Redacted Sequester the Note Home Show Me The Loan

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					 1   Your Name Here , Plaintiff pro per
     Your address here
 2   Your address here
     Your address here
 3   <your email>
 4            IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
 5                        IN AND FOR THE COUNTY OF PINAL
 6   Your Name Here , pro per                       ) Case no: CV2010-0000000
                                       Plaintiff,
 7         Vs.                                      )
                                                               EMERGENCY
                                                    )
 8   CITIMORTGAGE INC.                                    (SALE DATE Oct. xx, 2010)
                                                    )
 9   CR TITLE SERVICES, INC.                        )      PLAINTIFF’S MOTION,
                                                    )
10   MORTGAGE ELECTRONIC                                 “in the nature of a writ of right,”
                                                    )
     REGISTRATION SYSTEMS, INC.
11                                                  )       TO SEQUESTER THE
     AND JOHN DOES (Investors) 1-                   )
12   10,000,                                            GENUINE ORIGINAL NOTE
                                                    )
13      Et al,                                      )   UNTIL FINAL ADJUDICATION
                                                    )
14                                 Defendant                   OF THIS MATTER
                                                    )
15                                                  )       REPLEVIN IN DETINET
                                                    )
16                                                      FOR A PROVISIONAL REMEDY
                                                    )
17                                                  )   PURSUANT TO A.R.S. § 12-2402
                                                    )
18                                                    Assigned to Honorable Xxxxx Xxxxx
                                                    )
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           COMES NOW, Your Name Here , pro per, Plaintiff “Your Name Here ”, for
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     this Replevin in Detinet to move this Court to Sequester the Genuine Original
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     NOTE that CitiMortgage INC. acquired in a currency exchange with Your Name
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     Here for the real property.
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           Your Name Here Moves this Court to order, in the nature of a writ of right,
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     that the Genuine Original NOTE be sequestered and held by this Court until such
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     time as this Court adjudicates this matter; and if this Court rules in favor of
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     Defendants, thus allowing Defendants to foreclose on Your Name Here‟s real
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     property, then said Genuine Original NOTE shall be cancelled and either returned to
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 1   Your Name Here or held by this Court; and if this Court rules in favor of Your
 2   Name Here then this Court shall return the Genuine Original NOTE to Defendants.
 3         Defendant CitiMortgage INC. is attempting to confiscate Your Name Here‟s
 4   real property through a fraudulent non-judicial foreclosure procedure based on the
 5   felonious acts of filing numerous false and/or forged documents in an Arizona
 6   public office by Defendants.
 7         If CitiMortgage INC. is successful in the foreclosure proceedings against
 8   Your Name Here, CitiMortgage INC.‟s use of felonious acts notwithstanding, then
 9   CitiMortgage INC. has voluntarily relinquished all rights to possession of the
10   Genuine Original NOTE.
11                See: JAMES F. JOHNSTON and SANDRA JOHNSTON, Appellants,
                  v. JEANNE HUDLETT, Appellee. No. 4D08-4636 [March 31, 2010]
12                DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA,
                  FOURTH DISTRICT, January Term 2010
13                “Moreover, in the case of original mortgages and Promissory
                  notes, they are not merely exhibits but instruments which must be
14                surrendered prior to the issuance of a judgment. The judgment
                  takes the place of the Promissory note. Surrendering the note is
15                essential so that it cannot thereafter be negotiated.
                  (Emphasis added)
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                  Perry v. Fairbanks Capital Corp., 888 So. 2d 725, 726 (Fla. 5th
17                DCA 2004).
                  “The judgment cancels the note.” (Emphasis added)
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19         In fact, pursuant to an appellate court, this Court cannot adjudicate this matter
20   until Defendants surrender the Genuine Original NOTE to this Court.
21         All parties agree the Genuine Original NOTE is EVIDENCE, and since there
22   is no controversy concerning the Genuine Original NOTE being evidence this Court
23   should sequester said evidence.
24         This Motion is supported by the laws and Constitution of Arizona, the prior
25   rulings of courts, the docket of this case, each of which are incorporated by this
26   reference as if fully set forth, and for each of which Your Name Here asks this
27   Court to take judicial notice thereof. This Motion is further supported the
28   accompanying Memorandum of Points and Authorities.
                                               2
 1                MEMORANDUM OF POINTS AND AUTHORITIES
 2          1.    Your Name Here has filed this Replevin in Detinet as a Provisional
 3   Remedy and a Motion to Sequester the Note in the nature of a writ of right as an
 4   action to invoke Your Name Here‟s Rights protected pursuant to Arizona Law and
 5   Arizona‟s Constitution, especially Your Name Here‟s Due Process of Law and
 6   Property Rights.
 7          2.    Your Name Here states his right to claim pursuant to, inter alia, A.R.S.
 8   § 33-807(B) that CitiMortgage INC. may not sell Your Name Here‟s real property
