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HomeMy WebLinkAbout949017Recording requested by and when recorded, mail to: BRANDON T. BENTLEY 1716 EAST BURNING OAK DRIVE DRAPER, UTAH 84020 RECEIVED 8/19/2009 at 3:33 PM RECEIVING # 949017 ORIGINAL RECORD: BOOK: 730 PAGE: 234 Entry 5 JEANNE WAGNER Book/Page ge # #702/670 Date Recorded: 8/20/08 LINCOLN COUNTY CLERK, KEMMERER, WY ParcelTax/APN No. 100085200641042199 Legal Description: LOT 101 OF VALLI-VU GOLF VILLAS, AN ADDITION TO THE TOWN OF AFTON, LINCOLN COUNTY COURTESY NOTICE OF CANCELED CONTRACT On 08/06/2009 and via the instrument entitled NOTICE OF FAULT, FIRST HORIZON HOME LENDER was given due NOTICE OF RIGHT TO CANCEL & RESCIND by BRANDON T. BENTLEY. A consumer has the right to cancel and/or rescind any/ all contracts and any/all security interests appertaining thereto as a result of fraud, fraudulent inducement, concealment, and fraudulent misrepresentation. There is no statute of limitations on rescinding a contract for fraud as fraud vitiates all contracts. To date, FIRST HORIZON HOME LENDER has never disclosed all the material facts' related to the transaction in question, nor provided BRANDON T. BENTLEY with true, complete, accurate, and timely documentation of the same. The record thus far evidences significant disclosure violations which, alone, sufficiently qualified BRANDON T. BENTLEY to cancel the CONTRACT/ NOTE and TRUST DEED referenced herein thereby allowing the rescission, revocation, and renunciation of all signatures on said instrument making it null and void ab initio, nunc pro tune. Additionally, the purported CONTRACT/ NOTE and TRUST DEED referenced herein was obtained and acquired from BRANDON T. BENTLEY by wrongful acts of fraud, fraudulent inducement, concealment, and fraudulent misrepresentation, giving BRANDON T. BENTLEY absolute recourse, right, and cause of action under numerous state and federal laws.' Therefore, based on the aforementioned discovery of facts proving that a fraud was intentionally perpetrated upon BRANDON T. BENTLEY by FIRST HORIZON HOME LENDER, it was BRANDON T. BENTLEY 's duty to promptly, unconditionally, and invasively rescind said contract.' Due to the fraudulent nature of the transaction in question, BRANDON T. BENTLEY had no obligation under CONTRACT/NOTE and TRUST DEED appertaining thereto. Consequently, FIRST HORIZON HOME LENDER and any/all successors, assigns, beneficiaries, trustees, and/or substitutes, known or unknown, are NOT entitled to remuneration or recourse from BRANDON T. BENTLEY with regards to the instant matter due to the fact that, collectively and/or severally, said parties have realized compensatory consideration from said fraudulent transaction through selling, trading, converting, hypothecating, and/or collateralizing said CONTRACT/NOTE and TRUST DEED. Consequently, the CONTRACT/ NOTE and TRUST DEED in question is thereby satisfied in full. As a result of the foregoing, the CONTRACT/ NOTE and TRUST DEED in question is has been FULLY CANCELED, and any security interest or lien appertaining thereto has been automatically voided and FIRST HORIZON HOME LENDER et al., has agreed and acknowledged this fact by its silence. I Where a relationship of trust and confidence bound in good faith exists between two parties, there is a duty to disclose all material facts. Damages and actionable fraud exist when one conveys a false impression by disclosure of some facts and the misrepresentation and concealment of others. State v. Coddington, 662 P.2d 155,135 Ariz. 480. (Ariz App. 1983); Leigh v. Loyd, 244 P.2d 356,74 Ariz. 84- (1952); Morrison v. Acton, 198 P.2d 590,68 Ariz. 27 (Ariz. 1948); Van Buren v. Pima Community College Dist Bd., 546 P.2d 821,113 Ariz. 85 (Ariz. 1976); Regan v. First National Bank, 101 P.2d 214, 55 Ariz. 320 (Ariz 1940); Stewart v. Phoenix Nat. Bank, 64 P.2d 101, 49 Ariz. 34- (Ariz. 1937); Universal Inv. Co. Sahara Motor Inn, Inc., 619 P-2d 485,127 Ariz. 213- (Ariz. App. 1980). ' Acts of fraud taint/void everything they touch as the US Supreme Court has declared: "There is no question of the general doctrine that fraud vitiates the most solemn contracts, documents, and even judgments." (United States v. Throckmorton, 98 U.S. 61). "Where a party desires to rescind upon the grounds of mistake or fraud he must upon the discovery of the facts, at once announce his purpose, and adhere to it." Grymes v. Saunders, 93 US 55, 62. 