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IN THE FEDERAL COURT OF FULTON COUNTY
STATE OF GEORGIA
James R. Coles
Plaintiff
v
The Bank of New York Mellon.;
As Trustee for CIT Mortgage Loan
Trust 2007-1, Vericrest Financial, Inc. (Individually, & Professionally as an employee of McCurdy & Candler);
Defendants
CIVIL ACTION
FILE NO: _______________
JURY TRIAL DEMANDED
VERIFIED COMPLAINT FOR DECLARATORY RELIEF,
INJUNCTIVE RELIEF AND DAMAGES
COMES NOW, Plaintiff, Ex-military and I served 2 years in Iraq proceeding in
propria persona, and who files his Verified Complaint for Declaratory Relief,
Injunctive Relief, and Damages.
INTRODUCTION
1. In this action, Plaintiff seeks inter alia, an injunction of eviction/
dispossessory proceedings, based upon Defendant’s failure to comply with statutory
prerequisites to foreclosure, and a determination of the validity of a foreclosure sale
held in violation of statutory requirements, together with damages and other relief.
2. Georgia has longstanding, statutorily prescribed non-judicial procedures
by Power of Sale with minimal consumer protections for homeowners. O.C.G.A.
§44-14-162 et. seq.
3. The law is clear, however, that entities foreclosing upon homeowners
must1 strictly comply with Georgia’s statutory prerequisites to foreclosure. O.C.G.A.
§23-2-114. Among other things, it is black-letter law that the entity seeking to
foreclose must have actual legal authority to exercise the Power of Sale.
4. Many foreclosing entities, including Defendants, have dispensed with
this fundamental requirement. Such entities foreclose through their Counsel, without
having first obtained proper and legally valid assignment of the mortgage and the
power of sale, such as in this case.
5. Georgia’s foreclosure process has become undisciplined, and lawless.
Many foreclosures are plainly void under statute and Georgia case law, many
borrowers never obtain accurate statutorily required notices, have flawed and
fraudulently created assignments of title and thus are sold, and sometimes, resold
without a proper chain of title, and foreclosed on homes whose mortgages have been
satisfied, or eliminated/discharged by The United States Bankruptcy Court.2
6. Plaintiff seeks relief for the Defendant’s actions in the wrongful
foreclosure of his residence. Plaintiff seeks declaratory and injunctive relief
concerning a foreclosure conducted by entities who did/do not have standing to pursue
and perform such foreclosures, declaratory and injunctive relief concerning the latest
notice of sale under power letter Plaintiff has received, and an injunction of future
1 Whenever in a rule, or statute, there has been used, an unmistakably mandatory character, it is required that certain procedures "shall," "will," or "must" be employed; the court has no discretion to act in a different manner, and often the mandatory character creates a liberty interest. Hewitt v Helms, 459 US 460 - Supreme Court 1983 @ 871; see also Russ v. Young, 895 F.2d 1149, 1153 (7th Cir.1990), See also Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979).; “use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest.” Verrett v. Stempson, 623 A. 2d 120 - DC: Court of Appeals 1993 2 As is in this case. The debt had been eliminated in Bankruptcy.
2
eviction/dispossessory actions that defendants may pursue against Plaintiff, and
procedures to void/verify the validity of the underlying sale.
7. Plaintiff further seeks injunctive relief to prevent defendants from
continuing their harmful behavior toward Georgia homeowners.
JURISDICTION AND VENUE
8. This court has subject matter jurisdiction over this action because the
matter involves Georgia real property and foreclosure Rules and statutes.
9. Venue is proper in Fulton County; It is the locale for the Registered
Agents3, and/or the principal place of business for defendants is located for
CitiMortgage, Inc.; Anthony DeMarlo of McCurdy & Candler; Ms. Kent from Burr &
Forman
THE PARTIES
10. Plaintiff, Retired, First Sergeant Lll Cccc, disabled, and proceeding in
propria persona resides at 111 ACZ4.
11. Defendant CitiMortgage, Inc. (hereinafter “Citi”), is a Foreign For-
Profit Corporation, whose principal office address is P. O. Box 30509, located in
Tampa, FL 33631; they can served through their Registered Agent CT Corporation
System, whose address is: 1201 Peachtree Street, N.E., Atlanta, GA 30361, in
Fulton County.
12. Defendants Anthony DeMarlo /McCurdy & Candler, LLC,5
3 CitiMortgage and Burr & Forman’s Registered Agents are in Fulton County, and McCurdy & Candler’s principal place of business/registered agent is in Fulton County.4 The property more specifically described as: Land Lot a0 of the 1?th District, of DeKalb County, Georgia, being Lot 000, Block BBBB, of the M C S as per Plat Recorded in the Plat Book 666, Page 1aaa DeKalb County. Georgia Records5 DeMarlo/McCurdy & Candler were involved prior to and throughout the unlawful Sale Under Power. After the first Sale Under Power, Ms. Kent/Burr & Forman took over. DeMarlo/McCurdy & Candler came back on the scene during the second week of
3
(hereinafter “Mc&C”, “DeMarlo”, or “McCurdy & Candler”) is a law firm
incorporated in the state of Georgia, their Registered Agent is located at their principal
place of business, Registered Agent: Anthony DeMarlo located at: 3525 Piedmont
Rd., Building 6, Suit 700, Atlanta, GA 30305. McCurdy & Candler, a/k/a
“foreclosure mill attorneys”, like McCalla Raymer, regularly represent MERS and/or
other entities seeking to perform non-judicial foreclosures in the state of Georgia; in
the instant action, acting for and on behalf of it’s clients CitiMortgage, instituted and
pursued non-judicial foreclosure against Plaintiff with full knowledge that it lacked
authority to do so.
