CASE NO.

09-636-C277

Alvie Campbell and Julie Campbell, § IN THE DISTRICT COURT OF

Plaintiff, §
§
V. §
§
Wells Fargo Home Mortgage e.t.a.l., § WILLIAMSON COUNTY, TEXAS
And John Doe 1-100 §
Defendants, §
§
§
§ 277th JUDICIAL DISTRICT
§

PLAINTIFF'S RESPONSE TO DEFENDANT WELLS FARGO

MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Plaintiffs, Alvie Campbell and Julie Campbell, and requests this Honorable

Court to DENY the Motion for Summary Judgment of Wells Fargo Home Mortgage (“Wells

Fargo”) “Defendant” as follows:

I.

INTRODUCTION

I.General Denial - Plaintiffs hereby enters a general denial as permitted by Rule 92 of the Texas

Rules of Civil Procedure, and requests that Defendants be required to prove by sworn affidavit and

by a preponderance of evidence: a.) that their allegations are truthful representations; b.) that their

action has merit; c.) that they are the true and lawful party in interest - the holder in due course of a

valid debt obligation signed by Plaintiffs Alvie Campbell and Julie Campbell; d.) that their alleged

evidence is not a product of or prelude to fraud, e.) That “Wells Fargo” has violated the Texas

Response to Motion for Summary Judgment 1

Finance Code, (“Furnishing False Credit information”, “Debt Collection”) and the Fair Debt

Collections Practices Act, f.) That they have initiated “foreclosure proceedings in the past, g.) and

that they have legal standing to lawfully invoke the jurisdiction of this honorable court.

A. When a movant files a motion for summary judgment based on summary judgment

evidence, the court can grant the motion only when the movant’s evidence proves, as

a matter of law, all the elements of the movant's cause of action or defense, or

disproves the facts of at least one element in the non-movant's cause or defense.

Casso v. Brand, 776 S.W. 2d 551, 556 (Tex. 1989).

B. When evaluating a motion for summary judgment, the court must:

1. Assume all the non-movant's proof is true1;

2. Indulge every reasonable inference in favor of the non-movant2; and

3. Resolve all doubts about the existence of a genuine issue of material fact

against the movant.3

II.

Objections to Summary Judgment Evidence

Plaintiff Objects to the summary evidence filed by Defendant, particularly to the affidavit

of Michelle Baldasanno (“Affiant”), for the following reasons: (See Exhibit “A”)

1. The affidavit fails to meet the requirements of a business records affidavit, specifically

omitting the various elements under TRE 803(6), and as such the various exhibits attached

1
Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Specialty Retailers, Inc. v. DeMoranville, 933
S.W.2d 490, 491 (Tex. 1996).

2
Specialty Retailers, 933 S.W.2d at 491; Nixon v. Mr. Property Mgmt. Co., Inc.,690 S.W.2d 546, 549 (Tex. 1985).

3
Science Spectrum, 941 S.W. 2d at 911; Walker v. Harris, 924 S.W2d 375,377 (Tex. 1996).

Response to Motion for Summary Judgment 2

 to the affidavit are hearsay.

2. The affidavit fails to attest that the Affiant has personal knowledge of the execution of the

documents, or that the Affiant attended the closing or otherwise saw Plaintiff execute the

documents, and therefore the Affiant cannot attest that the records attached to the affidavit

are true and correct copies of any document allegedly signed by the Plaintiff. As such, the

documents are not properly authenticated, and Plaintiff objects to the same.

3. The affidavit fails to state whether the Affiant personally examined the ink-signed

ORIGINAL of any of the attached documents and as such cannot state whether the copies

attached are true and correct copies of the ink-signed ORIGINAL of the various documents

attached to Defendant’s motion. As such, the documents are not properly authenticated, and

Plaintiffs objects to the same.

4. Plaintiff objects to Affiant’s statement that Wells Fargo is the holder of the Note, for the

reason that Affiant has never testified that Wells Fargo is in possession of the ink-signed

Original Note, or that Affiant has ever seen the ink-signed Original Note. In addition, the

purported copy of the note attached as an exhibit to Defendant’s motion does not bear any

endorsement. Absent an endorsement, the original payee American Mortgage Network

remains the owner and holder of the note. Plaintiff has reason to believe that the ink-signed

Original Note has been securitized, in which case the document custodian for the

securitizing entity or for the certificateholders of such securities would be the proper party to

authenticate the note, not Wells Fargo. Plaintiff has not yet completed discovery in this

case, so it would be premature to grant Defendant’s motion at this time.