 9   until this action is concluded. The sale of Your Name Here‟s real property is
10   relative to the transfer of the Genuine Original NOTE, which is currently pendente
11   lite and therefor CitiMortgage INC. may be justly barred from selling Your Name
12   Here‟s real property until all matters concerning the Genuine Original NOTE are
13   settled and/or dismissed by this Court.
14          4.    Your Name Here has the substantial right to have this Court sequester
15   the Genuine Original NOTE until CitiMortgage INC. is allowed to foreclose on
16   Your Name Here‟s real Property; notwithstanding said foreclosure being lawful or
17   not.
18          5.    In fact, this Court should sequester the Genuine Original NOTE as the
19   Genuine Original NOTE is a pertinent issue in this case and any adjudication of this
20   matter may be unenforceable and/or invalid if the Genuine Original NOTE is
21   somehow destroyed, transferred and/or lost.
22          6.    It is incumbent on this Court to protect the interests of all parties and
23   said interest is reliant on the Genuine Original NOTE being in good condition and
24   not altered in any way by any party during this case.
25          7.    Defendants have claimed that the “Note” is evidence.
26                Deed of Trust, page 1:
27                “This debt is evidenced by borrower‟s “Note”…..
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                                                3
 1                 “This Security Instrument secures to the lender: (a) the repayment of
 2                 the debt evidenced by the Note…….”
 3         8.      The pertinent maxim of law states; “evidence not before the court does
 4   not exist.”
 5         9.      Both parties agree the Genuine Original NOTE is evidence.
 6         10.     This Court cannot allow Defendants to use as evidence any item that
 7   Defendants refuse to provide to this Court.
 8         11.     This Court MUST sequester the Genuine Original NOTE to prevent
 9   Defendants from using the Genuine Original NOTE in the future if Defendants are
10   allowed to foreclose on Plaintiff‟s property.
11         12.     Pursuant to JOHNSTON v. HUDLETT, Id., the Genuine Original
12   NOTE “must be surrendered prior to the issuance of a judgment.”
13         13.     Pursuant to JOHNSTON v. HUDLETT, Id., “The judgment takes the
14   place of the Promissory note.”
15         14.     Pursuant to JOHNSTON v. HUDLETT, Id., “Surrendering the note is
16   essential so that it cannot thereafter be negotiated.”
17         15.     Pursuant to PERRY V. FAIRBANKS, Id., “The judgment cancels the
18   note.”
19         16.     All parties agree the Genuine Original NOTE is evidence in this matter
20   and therefore there is no controversy concerning the evidentiary value of the
21   Genuine Original NOTE.
22         17.     Defendants prior admissions bar Defendant from now claiming the
23   Genuine Original NOTE is not evidence.
24         18.     Accordingly, unless; Defendants attempt to claim that this Court
25   should not hold evidence relevant to this matter and that it is somehow acceptable
26   for Defendants to hold the evidence relevant to this matter; there is no controversy.‟
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                                               4
 1         19.    There is no law and there is no jurisprudence that allows one party to
 2   hold evidence and claim the evidence exist yet NEVER bring the evidence in
 3   question to the court.
 4         20.    There is no law and there is no jurisprudence that allows the court to
 5   consider evidence it has not seen.
 6         21.    This Court can ONLY rule on the evidence before it.
 7         22.    Pursuant to Defendants claims and statements:
 8                a.       The debt is evidenced by the Note.
 9                b.       The loan is relevant to the debt.
10                c.       The Note is the Borrower‟s Note.
11                d.       Plaintiff is the Borrower.
12                e.       The Deed of Trust is a Security Instrument.
13         23.    Therefore: If Defendants do not supply to this Court the Genuine
14   Original NOTE to be sequestered by this Court, then the Genuine Original NOTE
15   does not exist - if the Note does not exist- the debt does not exist- if the debt does
16   not exist – the loan does not exist – if the loan does not exist – the Deed of Trust is
17   invalid – if the Deed of Trust is invalid - Defendants cannot foreclose. Ergo, absent
18   this Court sequestering the Note, the Note does not exist; and this Court cannot
19   make a judgment; and the foreclosure cannot proceed.
20         24.    Pursuant to Carpenter v. Longan (1872) the Deed of Trust and the Note
21   must be together.
22         25.    Defendants have or will supply the Deed of Trust as evidence.
23         26.    Defendants‟ refusal to allow this Court to sequester the Genuine
24   Original NOTE is repugnant to the federal and state constitutions and violates the
25   concepts of equity.
26         27.    For this Court to refuse to sequester the Note, this Court would have to
27   rule that Defendants‟ can have both a borrower‟s Note and a borrower‟s home and
28   leave a borrower with nothing and a debt for nothing.
                                                 5
 1         28.    Sequestration of the Genuine Original NOTE is in no way similar to
 2   any so called “show me the note” theories as espoused on the internet as Plaintiff is
 3   not requesting to “see” the Genuine Original NOTE, Plaintiff is ONLY requesting
 4   that this Court protect Plaintiff‟s due process of law rights to have the property of
 5   interest and evidence in this matter be protected by this Court.
 6         29.    Your Name Here states on and for this Court‟s record that Your Name
 7   Here is in fact the TRUE OWNER of the real property in question, and that any
 8   claim of legal ownership by any party is unsubstantiated; and substantiation
 9   notwithstanding, TRUE OWNERSHIP is a higher Right than legal ownership in
10   ALL matters pursuant to Keech v. Stanford 1726, which has never been abrogated
11   and/or abolished and/or altered by any court in this nation.
12         30.    Your Name Here also invokes Your Name Here‟s right to replevin
13   action pursuant to, inter alia, A.R.S. §§ 47-2711(2)(b); and 2716(3).
14         31.    The lawfulness and or fraudulent nature of the non-judicial foreclosure