13. Defendant Ashby L. Kent, Esq.6 ( hereinafter “Kent”) individually and
as employee/representative of Burr & Forman, LLP,(hereinafter “B&F”); B&F is a
foreign Limited Liability Company formed under the laws of Alabama, with their
principal place of business located at: 420 20th St., N., Ste 3400, Birmingham, AL
35203, with their Registered Agent in Georgia, shown as: Richard A. Fishman,
Esq., 171 17th Street, NW, Suite 1100 Atlanta, GA 30363
14. Defendants Mortgage Electronic Registration Systems, Inc., (hereinafter
“MERS”), is a wholly owned subsidiary of MERSCORP, Incorporated in Delaware,
operating an electronic registry designed to track servicing rights and ownership of
mortgage loans. Their principal place of business is 1818 Library St., Suite 300
Reston, VA 20190.
15. Defendants’ wrongful acts, as hereinbelow alleged in greater detail, took
place within and throughout the State of Georgia.
December, 2010 when Plaintiff received a new letter stating that there was going to be a Sale Under Power of his property on January 4, 2011. 6 To Plaintiff’s knowledge, although Ms. Kent/Burr & Forman, LLP did not become involved until after the Sale Under Power was preformed, they are/were part of the conspiracy. Nevertheless, when this Complaint references a period of time prior to and including the Sale Under Power, it is not directly referencing Ms. Kent/Burr& Forman, LLP.
4
16. The defendants,7 and each of them, were the agents, employees,
representatives, partners, officers, principals and/or joint venturers of each of the
remaining defendants, and in doing the things hereinafter alleged, were acting within
the scope, course and purpose of such agency, employment or position, or within the
apparent scope, course and purpose of such agency, employment or position and with
permission and consent of each of the remaining defendants.
FACTS
17. On or about June 19, 2002, Plaintiff executed a Note and Security Deed
for the subject property located at 123 Abc in favor of First City Mortgage, Inc. d/b/a
Eagle Mortgage Services.
18. For a contract to exist between two parties there must be full disclosure
and consideration. To bring a claim one of the parties must be damaged. At the basic
core and cause of Plaintiff’s filed Complaint are primary issues of fact:
a) “Fraud in the inducement” due to non disclosure and b) Defendants lacked standing to perform a sale under power.c) Furthermore, conspiracy to commit theft by deception resulting from an absence of standing as Defendants have not proven that they had/have an interest or standing in this matter. d) Wrongful Foreclosuree) Under UCC §3-309 states that a person can enforce a promissory note without having the original, BUT only under certain limited circumstances, and the facts surrounding such MUST be proven:
A person not in possession of an instrument is entitled to enforce the instrument if:
(i) the person was in possession of the instrument and entitled to enforce it when loss of possession occurred, (ii) the loss of possession was not the result of a transfer
7 Whenever appearing in this complaint, each and every reference to Defendants or to any of them, is intended to be and shall be a reference to all defendants hereto, and to each of them, unless said reference is specifically qualified.
5
by the person or a lawful seizure, and (iii) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process.
19. A person seeking enforcement of an instrument under subsection (a)
must prove the terms of the instrument and the person's right to enforce the
instrument. The court may not enter judgment in favor of the person seeking
enforcement unless it finds that the person required to pay the instrument is
adequately protected against loss that might occur by reason of a claim by another
person to enforce the instrument.
20. Further, the mortgage of which it was alleged Plaintiff had defaulted,
had been discharged by the Bankruptcy Court on January 27, 2006.
STANDING
21. Plaintiff reiterates, realleges, and incorporates paragraphs one (1)
through twenty (20), all general, and all unnumbered paragraphs, as if fully restated
herein.
22. At closing, Plaintiff was only of the knowledge that FirstCity Mortgage,
Inc., doing business as Eagle Mortgage Services was the lender. “Exhibit 1” The
lender never disclosed that CitiMortgage or MERS were involved in any way.
Plaintiff was hurried through the closing documents, and does not remember ever
reviewing or signing any documents that mentioned either Citi or MERS.
23. Before Plaintiff filed Chapter 7 Bankruptcy, there had been no default
concerning mortgage payments, and no lien recorded in the County Records.
24. During the Bankruptcy proceedings, even though Plaintiff listed
CitiMortgage as the entity to whom he was currently making mortgage payments,
6
none of the defendants contested, or objected to a discharge of the debt; further, none
of the defendants came forward to have the debt reaffirmed.
25. To the best of Plaintiff’s belief, at some time unknown to Plaintiff, the
Note and security deed were bifurcated where the deed alone was separated from the
note and was assigned, for servicing purposes, to Defendants “Citi”, and possibly
other unknown entities.
26. At the time of foreclosure, it was/still is, unknown who held and owned
the actual “wet ink” original promissory Note. Based upon knowledge and belief, the
promissory note had been pledged, hypothecated, and/or assigned as collateral
security to an unknown entity, foreign trust, or to an agency of the United States
government or Federal Reserve.
27. A letter dated June 21, 2010, Mr. DeMarlo/Mc&C affirmatively
represented that their “client” was, Citi and that Citi, was both the “servicer”, and the
“creditor” for the aforementioned, alleged indebtedness regarding the property. Said
correspondence, however failed to identify Citi as the owner and holder of the Note,
and failed to affirmatively represent that Citi owned and/or held any interest in the
Security Deed or had any rights therein or thereto which would support a foreclosure
of the property.8
FIRST CAUSE OF ACTION:
FRAUD
28. Plaintiff reiterates, realleges, and incorporates paragraphs one (1)
through twenty-seven (27), all general paragraphs, and all unnumbered paragraphs, as
if fully restated herein
8 Plaintiff recently received a letter dated December 1, 2010 from Mr. DeMarlo from Mc&C that there will be a Sale Under Power of the property estimated date of January 04, 2011. Plaintiff fails to see how they can perform a Sale Under Power and foreclose on property which was already sold August 3, 2010, and bought by Citi.
7
29. Regarding the matter of Fraud, it is apparent that the jostling of
accounting maneuvers created by the availability of the Plaintiff’s signature
accelerated Fraud. Fraud commenced when full disclosure did not occur and no
consideration was provided from the lender in the form of a loan of money.