Response to Motion for Summary Judgment 3

 III.

ARGUMENTS AND AUTHORITIES

We must first look at extremely basic law regarding “Negotiable Instruments” and “Security

Instruments.” Everyone knows that a “Negotiable Instrument” may stand alone and does not have

to be secured. It can be bought, sold, or transferred as long as it is done so properly. The “Security

Instrument” (the “Deed of Trust”) is merely an instrument which if filed of record places everyone

on notice that there is a lien on certain property (real estate) to enforce collection of monies to pay

the indebtedness evidenced by the “Negotiable Instrument.” The “Security Instrument” (Deed of

Trust) cannot be sold, it attaches to the property and only follows the “Negotiable Instrument.” If

the Original “Negotiable Instrument” does not exist, has not been sold or transferred properly, or is

merely a copy, whether electronically or otherwise, the “Security Instrument” Deed of Trust is

invalid and cannot be enforced because it cannot exist without the “Negotiable Instrument.”

Texas Business and Commerce Code Section 3.301 states that a Person entitled to enforce

the Instrument (Negotiable Instrument) is either the Holder of the Instrument or a non holder in

possession of the instrument who has the right of a holder. These Promissory Notes are leveraged,

bought, sold, and placed in public offerings as part of a pool of thousands of loans, and each one is

sold in fractionalized parts to hundreds of investors on Wall Street, sometimes all of the above. So,

the “obligor” has a right to see the ink-signed Original Note in its current state so as to determine

who the actual Holder is (or is not).

Texas case law supports the requirement to produce the ink-signed Original Note. It is well

established Texas Law that in order to recover on the Original Note, four requirements must be

established: (1) the existence of the note in question; (2) that the borrower signed the note; (3) that

the person or entity who wants to enforce the note is the legal owner and holder of the note; and (4)

Response to Motion for Summary Judgment 4

that a certain balance is due and owing under the note. Scott v. Commercial Services of Perry, Inc.,

121 S.W.3d 26 (Tex. App. - Tyler, 2003).

In Geiselman v. Cramer Financial Group, Inc., 965 S.W.2d 532 (Tex. App. - Houston [14th

Dist.] 1997), the court held that the plaintiff was not the “Holder” of the note where the Plaintiff did

not have possession of the Original Note. Also in Western Nat. Bank v. Rives, 927 S.W.2d 681

(Tex. App. - Amarillo, 1996), reh'g denied, 1996 Tex. App. LEXIS 3651 (1996), the court held that

if the plaintiff does not possess the note, then the plaintiff is not the holder and cannot enforce the

obligation. In Gar-Dal, Inc. v. Life Ins. Co. of Virginia, 557 S.W.2d. 565 (Tex. Civ. App.

Beaumont 1977), the court said that any number of persons may possess photocopies of a note

complete with photocopied signature; however, only the person (or entity, emphasis added) who is

the present owner and holder who is in possession of the original can be entitled to enforce it.

Texas courts have thus explained the inseparability of ownership of a mortgage note and the

deed of trust securing that note:

The executed contract of mortgage . . . is an incident of the instrument assured; and if

that is negotiable and is transferred according to the law merchant, the mortgage
passes with it, ipso facto, without assignment in words . . . .); Perkins v. Sterne, 23
Tex. 561, 563 (1859) ("Even in the case of a note made payable to A., or bearer, and
transferable by delivery, without endorsement, any holder of such note could avail
himself of the security afforded by a mortgage executed to secure its payment,
because the mortgage, as an incident, would follow the note into the hands of every
holder."); Lawson v. Gibbs, 591 S.W.2d 292, 294 (Tex. Civ. App. 1979), writ ref'd
n.r.e.) ("The mortgage of the property is an incident of the debt; and as long as the
debt exists, the security will follow the debt.")

