loans are bogus because……….”

    Also, the relationship between a servicer and a sub trustee is contractual, which duh on me, I just realized. A dot trustee is supposed to be just that – a trustee, a party equally representing the interests of the other two parties to the dot in enforcing the dot provisions.
    The dot trustee isn’t supposed to be one party’s agent. As a matter of law, what makes a trustee also an agent is the amt of control the principal has over the trustee. Well, obviously, there is control and it’s 100% and exclusive by one party, and if there were ever any doubt, that fact is demonstrated in and by the contract with the servicer, whom itself in order to do anything in regard to a dot must do so under an agency agreement with the beneficiary (like to see that, I would.Why is there a presumpiton of agency with a servicer by courts? They haven’t even seen one master servicing agreement, let alone enough to warrant such a presumption). IF that agency exists, it makes the sub trustee who has a contract with the servicer the sub-agent of the beneficiary (or would if the servicer’s agency with the ben exists) This is a biased and highly prejudicial relationship not contemplated by the legislators when they allowed the dot, and therefore non-j f/c, to be implemented. But courts might just ask how one is prejudiced (even though that’s not the bar – a dot trustee can’t be one party’s agent – period). Was the trustee presented with the original note showing interest in the claimant? (no) If he didn’t get it, I guess I can’t go down and take a look, can I? (no) Did the trustee contact you to get your take on the matter? (no) The dot trustee should have a good faith reason / basis for acting (as a trustee, not an agent), and he doesn’t. Your rights are being abridged, just by this mullarkey.

    What made this sub-trustee contract “show up” for me was the proposed Berkshire – Hathaway Asset Purchase Agreement (for servicing) in the bankruptcy of Residential Capital (GMAC, etc). RC is owned by Ally, which is 74% owned by we the people. (182B in bailouts with I think 85B allegedly repaid to date).
    RC failed gov stress tests, so at least something is likely being enforced. RC either didn’t manage to foist all its S-Pie loans on others, or its large loan portfolio is due to buy-backs or a third possibility (they insured the loans they sold to trusts as indicated at least to me by the first para above). One article said that RC struggled to make payments on its heavy debt “taken out to finance soured home mortgages”.
    HB only got RC’s loan portfolio. It was beaten out for the servicing business by Ocwen (great) who bid 3B. 3B is evidence servicing is big-a$$ business. I don’t think BH wanted it in the first place. BH just announced its partnership with a mgmt group to form Berkshire Hathaway Home Services. Many of those homes in the portfolio will prob ultimately be sold with MERS mtgs and dots. This will never stop until at least MERS is shut down. But what a crock all this is.
    The government bailed out Ally, then BH gets to buy its subsidiary’s propped-up business at a pittance. Are BH and Ocwen getting to avoid the repayment of the rest (or at least a big chunk) of the 182B bailout by buying this stuff out of bk? (One wouldn’t dare suggest collusion if so or even if not)
    No wonder Buffet wants some of this. I errantly thought he was a guy who would avoid this whole rotten apple.

  43. @ Enraged, that should have been directed at carie…I think she said that about the complete money trail? Cannot be done without a subpoena…even then, would they comply? I doubt it.

  44. Carrie – so how does anyone in foreclosure challenge the refinance as true or not true. If they keeping those files hidden from us – how can we force them open?

    How do trace them back to charge-offs…?

  45. @ carie

    ANONYMOUS is a PhD in economics. She does know what she is talking about.

    Enraged needs to chill out and stop second guessing what she knows nothing about. I too have a legal background and an MBA, but am humbled by the legal system in its entirety. I have learned a great deal on this blog, but cannot tolerate some of the “ill mannered” know it all’s. I have left from time to time, because of some of it and returned to share what I do know to be true. People do not have to like statements or believe them, but if one is in court, multiple courts and making headway, what does it matter. They have relevant information to share.