30. Mc&C, who had provided Plaintiff with written Notice that their “client”
for purposes of the loan and foreclosure sale was Citi, the same law firm which also
fraudulently and affirmatively represented that the entity that had full authority
affirmatively, amend and modify all terms of the mortgage instrument for the
purposes of the subject loan foreclosure sale. The June 21st letter further stated:
“If you have received a discharge in a Bankruptcy proceeding, this notice is not intended to indicate that you are personally liable for this debt. In this instance the information concerning the associated debt owed is for informational purposes only and should be disregarded for any purposes other than that of conducting a non-judicial foreclosure of the security pursuant to Georgia law.”
31. Further, Defendants knowingly, willingly, wantonly, fraudulently, and
illegally continued to pursue the Sale under Power upon the subject residential
property in violation of OCGA § 44-14-162(b).
OCGA § 44-14-162(b):“The security instrument or assignment thereof vesting the secured creditor with title to the security instrument shall be filed prior to the time of sale in the office of the clerk of the superior court of the county in which the real property is located.”
32. Defendants DeMarlo/Mc&C ran an ad in the Champion Newspaper, but
they did not run the ad in accordance with law as to the amount of time, and the
description of Plaintiffs property was incorrect; an unacceptable error. Defendants
therefore, held off the July sale until August.
33. The day of the Sale Under Power, after the sale was completed, Mc&C
FAX’ed to Plaintiff’s wife, at her place of employ, numerous pages, finally providing
some of what Plaintiff had attempted to obtain in a Qualified Written Request letters,
8
which had been ignored. There were documents showing to whom, and when
mortgage payments were made; and indicated that, if there had been a singular,
secured creditor, it would have been HUD, where the monthly payments had gone.
34. Fact: HUD was the only secured creditor and only Real Party In
Interest; they would have been the only entity with standing to foreclose.
35. CitiMortgage and DeMarlo.Mc&C had perpetrated a fraud, pretended
Citi was the originator, the holder, and who in fact pursued and performed the
foreclosure and sale under power; Citi lacked standing, the sale is void.
36. The record demonstrates that neither Defendants Citi, nor defendants
MERS had a legal or equitable interest in both the Note and Security Deed which are
legal prerequisites to institute and maintain a foreclosure.
37. As severance of the ownership and possession of the original Note and
Security Deed had occurred and as the true owner and holder of both the original Note
and Security Deed were unknown and as a result of multiple and/or missing
assignments and an incomplete and improper chain of title, all defendants named
above were legally precluded from foreclosing and/or selling the subject property.
38. Defendant McCurdy & Candler’s DeMarlo’s foreclosure sale notice
letter was not in accordance with notice provisions involving foreclosure proceedings
as required under Georgia law. Specifically, O.C.G.A. §44-14-162.2 requires, in
pertinent part, that “notice…shall include the name, address, and telephone number
of the individual or entity who shall have the full authority to negotiate, amend, and
modify all terms of the mortgage with the debtor.” Upon knowledge and belief,
ONLY a vested investor, in a securitized trust, who is the real party in interest, may
authorize amendments and/or modification of the Plaintiff’s note and security deed.
39. Furthermore, O.C.G.A. §7-6A-2(6) prescribes that “A creditor shall not
include: (A) a servicer; (B) an assignee; (C) a purchaser; or (D) any state or local
housing finance agency, or any other state or local governmental or quasi-
governmental entity.”
9
40. Mc&C’s letter dated June 21, 2010 “Exhibit 2” failed to comply with
the notice provisions of O.C.G.A. §44-14-162.2(b): “The security instrument shall
be filed prior to the time of sale in the office of the clerk or the superior court of the
county in which the real property is located.” as the letter does not indicate who the
secured creditor is; nor does it identify the secured creditor who has title to the
security instrument, nor does anything identify the secured creditor who has title to
the security instrument, but instead recites that the assignment is to be recorded in the
office of the clerk of DeKalb.
41. As such, defendant Citi was without legal standing, and was legally
precluded from foreclosing on and selling the property.
42. In an attempt to cure the deficiencies noted supra, Defendants
DeMarlo/McC&C, and MERS have caused a purported assignment “Exhibit 3”.
Plaintiff asserts that the purported assignment recorded in the DeKalb County
Property records was deficient and upon its face as the defendants:
a) Purport to have executed the assignment (see Exhibit 3”) on April 16, 2010, which is a full four (4) months prior to the “sale date and that there was no logical way that anyone could know with a certainty that a foreclosure sale would definitely occur on August 03, 2010 therefore the alleged date of execution is suspect if not fraudulent.
b) The signatures, and Notarizations on the closing Waiver are suspect as (1) There is a Notary stamp showing Joel B Katz, who was supposedly the closing attorney, but Jennifer Ward signed as Notary with Katz’ Seal; (2) In the location where the Notary Seal for Jennifer Ward is and where she signed as the Notary, but there is no closing attorney’s signature. “Exhibit 4”
c) Plaintiff has provided an example of the signature of Joel B Katz on his own Warranty Deed “Exhibit 5” as showing that the illegible mark is different than the other “known” marks associated with Mr.Katz.
d) In addition, when looking at the signatories for this assignment,
10
it is abundantly clear that the Vice President of MERS, Nate Blackstun, appearing to be in Missouri, is in reality a CitiMortgage Corp. Employee as shown on FDIC Power of Attorney filing at gsccca.org for CitiMortgate and Verdugo Trustee Service Corporation.
43. It has become common practice for foreclosure mill attorneys, as well as
the entities involved in the fraudulent Assignment documents, and Rights Waivers
included with the closing documents, to have the Authority to sign as Officers of
MERS and have gotten so used to doing so, that they have begun to manufacture and
fabricate documents to give the appearance of propriety and to mislead the court into
thinking that these attorneys, their “clients”, their employers and associated entities
were all acting in good faith. These fraudulent attempts to lull the court into thinking
that the actions taken were done with all the rights and authority required by Georgia
law, fail upon their face, just like the purported Assignments.