J.W.D., Inc. v. Federal Ins. Co., 806 S.W.2d 327, 330 (Tex. App.–Austin 1991). Consistent with

those principles, the Eastland Court of Appeals set out the standards very plainly for making

findings regarding a mortgage note:

Response to Motion for Summary Judgment 5

 The "holder" of a negotiable instrument is defined in TEX. BUS. & COM. CODE
ANN. § 1.201(20) (Vernon Supp.2003) as:

[T]he person in possession if the instrument is payable to bearer or, in the case of
an instrument payable to an identified person, if the identified person is in
possession.

TEX. BUS. & COM. CODE ANN. § 3.201 (Vernon 2002) provides in part:

(a) "Negotiation" means a transfer of possession, whether voluntary or

involuntary, of an instrument by a person other than the issuer to a person who
thereby becomes its holder.

(b) Except for negotiation by a remitter, if an instrument is payable to an

identified person, negotiation requires transfer of possession of the instrument and its
endorsement by the holder.

In Jernigan v. Bank One, Texas, N.A., 803 S.W.2d 774, 777 (Tex.App. -Houston
[14th Dist.] 1991, no writ), the court recognized that, under certain circumstances, a
promissory note can be transferred without a written assignment or proper
endorsement. The court held:

Promissory notes can be transferred lawfully without a written assignment or an

endorsement by the legal owner or holder. Waters v. Waters, 498 S.W.2d 236, 241
(Tex.Civ.App.-Tyler 1973, writ ref'd n.r.e.); see also Christian v. University Federal
Savings Association, 792 S.W.2d at 534. Absent an endorsement, however,
possession must be accounted for by proving the transaction through which the note
was acquired. Tex. Bus. & Com.Code Ann. § 3.201(c), Comment 8 (Vernon 1968);
Lawson v. Finance America Private Brands, Inc., 537 S.W.2d at 485. Appellee has
presented no proof of any transfer that would vest in it ownership rights sufficient to
enforce payment of the note. See Northwestern National Insurance Company v.
Crockett, 857 S.W.2d 757, 758 (Tex.App.-Beaumont 1993, no writ).
Shepard v. Boone, 99 S.W.3d 263, 265-266 (Tex.App. - Eastland 2003).

FACTS

1. Plaintiff do not deny they owe a debt to American Mortgage Network. Plaintiffs Deny that

the “Debt Collector”, Defendant, has the rights, to utilize the “Power of Sale” Clause, in the

Security Instrument.

Response to Motion for Summary Judgment 6

 2. On or about, October, 2004 The Plaintiffs(“Borrower’s”) and American Mortgage

Network(“Lender”),entered into negotiation with a Negotiable Instrument(“Note”). The

Plaintiffs(“Borrower’s”), by executing that negotiable instrument, and this negotiable instrument,

at the beginning of the “Borrowers” negotiation was to be a secured debt, by the execution of the

security instrument and the negotiable instrument together assigning Account # 204-0769205 to

this Secured debt. (See Exhibit “B” - Note)

3. The negotiable instrument and the security instrument combined create a secured debt.

4. This security instrument, giving notice of a secured debt, being memorialized, willfully,

voluntarily, and as required by Texas Local Government Code 192.001, into Williamson County

Public Records as Instrument # 2004086763. (See Exhibit “C” – Deed of Trust)

5. These two “instruments”, negotiable instrument(“note”) and security instrument(“Deed of

Trust”), are inseparable without consequences.

6. At this point, the “Lender”, AMNET is the holder in due course (HIDC)

Texas Business and Commerce Code Article III,

§ 3.302. HOLDER IN DUE COURSE;(10)"Party" means a party to an instrument.)

7. Sometime in December, 2004, Defendant, Wells Fargo, came along and provided Plaintiffs

with a new account number, #495-7111138, and mentioned they are now the new mortgage

servicer. We assume this is ok. We started making payments to them. Wells Fargo Home

Mortgage identified themselves as the mortgage servicer.

8. They are not a “party” to the “instrument” which Plaintiffs negotiated the Secured debt.

Texas Business and Commerce Code Article III,

(§ 3.302. HOLDER IN DUE COURSE;(10)"Party" means a party to an instrument.)