15   proceeding withstanding or notwithstanding; once CitiMortgage INC. attempts to
16   take possession of the real property in question, CitiMortgage INC. may be required
17   by the laws of Arizona, especially and specifically, inter alia, A.R.S. § 47-3501, and
18   others, to return the Genuine Original NOTE relating to the real property to Your
19   Name Here immediately after the foreclosure or the foreclosure may not be
20   considered lawfully consummated.
21         32.    Accordingly, Your Name Here hereby moves this Court to sequester
22   the Genuine Original NOTE until this case is adjudicated; and after said
23   adjudication return and/or cancel the Genuine Original NOTE pursuant to this
24   Court‟s decision.
25         33.    Your Name Here‟s fear that the Genuine Original NOTE may be
26   somehow transferred and/or sold and/or otherwise held by an improper party are
27   sufficient grounds for his request for sequestration as Your Name Here has provided
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                                               6
 1   sufficient evidence to this Court that Defendants, jointly and/or separately, alter,
 2   falsify and/or forge documents and record such documents into a public office.
 3         34.    Sequestration of the Genuine Original NOTE in no way harm‟s any
 4   Defendant.
 5         35.    The ONLY possible harm that may come to Defendants from this
 6   Court‟s ruling to sequester the Genuine Original NOTE is if the Defendants are not
 7   in possession of the Genuine Original NOTE and therefore cannot avail the Genuine
 8   Original NOTE for sequestration.
 9         36.    The possibility of harm to Your Name Here for refusal of this Court to
10   order the sequestration of the Genuine Original NOTE is immeasurable.
11         37.    Your Name Here may be unlawfully sued by a future party that
12   somehow garners possession of the Genuine Original NOTE through lawful and/or
13   unlawful means.
14         38.    Your Name Here may be forced to again pay for the Genuine Original
15   NOTE if another party claims to be in possession of the Genuine Original NOTE.
16         39.    Accordingly, Your Name Here also moves this Court to sequester all
17   copies, certified or not, of the Genuine Original NOTE in this action.
18         40.    Factual events pertaining to this matter:
                  a.     CitiMortgage INC. traded Your Name Here the real property for
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                  the Genuine Original NOTE.
20                b.     CitiMortgage INC. is attempting to take possession of the real
21                property from Your Name Here pursuant to rights CitiMortgage INC.
                  claims they acquired when they purportedly acquired the Genuine
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                  Original NOTE;
23                c.     If successful, CitiMortgage INC. MUST by law then cancel the
24                Genuine Original NOTE and relinquish possession of such to this
                  Court.
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                  d.     CitiMortgage INC. cannot by law be allowed to be in possession
26                of both the real property and the Genuine Original NOTE, such is also
27                inclusive of all copies, certified or not, of the Genuine Original NOTE;
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                                                7
 1                e.     Your Name Here cannot by law be stripped of all rights and
                  possession of the real property while the Genuine Original NOTE is in
 2
                  the possession of CitiMortgage INC.;
 3                f.     The law of equity requires that neither party have both the
 4                Genuine Original NOTE and the real property;
                  g.     As stated in Your Name Here‟s Complaint many of the
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                  Defendants filed false and/or forged documents in a public office in
 6                Arizona, each filing being a felony under Arizona law;
 7                h.     The foreclosure of the real property is not fully „completed‟ nor
                  „perfected‟ nor consummated in accordance with Arizona law until
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                  such time as the Genuine Original NOTE is cancelled by this Court.
 9                i.     Defendants and/or other parties may currently be in unlawful
10                possession of the Genuine Original NOTE and copies thereof, certified
                  or not;
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                  j.     Your Name Here is currently in possession of the real property
12                as the True owner, which is one aspect in relation to CitiMortgage
13                INC. and Your Name Here‟s currency transaction;
                  k.     There is no basis in law for either party in a “currency exchange”
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                  and/or other transaction to achieve possession of all items in the
15                transaction even after default of a party;
16                m.     There is no factual evidence that Your Name Here ever defaulted
                  on CitiMortgage INC., their successor or assigns, and Your Name
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                  Here‟s transaction.
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           41.    Plaintiff moves this Court for a provisional remedy pursuant to, inter
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     alia, A.R.S. § 12-2402 to prevent the unlawful sale of Plaintiff‟s real property.
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21         See: Provisional remedy. (Black‟s 6th) A remedy provided for present need
           or for the immediate occasion; one adapted to meet a particular exigency.
22         Particularly, a temporary process available to a plaintiff in a civil action,
23         which secures him against loss, irreparable injury, dissipation of the property,
           etc., while the action is pending. Such include the remedies of injunction,
24         appointment of a receiver, attachment, or arrest.
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           42.    The provisional remedy brings no harm to any party as the real