44. All Defendants make much ado of having complied with the non-judicial
foreclosure process in Georgia, all while completely ignoring the fact that their client
did not then, and never has had any standing to foreclose by virtue of having no
legally cognizable claim to the subject property.
45. Defendant Citi, claimed that it was entitled to foreclose by virtue of
being a servicer, and creditor, although, according to the assignment from MERS to
Citi, they are assignees, and the fact that Citi buys many of the subject properties that
they foreclosure on, they are also purchasers. In other words, Citi is assignee,
servicer, and purchaser; which according to the Georgia Legislature, who has
specifically defined in O.C.G.A. §7-6A-2(6) to be read “A creditor shall not include:
(A) a servicer; (B) an assignee; (C) a purchaser; or (D) any state or local housing
finance agency or any other state or local governmental or quasi-governmental
entity.” Therefore, Citi, could not/cannot foreclose even, assuming arguendo, that
the Assignment was valid.
11
46. It is abundantly clear that the Legislature, in specifying that the “secured
creditor” be upon the record prior to the sale (O.C.G.A. §44-14-162(b)), meant for the
creditor to be vested with title to any property it proposes to foreclose upon prior to
the sale. Defendants have been known to argue that they have satisfied the
requirements of §44-14-162(b) by causing the alleged Assignment to be recorded.
Plaintiff specifically avers that a fraudulently created Assignment confers no rights at
all, let alone the right to foreclose.
47. In fact, O.C.G.A. §44-2-43 declares:
“Any person who: (1) fraudulently obtains or attempts to obtain a decree of registration of title to any land or interest therein; (2) knowingly offers in evidence any forged or fraudulent document in the course of any proceedings with regard to registered lands or any interest therein; (3) makes or utters any forged instrument of transfer or instrument of mortgage or any other paper, writing, or document used in connection with any of the proceedings, required for the registration of lands or the notation of entries upon the register of titles; (4) steals or fraudulently conceals any owner’s certificate, creditor’s certificate, or other certificate of title provided for under this article; (5) fraudulently alters, changes; or mutilates any writing, instrument, document, record, registration, or register provided for under this article; (6) makes any false oath or affidavit with respect to any matter or thing provided for in this article; or (7) makes or knowingly uses any counterfeit of any certificate provided for by this article shall be guilty of a felony and shall be imprisoned for not less than one year not more than ten years.”
48. Furthermore, the Assignment from MERS to Citi was dated April 16,
2010, and the sales date was August 3, 2010, approximately four (4) months after the
Assignment. The only logical explanation for their clairvoyance, would be that Citi
has a magic crystal ball on their table, which accurately makes predictions concerning
whether or not a party will be able to remedy any default.
49. Or another explanation would be that many of their foreclosures are
12
fraudulently induced. One would wonder how MERS, Citi and Mc&C could have
known that Plaintiff would have no possible way to refinance, or pay off the loan, not
to mention the fact that the loan had been discharged by the Bankruptcy Court, of
which Citi, MERS and Mc&C had actual knowledge as shown by the documents that
Mc&C sent to Plaintiff’s wife at her place of employment. “Exhibit 6”
50. May 2010, Plaintiff sought a TRO/Injunction in DeKalb County
Superior Court, after having received a Default letter from Mc&C, who threatened
foreclosure. Superior Court Denied the Petition and closed the case. “Exhibit 7” As
a litigant proceeding in properia persona, Plaintiff failed to realize that upon denial of
the TRO/Injunction, that the Court had closed his case.
51. July, 2010 DeMarlo/Mc&C sent Plaintiff a new letter stating that they
planned to perform a Sale Under Power of his property August 03, 2010, Plaintiff
filed a Renewed Petition for TRO/Injunction9; after filing the Renewed Petition,
Plaintiff learned that his case had closed ever since May 27, 2010. Plaintiff then filed
a Motion to Reinstate; while Motion to Reinstate was pending a ruling, Citi, MERS
and DeMarlo/Mc&C performed an unlawful Sale Under Power.
52. Immediately after the foreclosure sale, Plaintiff Amended his Complaint
from a TRO to an action to set aside the wrongful foreclosure, Plaintiff hadn’t realized
that the day before he filed the wrongful foreclosure action, the Court had Denied
Motion to Reinstate his complaint; the case was closed and would stay closed.
A. Defendants Ms. Kent/B&F
53. In the meantime, CitiMortgage’s new counsel,10 Ms. Ashby Kent
employed at Burr & Forman, contacted Plaintiff discussing selling him back his
9 The first ad run in the county’s legal organ, showed the wrong Lot Number in the ad. Plaintiff brought this information up in his attempt, through Petition to the Superior Court DeKalb County, to obtain TRO/Injunction.10 Apparently, McCurdy & Candler are only foreclosure mill attorneys, as soon as the foreclosure has concluded, the mortgage companies/servicers hire new attorneys to handle anything else involved.
13
property. Plaintiff found it very odd, that the foreclosing entity would be offering to
sell him his property. Nevertheless, an agreement was reached that Plaintiff would
buy the property back for Twenty-Five Thousand Dollars ($25,000.00). Ms. Kent
promised to work things out.
54. While Ms. Kent continued making fictional promises, that she was trying
to work the deal out with CitiMortgage, Ms. Kent was in the background
manipulating the Courts. The truth is that Ms. Kent perpetrated a fraud upon Plaintiff
as well as perpetrated a fraud upon the Courts when she removed a closed case from
Superior Court to US District Court, the first part of an overt conspiracy between all
defendants who agreed to get the closed case removed from Superior Court to United
States District Court for the Northern District of Georgia.
55. Weeks passed with Ms. Kent continually informing Plaintiff that she was
working out the details; then one day, Ms. Kent said that there had been a snag with
FHA,11 that there may have to be a third party to title the house to.
56. In that same conversation, Ms. Kent also requested another Extension of
time to Respond to the complaint. Since there was no active complaint, Plaintiff
agreed, saying he would not Object.