PROPERTY CODE
TITLE 5. EXEMPT PROPERTY AND LIENS -SUBTITLE B. LIENS
Response to Motion for Summary Judgment 7
 CHAPTER 51. PROVISIONS GENERALLY APPLICABLE TO LIENS
(3) "Mortgage servicer" means the last person to whom a mortgagor has been instructed by the
current mortgagee to send payments for the debt secured by a security instrument. A mortgagee
may be the mortgage servicer. At this point, (“Borrower’s”)Plaintiffs do not know whether the
Debt is secured or unsecured. This is very important.

BIFURCATION or SEPERATION of the NEGOTIABLE INSTRUMENT and

SECURITY INSTRUMENT, or DESTRUCTION OF A SECURED DEBT

9. On or about September, 2008, Instrument #2008075222(See Exhibit “D”–

Transfer/Assignment), filed in Williamson County Public Records, as a “Notice of

Assignment of Note and Deed of Trust”, which memorialized a transfer/assignment of a

security instrument from Mortgage Electronic Registration Systems(“MERS”) to Wells

Fargo Bank, N.A. These “Parties” were not the “original parties involved” in Instrument

#200408763(“Exhibit “B”-Deed of Trust) memorialized on or about November, 2004, and

have provided no proof to show they had any rights to make the transfer/assignment.

10. According to Texas Local Government Code, Title 6. Records, Subtitle B. County

Records, Chapter 192. Instruments to be Recorded by Counties, Sec. 192.007. Records of

releases and other actions, neither the intrusive non-party, thirds parties, “MERS” or

defendant Wells Fargo Bank, N.A. have not proved they are “Owner/Holder” or “Holder in

Due Course” (HDIC).(See Exhibit “E” – “May/Must”)

11. The filing and recording of #2008075222(Exhibit “D”- Transfer/Assignment), in

Williamson County Publics Records is fraud upon public records. The “assignor”,

“MERS” was not the Owner/Holder or Holder in Due Course (HDIC) of the Negotiable

Instrument and therefore lacked the legal authority to make such "Assignment".

Response to Motion for Summary Judgment 8

 12. The secured debt is the combination of the negotiable instrument which is Secured by the

security instrument.

13. The secured debt, memorialized, on November 4, 2004, by the Security Instrument(“Deed

of Trust”), in Williamson County Public Records as Instrument # 2004086763(See Exhibit

“C” – Deed of Trust), does identify, “MERS as Nominee” but is not a proper party to

record Instrument #2004086763 into public record, “MERS” has not and could not perfect

the proper negotiation of the negotiable instrument to achieve such rights as Owner/Holder

of the negotiable instrument as MERS never had Beneficial rights in the Negotiable

Instrument.

14. According to Instrument #2008075222(Exhibit “C”- Transfer/Assignment), memorialized

in Williamson County public records, on September 30, 2008, “MERS”, without having a

beneficial ownership rights in the negotiable instrument, Assigned the security to a 3rd

party.

15. “It is the actions of “MERS” “Assignment of the Deed of Trust” that offers to the courts,

the proof required to show Bifurcation or Separation of the negotiable instrument from the

security instrument which has rendered the Security Instrument a nullity. Texas Property

Code § 13.001. validity of unrecorded instrument. (a) A conveyance of real property or an

interest in real property or a mortgage or deed of trust is void as to a creditor or to a

subsequent purchaser for a valuable consideration without notice unless the instrument has

been acknowledged, sworn to, or proved and filed for record as required by law further

states the Security Instrument is Void as a direct result of Defendants failure to follow the

Texas Local Government Code 192.001 and 192.007 by failing to file instruments that

effect the filed Security Instrument.

Response to Motion for Summary Judgment 9

 16. “MERS” has now converted the secured debt into a non-secured debt.

17. This renders the power of sale clause contained within the security instrument out of reach

of the negotiable instrument as such security instrument a nullity.

18. Through this attempt of “transfer/assignment” of the secured debt, “MERS” has destroyed

the secured debt by bifurcation.

19. Although “MERS” or “Wells Fargo” may claim recordation of the “assignments” which

reflects the negotiation of the negotiable instrument, are not a required action in regards to

the Texas Business and Commerce Code and the Texas Property Code, both “MERS” and

“Wells Fargo” have failed to review the “security instrument”, section 14. (governing laws;

severability),” this security instrument shall be governed by federal law and the law of the

jurisdiction in which the property is located”.