3,, If they proposed to rescind, their duty was to assert that tight promptly, unconditionally, and invasively." Richardson v. Lowe, 149 Fed Rep 625,627-28. ICC # BB/FIRST HORIZON 4219 06/18/2009 COURTESY NOTICE OF CANCELED CONTRACT, AFFIDAVIT OF FACTS PAGE 2 OF 8 Additionally, due to FIRST HORIZONHOME LENDER's failure to perform its lawful duties after NOTICE was given of the intent to. cancel, FIRST HORIZON HOME LENDER agrees to, grants, and conveys a self-executing power of attorney to BRANDON T. BENTLEY in order to fulfill, execute,. and enforce any steps necessary to rectify any/ all negative effects of the canceled/ rescinded fraudulent CONTRACT/ NOTE and TRUST DEED referenced herein. Respectfully submitted under my hand Without Prejudice and with All Rights Reserved, By: BRANDON T.. ENTLEY AFFIDAVIT OF FACTS "Indeed, no more than [such affidavits are] necessary to make the prima face case." United States v Kis, 658 F.2nd 526, 536 (7th Cir.1981) Cert Denied, 50 U.S. L. W. 2169, S. Ct March 22nd 1982. The unchanging principles of Commercial Law are: 1. All have equal protection under the law. 2. In Commerce, truth is sovereign. 3. Truth is expressed in the form of an Affidavit. 4. An un-rebutted affidavit stands as truth in Commerce. 5. An un-rebutted affidavit becomes a Judgment in Commerce. 6. All matters must be expressed to be resolved. 7. A lien or claim can be satisfied only through an affidavit by a point-for-point rebuttal, resolution by jury, or payment tendered. The requirements for a conscionable, valid, and binding contract are: 1. Offer by a Private Individual qualified to make the contract. 2. Acceptance by a Private Individual qualified to make and accept the contract. 3. Agreement, full disclosure, and complete understanding by both parties. 4. Valuable consideration given by both parties. 5. Agreed upon duration of term. 6. Both parties must be sui juris; that is, of lawful age,. usually 21 years old. LET IT BE KNOWN that BRANDON T. BENTLEY, (hereafter "AFFIANT"), affirms the following facts appertaining to the instant matter regarding FIRST HORIZON HOME LENDER (hereafter "BANK"). 1. THAT, AFFIANT was induced to believe by BANK's advertising, and further by certain officers/ employees of BANK, that BANK had money of its own to "loan" to AFFIANT and to others. 2. THAT, AFFIANT accepted BANK's offer to "loan" AFFIANT the BANK's money, and AFFIANT signed what appeared to be a CONTRACT/ NOTE dated August 15; 2008 based on the aforementioned inducement. 3. THAT, BANK did also induce AFFIANT to sign a TRUST DEED dated August 15, 2008, granting BANK a security interest in and a lien on certain- personal property of AFFIANT currently held, owned, or otherwise acquired. BANK caused AFFIANT to believe this TRUST DEED was necessary for BANK to protect and insure its valuable and lawful "consideration," ie., the "loaning" of BANK's money to AFFIANT as advertised and promised. 4. THAT, BANK did further induce AFFIANT into signing said TRUST DEED wherein BANK did cause other undeserving third parties to obtain a lien against, a security interest in, and complete control over the AFFIANT's personal property. Again, BANK led AFFIANT to believe this TRUST DEED and assignment was necessary to further secure BANK's valuable, lawful consideration against any potential "risk of loss" regarding "loaning" the AFFIANT the BANK's money. 