    My cases are moving forward and have a small win with the Federal Judge in NC, where he will not give the attorney the summary judgment and set the case for trial…for now, I’ll take it. Who knows what the judge will ultimately do, but my paperwork is compelling. And I have a claim in federal Bankruptcy Court against the same originator, which was sent to the Justice Department and the claim is a priority claim. So, in the end, even if we lose, we have done something correct. Now, it is up the Judge. People have a right to their opinions and outcomes.

  46. Poppy—ANON is someone who has worked in the securities industry (among other things) and has a masters in finance and has been researching this stuff in and out of court for 8 years…she used to post here but had to stop for legal reasons…I post her info because she can’t. Because of her extensive research she found out about and uncovered more than anyone else with regards to all this.
    She has been to all the pertinent agencies with this info—trying to get help and justice for homeowners—but she is either ignored or told to “Let it go.”

    (FYI—@enraged will now commence with attacking me—her favorite pastime…very suspicious.)

  47. “I have seen no cases where there is a complete disclosure of the money trail. Can you give an example Enraged?”


  48. Jg. Now it says scribd is down for maintenance. Go figure.

  49. Sorry, ANONYMOUS?

  50. I have seen no cases where there is a complete disclosure of the money trail. Can you give an example Enraged?

  51. never heard that carie…

  52. @mary – didn’t you comment that 2 docs wouldn’t open?! Don’t see that comment here now. Anyway, here is the req for jn:



    “…Here is what we are discovering:

    Those “refinances” can be traced back to Freddie/Fannie charge-offs — where collection rights were sold, and purchased by stated Mortgagee and/or Servicer — with insurance funds.

    Those refinances are NOT secured loans.

    They are only reaffirmation of the debt collection rights.

    I am even finding this in PURCHASE of home — whereby the new purchaser took on the default debt (false or otherwise) of the prior owner (without knowing that this was the case). We are finding that this is HUGE. No one is discussing because no one is aware.

    Freddie/Fannie have all records, but refuse to divulge. This is why people are dealing with debt buyers. With each refinance, only servicing to the collection rights changed.

    However, refinances were PRESENTED as a valid mortgage refinance, which it was NOT. The actual debt buyer, for whom the servicer services — is undisclosed.

    Why BK is important, is to show that the debt is unsecured. Nothing more than credit card charge-offs, which can be discharged in BK.

    What you are challenging in BK is the status of the “debt” — secured v unsecured.

    In addition, there are actions for fraud in the origination of the false refinance. This is not discovered until the COMPLETE money trail is traced — including all charge-offs, insurance collected, and that pay of all REFINANCES, were fraudulent.

    No money in any refinance ever reached the prior party.

    This is what happens in debt collection.

    Only servicing of collection rights changes.

    Once people get this, the consequence is BIG.”

  54. You are talking about yourself.

  55. “Except that judges have been told to never dismiss a foreclosure with prejudice.”

    What a crock! For anyone looking to verify that blatant and unfounded generalization, type in “foreclosure cases dismissed with prejudice” and you’ll get pages and pages of such cases, in which the homeowner won and the bank lost. Just because someone unqualified to make such a statement still goes ahead and makes it without anything to back it up doesn’t make it true.

    If anyone if seriously contemplating fighting a foreclosure, consider your sources very carefully. Lots of BS published on this site… and always by the same people who either failed to fight and walked away from perfectly defensible cases or don’t even have a case going but have a morbid, narcissistic need to read their own prose.

  56. @carie
    So maybe as we show the criminality of it all because scienter is present and can be seen by the record that they knew what they were doing including but not limited to fraud upon the court.,.
    But you know karma It’s coming it’s definitely coming and god sees all. Can’t run can’t hide
    No excuses you play you pay you cheat you lie you continue to take unjustly you pay back .

  57. Good stuff, sent it to my attorney. Hope he listens.

  58. “if you you can make it bleed, you can kill it.”

    Except that judges have been told to never dismiss a foreclosure with prejudice.

  59. I’m so happy after that 9th circuit rubbish
    So happy about this.

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