B. Electronically Forging of Plaintiff’s Signature
57. Plaintiff never dreamed that Ms. Kent had been electronically forging his
signature onto numerous documents, and filing the documents in the Court(s).12 Ms.
Kent even filed the Joint Discovery Plan, Certificate of Interested Parties, etc. to
which Plaintiff had no idea Ms. Kent had electronically forged his name onto.
58. The rules in both the state and federal courts are very similar, and
11 That was the first time that Plaintiff had heard anything about FHA, and defendant Ms. Kent is the only entity to have mentioned FHA, and she did so several times when discussing selling the property back to Plaintiff.12 Plaintiff suspects that Ms. Kent electronically forged his name to documents to give the illusion that Plaintiff was participating in the fictional case she had removed to Federal Court; she was aware that Plaintiff had not filed anything and had not given the removed case any recognition.
14
explicit when it comes to the signing of pleadings, especially when a party is
proceeding pro se; pro se are not allowed to file electronically, and all unrepresented
parties have to hand sign every document filed in the court.
59. Upon discovery that Ms. Kent had been electronically forging his name,
Plaintiff felt an urgent need to alert the US District Court; bringing to the Court’s
attention not only was the case removed, fictional, therefore the Court lacked all
jurisdiction; but also that Ms. Kent had taken upon herself, without Plaintiff’s
knowledge/permission to do so, was electronically forging Plaintiff’s name on
documents she was filing in the Court, working a massive fraud upon the court.
60. After Plaintiff filed Judicial Notice in the Federal Court explaining what
was going on, Ms. Kent’s superior at Burr & Forman, Mr. O’Shea, sent Plaintiff a
threatening email indicating that Plaintiff needed to retract his Request for Judicial
Notice “Exhibit 10” Plaintiff did not withdraw the filing.13
61. The District Court’s Clerk attempted to set a telephone conference
hearing; when Plaintiff inquired into the nature of such a conference, the District
Court Clerk was unwilling to disclose the subject matter, and the clerk told Plaintiff
that either he agrees to a date and time, or they would just set one.
62. December 7th 2010, as Plaintiff was preparing this complaint, Plaintiff
received yet more information that he didn’t already have. Apparently CitiMortgage
is going to foreclose on his property for the second time. “Exhibit 8”; more evidence
that the foreclosure was unlawful; Plaintiff was unaware that they could do it twice.
63. Further, according to Mr. O’Shea, Ms. Kent was neither talking with him
about selling him his house back, although the recorded voicemails that Plaintiff still
has, show the opposite;
13 Plaintiff can only wonder how many other unsuspecting litigants have had their names electronically forged by unscrupulous attorneys, and did not have knowledge of it. Further, Plaintiff honestly believes that had he filed nothing, the electronically signing of his name by Ms. Kent would have continued, and the closed case would have suddenly sprung to life, as if never closed.
15
64. Mr. O’Shea further claims that Ms. Kent was not signing forging
Plaintiff’s signature electronically, according to Mr. O’Shea, Plaintiff gave Ms. Kent
permission to sign his name, a ludicrous idea. The rules of civil procedure prohibit
anyone other than the pro se litigant signing documents, electronically or otherwise.
Plaintiff believes that Ms. Kent and Mr. O’Shea should give pro se litigants more
respect, and discontinue underestimating their opponents, whether represented or not.
C. Fraud by Silence/Fraudulent Concealment
65. The Supreme Court of Georgia has long held that “the mere silence of
the party committing fraud”, “is treated as a continuation of the original fraud….
Constituting a fraudulent concealment” see American Nat. Bank v. Fidelity &
Deposit Co. 131 Ga. 854 (68 SE 622) (1908). ("Whose the basis of an action is actual
fraud, the mere silence of the party committing it is treated as a continuation of the
original fraud and as constituting a fraudulent concealment”)
66. "As a general rule, a plaintiff relying on the doctrine of fraudulent
concealment must show affirmative actions by the Defendant constituting
concealment. [He] must also show that [he] exercised reasonable diligence to discover
[his] cause of action within the limitations period." Hill v. Texaco, Inc., 825 F.2d 333,
335 (11th Cir. 1987) (citations omitted). Fraudulent concealment is described by
Black’s Law Dictionary as:
Fraudulent concealment. The affirmative suppression or hiding, with the intent to deceive or defraud, of a material fact or circumstance that one is legally (or sometimes morally) bound to reveal. 14
67. There exists no contract between the Plaintiff and the Defendant.
Therefore the record that the Defendants are basing their defense upon is a nul tiel
record and the basis of the lenders defense claim of rights is crimen falsi from the
beginning.
14 Black’s Law Dictionary, 7thEd., pg. 282, see “concealment rule”
16
68. Since Fraud vitiates all contracts and there is no time limit of right to
rescind on Fraud, Defendants are liable. All other issues in this case proceed from the
two primary issues.
69. From these developed; Conversion, Civil RICO, and Illegal
Accounting/investment practices ascertained through Securitization and Bundling of
loans well utilized by some lending institutions, banks and mortgage companies.
Maybe these are the reasons for the creation of MERS - to blur the vision of the
righteous laws set up to protect the citizenry of the United States of America.
70. On June 21, 2010, attorneys from the foreclosure mill law offices of
McCurdy & Candler, specifically attorney Anthony Demarlo, was representing
Plaintiff through Attorney–in-Fact, thus fraudulently misrepresented Plaintiff to
others.
71. On June 21, 2010, attorneys from the foreclosure mill offices of
McCurdy & Candler, specifically attorney Anthony Demarlo,, as representatives for
Defendant CitiMortgage and Defendant MERS, the alleged Creditor(s), sent an offer
to Plaintiff to settle the claim prior to the wrongful and fraudulent Sale Under Power.
Plaintiff has shown that in December 2009/January 2010 Plaintiff, through an attorney
attempted, in good faith, to do that very thing, and was refused; “Exhibit 9”
72. December 2009 through January 2010, Plaintiff lawfully tendered an
offer of “Accepted for Value” upon Proof of Claim that Defendant CitiMortgage was
in fact holder of the Original Promissory Note.