5. THAT, at no time prior to AFFIANT signing of any the required "loan" and/or financial documents, and to this date, did BANK, nor any of its officers/ employees, assigns, et al.; ever fully described and categorized all of the underlying, undisclosed particulars, details, and principals of law regarding BANK's entire purported "loan" process, including, but not limited to, where the money came from to fund the NOTE, how it was obtained/ created, and by whom the purported "loan" was made. ICC # BB/FIRST HORIZON 4219 0611812009 COURTESY NOTICE OF CANCELED CONTRACT, AFFIDAVIT OF FACTS PAGE 4 OF 8 r~--P li)237 6. THAT, at no time prior to AFFIANT signing any of the "loan" documents, and to this date, did BANK, nor any of its officers/ employees, assigns, et al. ever disclose to AFFIANT the fact that the funding of the NOTE was being created/ obtained by and through AFFIANT's signature on AFFIANT's NOTE; the same NOTE which BANK, later arbitrarily and deceitfully claimed as its own, and then either sold, bargained, traded, hypothecated, and /or collateralized for BANK's own benefit and use. 7. THAT, by and through AFFIANT signing the fraudulent CONTRACT, NOTE, and TRUST DEED, BANK caused AFFIANT to believe that a binding, lawful contract was created between BANK, its officers/ employees, assigns, and beneficiaries et al., and AFFIANT. 8. THAT prior to, and at the time of AFFIANT signing all BANK's required financial instruments as instructed, AFFIANT was very unlearned and unsophisticated in such lending and financial practices, including a total lack of knowledge of all the various underlying, undisclosed details, particulars, and legal consequences pertaining to the same. To the contrary, AFFIANT relied wholly and entirely upon BANK, and its officers/ employees, to have "clean hands," and operate in good faith, and to thus provide AFFIANT with full, complete, and truthful disclosure of the entire financial transaction in question. 9. THAT BANK charged an undisclosed and usurious "interest rate" base on a "loan" amount that BANK didn't actually risk nor was based on real and valuable consideration and that all "principle" and "interest" paid to BANK were pure profit. 10. THAT, following the aforesaid financial transaction concerning BANK, AFFIANT studied and researched the above particulars regarding BANK's "loan" process from legitimate sources, including numerous publications from the various Federal Reserve Banks, and concluded that BANK did not, in fact, operate with clean hands nor in good faith, nor did BANK, nor any of its officers/ employees, provide full, complete and truthful disclosure of its underlying, undisclosed, and secret intentions. To the contrary, BANK's continued refusal to provide internal accounting records provided sufficient evidence to support the following conclusions: a) THAT BANK used acts of, but not limited to, fraudulent inducement, fraudulent misrepresentation, and fraudulent intent in its advertising and claim to have "loaned" its money to AFFIANT. b) THAT BANK did not fulfill its fraudulent promise/ agreement to lend AFFIANT its own money; BANK did not contribute anything of intrinsic value nor incur any risk/ loss in the formation or outcome of the transaction and BANK, therefore, did not sacrifice nor contribute any valuable lawful consideration; and, thereby, could not, and did not, suffer any loss, damage, or injury. c) THAT BANK arbitrarily and discretely stole AFFIANT's NOTE, claimed it as its own, and converted it to a negotiable instrument for BANK's sole benefit, use, and gain. d) THAT BANK further compounded its predatory, wrongful, and fraudulent actions by inducing AFFIANT to sign an unconscionable TRUST DEED, thereby, granting additional third parties undeserving control, benefit, and interest in AFFIANT's personal and real property all under the guise of "necessity." e) THAT without being fully and truthfully informed and disclosed as to ALL the details of the purported "loan," and the underlying disingenuous intentions of BANK, there could not be, and was not, a "meeting of the minds." f) THAT the fraudulent CONTRACT, NOTE, and TRUST DEED created by BANK and any of its officers/ employees, assigns, et al. and signed only by AFFIANT does not constitute a lawful binding contract due to BANK's acts of nonfeasance, misfeasance, and malfeasance as more particularly outlined above; and that any such purported "contract" would be unconscionable and is void ab initio. 