20. The filing and recording of the “deed of trust” was a willful, voluntarily act of

filing/recording that was required by 3rd party contract, Title Companies, Fannie Mae,

Freddie Mac as examples. The Texas Property Codes states that they “MAY” and so they

did.

21. Both “MERS” and “Wells Fargo” failed to read the “Security Instrument” or understand

Section 14 of the “Security Instrument”, “Governing Law; Severability”. Texas Local

Government Code 192.007, states the following;

Sec. 192.007. RECORDS OF RELEASES AND OTHER ACTIONS. (a) To release,

transfer, assign, or take another action relating to an instrument that is filed, registered, or
recorded in the office of the county clerk, a person “must“ file, register, or record another
instrument relating to the action in the same manner as the original instrument was required
to be filed, registered, or recorded.
(b) An entry, including a marginal entry, may not be made on a previously made record or
index to indicate the new action. - Added by Acts 1989, 71st Leg., ch. 1248, Sec. 53, eff.
Sept. 1, 1989.
Response to Motion for Summary Judgment 10
 This neglect, the “alleged” Assignor, “MERS”, accomplished, the Deed of Trust became
Void.

TEXAS LOCAL GOVERNMENT CODE 192.001, states the following;

Sec. 192.001. GENERAL ITEMS. The county clerk shall record each
deed, mortgage, or other instrument that is required or permitted
by law to be recorded. - Acts 1987, 70th Leg., ch. 149, Sec. 1,
eff. Sept. 1, 1987.

22. “MERS”, nor “Wells Fargo”, (“Defendant”) have any legal authority to foreclose on

“borrower’s” real property, due to the separation or bifurcation, of the negotiable

instrument and the security instrument.

23. “Borrower’s” do not deny they owe a debt.

24. However, the rightful owner of the non-secured debt is not indentified and if a proper party

is every identified they may attempt to produce a judgement upon alleged debtor by

initiating legal collections against the “non-secured negotiable instrument”. They might be

able to achieve a money judgment but they cannot foreclose on the home.

VALIDITY OF FRAUDULENTLY CREATED DOCUMENTS

25. As noted in the transcript of the Meeting of the Task Force on Judicial Foreclosure Rules

November 7, 2007, (note pages 27, 28 and 33), as found on the Supreme Court of Texas

web site (http://www.supreme.courts.state.tx.us/jfrtf/pdf/110707transcript.pdf), makes

issue with, addresses and discloses the same fraudulent practices, Defendant alleges are

taking place in this instant case. (See Exhibit “F” - meeting )

26. Plaintiffs have therefore been required to expend time and effort to defend an action that

has no legal basis, in regards to the Secured Debt.

Response to Motion for Summary Judgment 11
 A Broken Chain of Assignments, renders the “Deed of Trust” void and unenforceable,

under UCC 3-201, 3-204 & 3-302, therefore no activation of the “Power of Sale” clause in

the “Deed of Trust” is allowed.

FRAUDULENT ATTEMPTS TOP COERCE “BORROWER’S” INTO AN

“AGREEMENT” (CONTRACT) TO COVER UP THEIR FRAUD

27. “Exhibit “D”, a “Special Forbearance Agreement” lacking signatures of the Plaintiff's, and

Defendants will not be able to provide any such signed agreement.

28. Plaintiff's never signed any Forbearance agreement as Defendant claimed and, supported

by the attached copy of the “Special Forbearance Agreement” lacking signatures of the

Plaintiff's. This evidence, filed, in the Motion for Summary Judgment in this court. This

statement was a blatant falsehood upon this court. (See Exhibit “G”- Special Forbearance)

29. Defendants have committed Fraud upon the Plaintiff’s and upon the court, by the very

same “Exhibit “G”, that states, on Page 3, mid-page, “Under the terms of this agreement,

the Campbell’s were required to make three monthly installments of $1,353.86 each. This

court should take notice that the “Special Forbearance Agreement” is a contract, bound by

laws of contract. Defendants are attempting Fraud upon the Plaintiff and upon court, by

intentionally failing to mention to the court, that there is a fourth payment in this contract,

of $30,024.56. Defendants are misleading both the Plaintiff’s and the court, into believing

there are only three payments.