73. Defendant CitiMortgage did not honor Plaintiff’s right to equity in
redemption.
74. Further, Defendant CitiMortgage showed bad faith due to not providing
the single necessary element requested to indicate such actions as valid until after
foreclosing, and even then, the document is a fraud.
75. Plaintiff suffered irreparable injury and requests compensatory damages
due to fraudulent procurement of his note Plaintiff suffered irreparable injury and
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requests compensatory damages due to Unauthorized Use of his Signature and Name.
76. Plaintiff is entitled to punitive damages and attorney’s fee as a result of
Defendant’ wrongful and fraudulent actions against him.
77. By reason of the foregoing and as a direct, proximate, and foreseeable
result of Defendants’ wrongful and fraudulent actions, Plaintiff have suffered loss and
damages, for which Plaintiff seeks the amount of $2,000,000.00.
SECOND CAUSE OF ACTION:
WRONGFUL FORECLOSURE
78. Plaintiff reiterates, realleges, and incorporates paragraphs one (1)
through seventy-seven (77), all general paragraphs, and all unnumbered paragraphs,
as if fully restated herein.
79. Where a creditor does not comply with the statutory duty to exercise
fairly the power of sale in a deed to secure debt, the debtor may pursue a cause of
action for wrongful foreclosure under O.C.G.A. §23-2-114. DeGloyer v. Green Tree
Servicing, LLC, 662 S.E.2d 141 (Ga. Ct. App. 2008).
80. Where a foreclosing creditor fails to comply with the notice
requirements of section O.C.G.A. §44-14-162.1, the residential debtor may pursue a
claim for wrongful foreclosure. Roylston v. Bank of America, N.A., 290 Ga. App.
556, 660 S.E.2d 412, Ga. App. 2008.
81. The fact that the foreclosing party did not have a legal interest in the
property and thus did not have a valid power to sell the property is a cognizable
defense for a wrongful foreclosure claim. Id. “A claim for wrongful exercise of power
of sale under O.C.G.A. §23-2-114 can arise when the creditor has no legal right to
foreclose.” Id. (reversing trial court ruling that creditor’s lack of a legal interest in the
foreclosed property barred a wrongful foreclosure claim); see also Rapps v. PHH US
Mtg. corp, (allowing appellant to maintain wrongful foreclosure claim based on
allegations that appellee altered deed so that it could foreclose on property that was
18
never subject to the deed). Where a grantee creditor does not comply with the
statutory duty to exercise fairly the power of sale in a deed to secure debt, OCGA
§23-2-114, the debtor may either seek to set aside the foreclosure or sue for damages
for the tort of wrongful foreclosure. Calhoun First Nat. Bank v. Dickens, 264 Ga.
285, 286, 443 S.E.2d 837, 838 (Ga. 1994) (citing Clark v. West, 196 Ga. App. 456,
457, 395 S.E.2d 884 (1990); Curl v. First Federal, 243 Ga. 842, 843, 257 S.E.2d 264
(1979)). If the debtor elects to set aside the foreclosure sale, the debtor cannot also
recover damages for the value of the property; the debtor may seek both cancellation
of the foreclosure sale and recovery of damages “not associated with the value of the
property for other wrongful conduct by a mortgagor.” Calhoun, 443 S.E.2d at 838;
Clark, 395 S.E.2d at 885-86 (explaining that damages “for other breaches of duty and
other losses” are allowed in action to cancel foreclosure sale).
82. Although Plaintiff attempted to do an outright purchase of the property
in December, 2009 through January, 2010, with the aid of legal counsel, defendants
refused all reasonable offers, see Exhibit 9.
83. Due to multiple violations of Georgia foreclosure statutes, Defendants
did not have the right to foreclose, thereby foreclosed wrongfully. There have been
numerous problems with Notary Publics robo-signing attestation clauses, the
documents signed without the Notary present; Notary Publics robo-signing attestation
clauses prior to obtaining a lawful commission.15
84. A security deed vests legal title to the property in the grantee, who may
foreclose on the security interest. Tomkus v. Parker, 224 S.E.2d 353, 369 (Ga. Ct.
App. 1978). A “power of sale” in a security deed grants the original grantee the power
to sell the property at a foreclosure sale as attorney-in-fact for the debtor to satisfy the
debtor’s delinquency. An assignee of the original grantee of a security deed may
15 A Notary Public is commissioned for four (4) year terms O.C.G.A. §45-17-5, and granted by the County Clerk of Court where Notary resides or is employed. One can easily calculate the beginning date of any notary commission.
19
exercise the power of sale contained in such security deed. O.C.G.A. § 23-2-114;
Allen v. Wade, 203 Ga. 753, 755, 48 S.E.2d 538 (1948); Williams v. Joel, 89 Ga.
App. 329, 79 S.E.2d 401 (1953). An assignee of a security deed, however, cannot
exercise the power of sale and foreclose upon the security until there has been an
actual assignment complying with Georgia law. In re Cummings, 173 B.R. 959, 962
(N.D. Ga. 1994).
D. Georgia Land Registration Laws
85. Georgia law requires that “All transfers of deeds to secure debt shall be
in writing; shall be signed by the grantor or, if the deed has been previously
transferred, by the last transferee; and shall be witnessed as required for deeds.”
O.C.G.A. §44-14-64. A deed must be attested in the manner prescribed by law for
mortgages. O.C.G.A. §44-14-61. Recorded mortgages for real property must be
attested or acknowledged by an official witness and at least one additional witness.
O.C.G.A. §44-14- 33. Pursuant to §44-2-15 of the Georgia code, the official witness
may be a notary public. O.C.G.A. §44-2-15. The validity of an assignment of a
security deed is governed by the laws applicable to the recording of mortgages,
O.C.G.A. §44- 14-33.
86. Under Georgia law, “the registry of a deed not attested, proved, or
acknowledged according to law, is not constructive notice to a bona fide purchaser.”