11. THAT, as confirmed above and throughout, BANK defaulted on its fiduciary responsibility to AFFIANT by refusing to provide full, complete, truthful, and accurate disclosures, regarding all financial instruments AFFIANT was compelled to sign, while blatantly obsfucating the true nature and exact particulars of BANK's entire "loan" process, to wit: ]CC # BB/FIRST HORIZON 4219 06/18/2009 COURTESY NOTICE OF CANCELED CONTRACT, AFFIDAVIT OF FACTS PAGE 5 OF 8 tt 23 a) THAT BANK refused the good faith willingness of AFFIANT to satisfy BANK's fraudulent claim by providing a proof of claim. b) THAT BANK refused to respond POINT FOR POINT to AFFIANT's requests for information and substantiating documentation via a non-judicial administrative process, thereby failing to substantiate a valid claim against AFFIANT with regards to the "loan" in question. 0. THAT BANK refused to provide requested contact information for the Private Individual who would serve as principal and alleged damaged party in this matter, and who via sworn written affidavit, under full commercial liability, signing under penalty of perjury that the facts of the matter were true, correct, complete, and not misleading, was competent to testify, had personal knowledge of the "loan" in question, was the real party in interest, and was able to represent BANK and bind it in the settlement of this matter. d). THAT BANK refused to explain why AFFIANT was the only Private Individual to sign the agreement and yet BANK still believed this unilateral contract was valid and binding. e) THAT BANK refused to provide requested evidence that the fraudulent CONTRACT, NOTE, and TRUST DEED between BANK and AFFIANT met the requirements of a balid, binding, bilateral contract. f) THAT BANK refused to rescind, revoke, and cancel any and all authority and/or instructions to third parties assigned to collect on this fraudulent and unsubstantiated debt as per U.S.C. Title 15. This included, but was not limited to, the foreclosure of any security interest believed to be associated with this alleged debt. g) THAT BANK refused to provide the requested VERIFIED invoice (true bill in commerce) evidencing a claim bearing the blue, wet-ink signature of the private individual requested to stand as principal for BANK and declare the invoice true and correct under penalty of perjury. h) THAT BANK refused to provide the requested VALIDATED copy of ALL account statenients and general ledgers (GAAP compliant). appertaining to this "loan" evidencing that BANK had, in its possession prior to the contract date, the very funds that it "loaned" to fund the "loan" in question. i) THAT BANK refused to provide the requested evidence demonstrating that the source of funds "loaned" to AFFIANT were those of BANK's derived from commerce, or those of its depositors as they claimed. j) THAT BANK refused to provide the requested verified explanation and substantiating evidence that BANK 1) was put at risk as a result of the "loan" in question, 2) offered valuable consideration for the "loan" in question, and 3) would incurred "damages" if payments were no longer credited to the "loan" in question. k) THAT BANK refused to provide the requested original, unaltered, unmarked NOTE bearing AFFIANT's wet ink signature, demonstrating that BANK was the actual holder in due course of said NOTE and, therefore, had the right to collect upon it. In good faith, BANK was informed that prior to AFFIANT's personal inspection, AFFIANT would accept a color copy (front and back) of the note bearing the blue, wet- ink signatures of the contracting parties, yet BANK failed to do so. 1) THAT BANK refused to provide requested information as to where in the contract alteration of the NOTE was an agreed upon term. m) THAT BANK refused to provide requested information as to where in the contract the monetization/conversion of AFFIANT's NOTE/CREDIT/SIGNATURE was a disclosed and agreed upon term. n) THAT BANK refused to provide the