TEXAS GOVERNMENT CODE – FRAUD UPON THE COURT

Response to Motion for Summary Judgment 12

 30. Defendants have intentionally failed to submit relevant foundational evidence to this court

in an attempt to cover up the truth and to fraudulently invoke the “Power of Sale” clause in

the Nullified Deed of Trust.

“CHARACTERS” IN THE FRAUDULENT ATTEMPT TO UTILIZE THE

“POWER OF SALE” CLAUSE IN THE “DEED OF TRUST” TO FORECLOSE ON

ITS VICTIMS

31. David Seybold identified on the face of the document as the signer on September 3, 2008

claims to be “Assistant Seceretary" for MERS”, in fact David Seybold, who memorialized

Instrument #2008075222, September 30, 2008, into Williamson County Public Records,

per The Texas Bar is a licensed attorney (Bar Card Number 18067000 ) for, Barrett,

Daffin, Frappier, Turner & Engel, LLP, 15000 Surveyor Boulevard, Suite 100, Addison,

Texas 75001 In Addison Texas and attested by Suzanne Stanley, Notary Public in the State

of Texas committed Fraud upon Public Records.

32. Steven C Porter identified on the face of the document as the signer claims to be “Vice

President of Loan Documentation”, for Wells Fargo Bank, N.A., in fact Steven C. Porter,

who memorialized Instrument #2008071378, on September 16, 2008, into Williamson

County Public Records, per The Texas Bar is a licensed attorney (Bar Card Number

16153300) for, Barrett, Daffin, Frappier, Turner & Engel, LLP, 15000 Surveyor

Boulevard, Suite 100, Addison, Texas 75001 In Addison Texas

33. Defendant has committed Fraud upon the Court by submitting such evidence, that is false.

34. Defendant has committed Fraud upon the Court by submitting such false evidence

35. Defendant has conspired to withhold pertinent information vital to show this SECURED

DEBT as claimed by Defendants is actually an Unsecured Debt. Defendants only suggest a

Response to Motion for Summary Judgment 13

 website for information, specifically requested, in a previous hearing before this court.(See

Exhibit “H” - Cover Letter from Hermes Sargent Bates)

36. Defendant and its “employees”, have violated the Texas Business and Commerce Code,

Texas Property Code, Texas Local Government Code, and The Texas Finance Code, and

the Fair Debt Collections Practices Act.

WELLS FARGO HAS INITIATED FORECLOSURE PROCEEDINGS IN THE PAST.

37. Defendant, “Wells Fargo”, has stated in Section “D” of the Traditional and No-Evidence

Motion for Summary Judgment, “Plaintiff’s cannot prove their wrongful foreclosure claim

because a foreclosure sale proceeding never occurred”. Defendants very own, Exhibit

“D”, clearly states, on page 1, mid-page, “We will instruct our foreclosure counsel to

suspend foreclosure proceedings” Defendants and their counsel have stated numerous

times in the Traditional and No-evidence Motion for Summary Judgment, Defendants have

never initiated foreclosure Proceedings, when in fact, they have. (See Exhibit “I” – Notice

of Trustee Sales) Defendants and their counsel are attempting fraud upon the court, by

withholding this information in their very own evidence, to sway the court to Order a

motion in Defendants favor.

38. On or about, September 8, 2008, Defendant, ”Wells Fargo”, Defendants Employee, Barrett

Daffin, Frappier, Truner & Engel (“BDFTE”), sent a letter to Plaintiffs, stating “BDFTE”,

sent a certified letter informing Plaintiffs, that “the loan was in default, and that foreclosure

proceedings have been initiated. The foreclosure sale date is November 04, 2008”. (See

Exhibit “J” – Notice of Trustee Sale).

39. The Defendants actions involving “MERS” has now rendered what was once a "Secured

Indebtedness" to be a "Unsecured Indebtedness".

Response to Motion for Summary Judgment 14
 FAIR DEBT COLLECTION PRACTICES

40. The Defendant, “Wells Fargo”, has violated the Fair Debt Collections Practices Act and

severely damaged Plaintiffs reputation, caused undue hardship.