Hopkins v. Va. Highlands & Assoc., LP, 541 S.E.2d 386, 390 (Ga. Ct. App. 2000)
(quoting Connif v. Hunnicutt, 157 Ga. 823, 836, 122 S.E. 694 (Ga. 1924)).
87. As between the parties to the instrument, however, the deed is valid and
binding absent a showing of fraud. Duncan v. Ball 172 Ga .App. 750, 752, 324
S.E.2d 477, 480 (Ga. Ct. App. 1984). In Leeds Bldg. Products, Inc. v. Sears Mtg.
Corp, the Georgia Supreme Court held that a deed that facially complies with
statutory requirements provides constructive notice, but reaffirmed the general rule
that a patently defective deed—a deed with a facial defect—does not constitute
constructive notice to subsequent purchasers. 267 Ga. 300, 301-02, 477 S.E.2d 565
20
(Ga. 1996); see also In re Yearwood, 318 B.R. 227, 229 (Bankr.M.D.Ga.2004)
(holding that where there is a patent defect in the security deed, there is no
constructive notice like that of a latent defect); In re Blackmon, 283 B.R. 910, 912
(Bankr.E.D.Tenn.2002) (interpreting Georgia law to mean that a recorded instrument
that is facially invalid does not constitute constructive notice to subsequent
purchasers). A patent defect is a defect that “is obvious and easily detectable,” such
as the absence of an unofficial witness’s signature on the face of the instrument. In re
Codrington, 430 B.R. 287, 292 (N.D. Ga. 2009).
88. By way of example, in In re Yearwood, the debtor executed a security
deed to her residence in favor of the defendant. 318 B.R. 227, 228 (N.D. Ga. 2004).
The security deed was notarized by an official witness, but did not bear the signature
of an unofficial witness. Id. The court found that the Chapter 7 Trustee could avoid
the defendant’s interest in the property because the lack of unofficial witness’s
signature was a patent defect in the security deed, and thus there was no constructive
notice to third parties of its invalidity.
89. In another case, the Supreme Court of Georgia found that where a
warranty deed showed on its face that it was for consideration in excess of $100 but
that no transfer tax had been paid to entitle the deed to be recorded, the deed had a
patent defect, was not entitled to be recorded, and could not serve as constructive
notice to a subsequent purchaser. Higdon v. Gates, 231 S.E.2d 345, 346-47 (Ga.
1976). Finding that patent defect did not afford constructive notice, the court affirmed
the cancellation of the deed as a cloud upon the superior title of a subsequent
purchaser. Id.
90. The assignment of the security deed must comply with the attestation
requirements of deeds, O.C.G.A. §44-14-61, and thus the signature of an official
witness was required to create a valid assignment of the security interest. O.C.G.A.
§44-14-33. Just as a deed missing the signature of an unofficial witness is patently
defective, an assignment missing the signature of an official witness is likewise
21
patently defective.
91. A foreclosure of the security in the absence of a valid assignment is null
and void. In re Cummings, 173 B.R. 959, 962 (N.D. Ga. 1994). in Cummings, the
foreclosing creditor claimed that it was entitled to foreclose on the property because it
had acquired a security interest prior to the foreclosure sale by assignment from the
original grantee of the security deed. In re Cummings, 173 B.R. 959, 962 (N.D. Ga.
1994). There were two documents, the first, a hand-written assignment, which stated
grantee “agrees to assign its interest” in the subject property to the foreclosing
creditor, but did not contain language of conveyance. The evidence demonstrated that
the assignment was not executed with the same formalities as the original deed
containing the power of sale. Id. In addition, a second document entitled “Transfer
and Assignment” from the original grantee to the foreclosing party was executed by
the appropriate officers of the parties to the assignment with the same formalities of as
the security deed, but the parties failed to proffer evidence concerning when the
documents were executed and delivered with respect to the foreclosure date. Id. In the
absence of evidence of execution and delivery, the court concluded that note and the
security deed not actually assigned to the foreclosing party before the date of the
foreclosure sale. Id. at 963. Since there was no proof of a valid assignment of the note
and security deed, the foreclosure of the property was declared null and void. Id.
92. The purported assignments do not comply with O.C.G.A. §44-5-64
because the assignment of the security deed did not satisfy the attestation formalities
prescribed by O.C.G.A.§44-5-33, the purported assignment is not a valid assignment
under Georgia law. Thus, any foreclosure of the security interest covered by the
assignment is null and void.
93. The purported assignment is Notarized by someone that according to the
State of Missouri, is not, and has never been a Notary in that state “Exhibit 10”. False
attestations by civilians acting under the guise of notary publics causes a patent defect
in the required attestation of assignments and other deeds as more particularly
22
described supra.
94. Upon the face of the document, the Defendant whose notary seal as
stamped on the document in question on the day of execution was not lawfully
commissioned to act as a notary Plaintiff suffered irreparable injury and compensatory
damages due to fraudulent procurement of the Security Deed by Defendant
CitiMortgage16, and Assignee MERS, and unlawful, illegal and wrongful Sale Under
Power.
95. Signatures of official witnesses are required to create valid assignments
of security interests (O.C.G.A. §44-14-33) and therefore the alleged assignments, each
and every one, are invalid. Assignments of security deeds must comply with O.C.G.A.
§44-14-61.
96. Any foreclosure of the security in the absence of a valid assignment is
null and void ab initio. In re Cummings, 173 B.R. 959, 962 (N.D. Ga. 1994). Any
foreclosure conducted using fraudulently signed and attested documents, which the
Defendants knew or should have known to be fraudulently executed, including deeds,
transfers, assignments or any other document, that are missing the signature of an
unofficial witness and deeds missing the signature of an official witness (emphasis
added) are defective. Therefore, any wrongful foreclosures are void under O.C.G.A.
§23-2-114.