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     property is itself the bond and collateral for this matter and the Note can be held by

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                                               8
 1   this Court for the duration of the litigation since Defendants claim they will not be
 2   selling and/or transferring the Note in any way during this litigation.
 3         43.    In fact, it is incumbent on this Court to sequester the Note BEFORE
 4   this Court can effectuate any judgment in this matter.
 5         For the foregoing reasons and in the interest of justice and equity, Your
 6   Name Here moves this Court to sequester the Genuine Original NOTE and all
 7   copies thereof until final adjudication of this mater; and order the prohibition of any
 8   sale of the real property until after final adjudication of this matter.
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10                              VERIFIED STATEMENT
11         The undersigned Plaintiff, Your Name Here, pro per, a man, and a civilian,
12   hereinafter “Plaintiff”, does solemnly declare and state as follows:
13         1.     Plaintiff is competent to state the matters set forth herein.
14         2.     Plaintiff has knowledge of the facts stated herein.
15         3.     All the facts herein are true, correct and complete, not misleading, to
16   the best of Plaintiffs knowledge and belief, and admissible as evidence, and if called
17   upon as a witness, Plaintiff will testify to their veracity.
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19         DATED: the 20th day of October, in the year of Our Lord, 2010
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                                           BY: ____________________________, agent
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                                                     Your Name Here, pro per
23                                       Signed reserving all my rights at A.R.S. § 47-1308
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                                                 9
 1                                CERTIFICATE OF SERVICE

 2
            ORIGINAL and ONE COPY delivered to THE SUPERIOR COURT OF
 3
     THE STATE OF ARIZONA COUNTY OF PINAL, this 20th day of October, 2010.
 4
 5          I HEREBY CERTIFY that a true and correct copy of the above REPLEVIN has been

 6   furnished by U.S. Mail on this 20th day of October, 2010 to:

 7   Miles, Bauer, Bergstrom & Winters, LLP
     Jeremy T. Bergstrom, Esq.
 8   2200 Paseo Verde Parkway, Suite 250
     Henderson, NV 89052
 9   Attorneys for Defendants:
     CITIMORTGAGE, INC.
10   CR TITLE SERVICES, INC.
     MORTGAGE ELECTRONIC
11   REGISTRATION SYSTEMS, INC.
12
                                                    BY: ____________________________, agent
13
                                                             Your Name Here, pro per
14                                                Signed reserving all my rights at A.R.S. § 47-1308

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