41. Defendants have provided incorrect information to a 3rd parties in violation of the Texas

Finance Code, Title 5, and the Fair Debt Collection Practices Act. (See Exhibit “K” –

Letter to Mosser),

42. Defendants have continuously provided false and misleading information to the Credit

Reporting Agencies, during this live law suit. (See Exhibit “L” – Credit Report).

43. Defendant, Wells Fargo, claims they are not a debt collector are false and misleading.

Defendant, Wells Fargo, is in fact a debt collector, due to the nullity of the Security

Instrument, therefore, by their own devise, Wells Fargo is attempting to collect a Non-

Secured debt.

IV.

APPLICATION OF ARGUMENT AND AUTHORITIES TO FACTS OF THIS CASE

The Court must first examine the affidavit of Wells Fargo. Michelle Baldassano’s

affidavit(See Exhibit “A”- Affidavit of Michelle Baldassano) does not clarify what records were

reviewed, whether the records were an original, copies or on the computer, if said records were ever

in Defendant’s possession, and if she actually saw said records.

The copies of the documents to which Michelle Baldassano swore to in the Affidavit has the

following things incorrect:

1. The affidavit does not state that the Affiant has ever seen the Ink-signed Original Note,

or that Defendant are in possession of the note. Affiant’s statement that Wells Fargo is

the Holder of the note is a legal conclusion. Absent Defendant’s being in possession of

Response to Motion for Summary Judgment 15

 the ink-signed Original Note (not a copy), Defendant has no right to attempt to collect on

the note.

2. As sworn in the Affidavit, the Affiant does not clarify as to how she knows that

Defendant is the Holder of the note and that they actually have seen or been in

possession of any documents relating to said loan and any alleged default. Affiant does

not swear to be in a position to see any documents relating to Plaintiff.

CONCLUSION

When the Court takes into account the Statutes and Case Law and applies them to the facts

of this case and the documents relied on by the Defendant, it is clear why it is necessary for the

“Holder” who is authorizing the collection of the Note be required to prove they are the Holder of

the ink-signed Original Note. No such evidence exists.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that this Court deny

Defendant’s Motion for Summary Judgment, or order such other relief as may be appropriate.

Respectfully submitted,

By:
ALVIE CAMPBELL
Pro Se

By:
JULIE CAMPBELL
Pro Se

Response to Motion for Summary Judgment 16

 CERTIFICATE OF SERVICE

I certify that on _________________, 2010 a true and correct copy of Plaintiff's or

Defendant’s Response to Motion for Summary Judgment was served opposing counsel in
accordance with the rules.

________________________________________
Pro Se

Response to Motion for Summary Judgment 17

 CASE NO. 06-969-C277

Alvie Campbell and Julie Campbell § IN THE DISTRICT COURT OF

Plaintiffs, §
§
V. §
§
Wells Fargo Home Mortgage e.t.a.l., §
And John Doe 1-100 §
Defendants § WILLIAMSON, COUNTY, TEXAS
§
§
§
§
§
§ 277th JUDICIAL DISTRICT

On the ______ day of March, 2010, the Court considered the Defendant’s Motion for Summary

Judgment, and the response thereto, and after reviewing the evidence and hearing the arguments, the

Court finds that the Motion should be DENIED.

IT IS THEREFORE ORDERED that the Motion for Summary Judgment is denied and this

cause shall proceed to trial.

SIGNED on , ___________________.

JUDGE PRESIDING

Response to Motion for Summary Judgment 18

 List of Exhibits
EXHIBIT:

A - Affidavit of Michelle Baldassano

B - The “Note”

C - Deed of Trust

D - Transfer/Assignment of Note and Deed of Trust

E – May/Must document

F – Meeting of the Task Force on Judicial Foreclosure Rules

G - “Special Forbearance Agreement”;

lacking signatures of the Plaintiff's

H – Cover Letter from Hermes Sargent Bates

I – Notice of Trustee Sale

J - Notice of Trustee Sale – Barrett Daffin Frappier Turner & Engel, LLP

K – Letter to Mosser

L - Credit Report

Response to Motion for Summary Judgment 31