requested information and substantiating documentation as to 1) where in the contract the securitization of the NOTE was fully disclosed as an agreed upon term, 2) the amount of monetary gain BANK realized by securitizing the NOTE in question, 3) if the proceeds of the securitization of NOTE was credited to the "loan' in question, and, if not, why BANK had the lawful right to realize profits from said security, and 4) who was the current holder in due course. ICC # BB/FIRST HORIZON 4219 06/1812009 COURTESY NOTICE OF CANCELED CONTRACT, AFFIDAVIT OF FACTS PAGE 6 OF 8 o) THAT to this date, BANK, or any of its agents, assigns, or beneficiaries et al., have failed to provide any bona fide, tangible evidence that any of the aforementioned parties are, in fact, the bona fide holder in due course (nor even a holder of value) and bona fide owner of the NOTE in question, all of which would be necessary in order to initiate ANY form of collection action or foreclosure proceeding. 12. THAT AFFIANT did spend additional time researching several particulars regarding BANK's entire "loan" process as outlined above, and became further perplexed. If BANK had indeed given full, complete, accurate,. and truthful disclosure regarding all elements of its "loan" process, as set forth above and throughout; and did, in fact, provide valuable, bona fide consideration, and did, in fact, believe BANK created a lawful, binding contract with AFFIANT, then why didn't BANK's officers/representatives/beneficiaries sign their naive on the NOTE? The same applies to the TRUST DEED. If BANK knew it was not involved in any manner of fraudulent inducement, misrepresentation, concealment, or unjust enrichment, and did, in fact, have a bona fide legal contract with the AFFIANT, sufficient to prevail in a foreclosure action if need be; then why did BANK feel it necessary to have a TRUST DEED created, wherein, BANK did cause complete control of the purported "loan/ note" to be turned over to an undeserving third party, who, in turn, never put their signature to the instruments in question? In consideration of all the above statements and findings, it is only reasonable to conclude that BANK knew full well that it had defrauded AFFIANT from the outset as to the true nature and undisclosed rudiments of the entire "loan" process, and was not receptive to further implicating and/or incriminating itself by signing its name to the documents that BANK knew were fraudulent, full of lies, unfulfilled promises, secret intentions, inducement, entrapment, and unjust enrichment. 13. THAT it is unlawful for BANK to fraudulently obtain or steal another's property, claim it as their own, and then further bargain, assign, or sell the same to obtain an unjust enrichment, benefit, and gain for themselves, all at a loss and detriment to the lawful, bona fide owner. 14. THAT, in this case, the original NOTE in question is, and always was, the property of AFFIANT, and that AFFIANT did not knowingly or otherwise assign, transfer, allow the sale of, or give the NOTE away for another 's benefit and gain, especially to the loss and detriment of AFFIANT. 15. THAT BANK refused the opportunity to remedy the fraudulent CONTRACT, NOTE, and TRUST DEED in question thereby vitiating said contract ab initio. 16. THAT BANK disregarded AFFIANT's NOTICE OF RIGHT TO CANCEL and allowed said NOTICE to expire without contest or rebuttal, thereby accepting said NOTICE unconditionally and executing it in FULL FORCE. Notwithstanding BANK's unconditional acceptance of AFFIANT's RIGHT TO CANCEL, BANK continues to pursue collection activities against AFFIANT's property unlawfully. LET it be known that BANK, and any of its officers, agents, assigns, or beneficiaries, et al. have failed to provide any evidence in contradiction to the matters set forth above and throughout. Accordingly, the record hereby establishes that all aforementioned facts, statements, determinations, and related Attachments/ Exhibits (which are incorporated herein in their entirety) are entirely true and remain un-rebutted and uncontroverted. IN CONCLUSION, due to additional research, further understanding, and for all of the reasons set forth above, and throughout this Affidavit, all of which the AFFIANT incorporates herein in its entirety and by reference, AFFIANT has cause to believe that the fraudulent CONTRACT/ NOTE referenced herein and other such instruments entered into between AFFIANT and BANK and any and all of its agents, assigns, and beneficiaries have no legal force or binding effect, and the same are in fact - Null and Void - ab initio and nunc pro tune. Therefore, FIRST HORIZON HOME LENDER and any/ all successors, assigns, beneficiaries, trustees, and/or substitutes, known or unknown, are not entitled to further remuneration or recourse from BRANDON T. BENTLEY with regards to this instant matter due to the fact that, collectively and / or severally, said parties have realized sufficient consideration from said fraudulent transaction through selling, trading, hypothecating, and/or collateralizing the CONTRACT /NOTE. Consequently, the CONTRACT/ NOTE in question is thereby satisfied in full and FIRST HORIZON HOME LENDER et al., agrees and acknowledge this fact forthwith. ICC # BB/FIRST HORIZON 4219 06/1812009 COURTESY NOTICE OF CANCELED CONTRACT, AFFIDAVIT OF FACTS PAGE 7 OF 8 ICC# BB/FIRST HORIZON 4219 06118/2009 COURTESY NOTICE OF CANCELED CONTRACT; AFFIDAVIT OF FACTS ® s o e o °b , MW ~ u. i~ ~ 0282 ~~.tr~~ ~1,5G E3 Refum R~c~ pt Frn:> 0 Hera ` (Fndors9mentFiaguirod) OP00•_ ED Reetdctcd Delivery ae 1 r-9 (I'rtdorsentcnt Raguire Fc d) . m Total PI 1 Feos 08/06/2449 i C3 H• 0 - 0 ' iP e•• I $1.56 0M' m r'odliled Fee 07 Foe"mI C3 Q O Return Fier®i, t NO (rommeraseq'ur~rd) $0.00 - Here F'ie~lilf.'tfiLt M'.".,SiVOi`~v Fee (EgrrtmMontFtecnlrac) ~ P r' V ra m Postage a roes -real ara_ 5 08/06/2049 C Lrl "wri-In ~~Ae . r q r- ~b W ~I m C3 s• o w 7 Postings S1 56 m C'.erdf od Fee . c r" 07 p C3 RetumReceipt Fee (Endarsemei, Required) f~tsfrrc~et~ ~ Hem, , p Restricted Oeiivery Fee rl (Endowment Requited) r9 M fatal I~astag~ Fa®~ 08/46/2449 4 C3 ~Rnr ~d ~j 1 T11 Bye , or PO cXE~FB®% No, S+, 1 I In 1 . 6a1.4V ~rfr:2v~s~t~~!.. P ru tti {,piLM r` r~Q~tag~ : $1.56 C3 CorUnad Fes C3 F dp f~ d sAnt uti PostnSad ; e wRsrE+ 4 rr r a ( n eq Q. C3 Restrlcted Delivery Fee rq (Endgrse'nrent Required) 0 ; m -total Postage & Fees 08/06/ ' . IM 'sdt d or Foe BoxM / ►i `,e' 0%ft'r +Sf3z t~v C(fat~t PROOF OF SERVICE C 9~.+1g' I, Shannon Chris Connelly, the undersigned, am an inhabitant of the state of Utah, one of the united ~ ^~24, America, and was at the time of service of the papers herein, over the age of 18 and not a party to he action f herein. My mailing address is: 10249 S Ashley Hills Circle Sandy, UT 84092 On the date indicated below, I served the following document(s): COURTESY NOTICE OF CANCELED CONTRACT AFFIDAVIT OF FACTS on the parties in this action addressed as follows: WILLIAM C. LOSCH III FIRST HORIZON HOME LENDER 165 MADISON MEMPHIS,, TENNESSEE 38103 CERTIFIED MAIL # 7008 1830 0000 9002 6999 DANETTE BALDACCI CASTLE, MEINHOLD & STAWIARSKI LEGAL SERVICE, LLC. 330 S. WALSH DRIVE, STE. 202 CASPER, WY 82609 CERTIFIED MAIL # 7008 1830 0000 9002 7033 MERS INC. c/o Registered Agent, PO BOX 2026 FLINT MI 48501 CERTIFIED MAIL # 7008 1830 0000 9002 7002 FNMA c% Registered Agent, 2 Galleria Tower, Suite 950 13455 Noel Rd Dallas TX 75240 CERTIFIED MAIL # 7008 1830 0000 9002 7026 FIDUCIARY ALLIANCE TITLE AND ESCROW 71 US HIGHWAY 30 N KEMMERER, WY 83101 CERTIFIED MAIL # 7008 1830 0000 9002 7019 WILLIAM C. LOSCH III FIRST HORIZON HOME LENDER 165 MADISON MEMPHIS, TENNESSEE 38103 CERTIFIED MAIL # 7008 1830 0000 9002 6999 on behalf of BRANDON T. BENTLEY 184 JOHNNY MILLER DRIVE AFTON, WY 83110 executed on AUGUST 6, 2009 at: UNITED STATES POST OFFICE ALTA CANYON STATION SANDY, UT 84093 I declare under the penalty of perjury under the laws of the state of Utah that the foregoing is true and correct and I affix my signature to this document and the affirmations herein. b: S nnon Chris Connelly 10249 S Ashley Hills Circle Sandy, UT 84092