97. The Defendants’ fraudulent assignments creates both patently and
latently defective deeds, which slanders the title of any property foreclosed upon that
16 To Plaintiff’s recollection and belief, any agreement at closing the loan was between either “1st City Mortgage” or “First City Mortgage, Inc.”, and Eagle Mortgage Services, the entity with whom Plaintiff had originally made the agreement to purchase the property, was Eagle Mortgage Services. Plaintiff is unaware of MERS and/or CitiMortgage having ever been involved; or when exactly the two defendants became involved in his mortgage. In fact, page 4/030 faxed by Mc&C to Plaintiff’s wife, at the bottom of the document, shows “Pay to the Order of CitiMortgage, Inc Without Recourse This 19th day of June 2002 FirstCity Mortgage, Inc. dba Eagle Mortgage Services” and signed by “Martha Burdette, AVP” “Exhibit 13” Which, when signing the closing documents, Plaintiff is sure that was not on any document he signed.
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relied upon an assignment with the fraudulent attestation causing Plaintiff damages.
98. An action for damages for emotional distress in a wrongful foreclosure
action is treated as an action for intentional infliction of emotional distress, and the
plaintiff has the burden to prove intentional conduct to cause harm. Mc Carter v.
Banker Trust Co., 543 S.E.2d 755, 758 (Ga. Ct. App. 2000).
99. Breach of the statutory duty upon mortgagee to exercise fairly and in
good faith the power of sale in a deed to secure debt is a tort compensable at law, and
entitles the debtor to punitive damages where appropriate. Clark v. West, 196 Ga.
App. 456, 457, 395 S.E.2d 884, 886 (Ga. Ct. App. 1990); see, e.g., Curl v. First
Federal Savings & Loan Assn., 243 Ga. 842, 843-844(2), 257 S.E.2d 264 (1979)
(affirming award of actual and punitive damages in an action for wrongful
foreclosure); Decatur Investments Co. v. McWilliams, 162 Ga. App. 181, 181, 290
S.E.2d 526, 527 (1982) (affirming award of punitive damages in a wrongful
foreclosure action where debtor provided sufficient evidence of creditor’s bad faith).
100. Because an improperly attested deed does not provide constructive
notice of the assignee’s security interest, the bona fide purchaser has priority of title to
the disputed property as against the assignee, and thus, the assignee’s deed should be
canceled as a cloud upon the superior title of the purchaser. See Higdon v. Gates, 238
Ga. 105, 231 S.E.2d 345 (Ga. 1976) (affirming trial court’s cancellation of bank’s
security deed as a cloud upon title of subsequent purchaser where the deed was not
properly attested because it showed on its face that the tax had not been paid to entitle
it to be recorded).
101. As a result of Defendant’s illegal and tortuous conduct in conducting
wrongful foreclosures, Plaintiff requests, actual, compensatory, intentional infliction
of emotional distress and punitive damages. Clark v. West, 196 Ga. App. 456, 457,
395 S.E.2d 884, 886 (Ga. Ct. App. 1990); see, e.g., Curl v. First Federal Savings &
Loan Assn., 243 Ga. 842, 843-844(2), 257 S.E.2d 264 (1979) (affirming award of
actual and punitive damages in an action for wrongful foreclosure); Decatur
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Investments Co. v. McWilliams, 162 Ga. App. 181, 181, 290 S.E.2d 526, 527 (1982)
(affirming award of punitive damages in a wrongful foreclosure action where debtor
provided sufficient evidence of creditor’s bad faith).
102. In a wrongful foreclosure action, the injured party may seek damages for
mental anguish in addition to the cancellation of the foreclosure. DeGolyer v. Green
Tree Servicing, LLC, 291 Ga. App. 444, 662 S.E.2d 141,147 9 Ga. Ct. App. (2008).
“As a general precept, damages for mental distress are not recoverable in the absence
of physical injury where the claim is premised upon ordinary negligence. However,
when the claim is for intentional misconduct, damages for mental distress may be
recovered without proof of physical injury.” Clark, 196 Ga. App at 457-58; 395
S.E.2d at 886 (quoting Hamilton v. Powell, Goldstein, Frazer & Murphy, 252 Ga.
149, 150, 311 S.E.2d 818 (Ga. 1984)).
103. Defendants wrongfully and illegal performed a Sale Under Power, and
unlawfully and illegally converted Plaintiff’s property located at 1701 Charmeth Rd.,
Lithonia, GA, in DeKalb County, to their own use.
104. Specifically, defendants CitiMortgage has had their new attorneys
contact Plaintiff to see he would be interested in buying the property from them, and
attempting to find out about Plaintiff’s current financial conditions.
105. Defendants are banking institutions, mortgage servicers and licensed
attorneys who are held to a high standard of honesty.
106. Defendants’ frauds and other misconduct upon the public and the
judiciary for their financial benefit is reprehensible, unconscionable, outrageous and
demands serious punitive damages to deter Defendants from further harming the
public and deceiving the judiciary.
107. Plaintiff is entitled to punitive damages and attorney’s fee as a result of
Defendants’ wrongful and fraudulent actions against him
108. By reason of the foregoing and as a direct, proximate, and foreseeable
result of Defendants’ wrongful and fraudulent actions, Plaintiff have suffered loss and
25
damages in the amount of $2,000,000.00.
THIRD CAUSE OF ACTION
CIVIL CONSPIRACY
109. Plaintiff reiterates, realleges, and incorporates paragraphs one (1)
through One hundred-eight (108), all general paragraphs, and all unnumbered
paragraphs, as if fully restated herein.
110. Defendant MERS and its parent company, MERSCORP at the direction
of the “founding shareholders” which include CitiMortgage, Bank of America, Wells
Fargo, Fannie Mae, Freddie Mac, and other parties, colluded to create a fictitious
corporation, designed and designated a “bankruptcy remote” vehicle, acting at all
times as a strawman, and designed specifically to avoid paying county clerk filing fees
which are routinely required when recording any type of transfers of security deeds.
111. In 1996, mortgage lenders created Mortgage Electronic Registration
Systems, Inc in order to internally track secondary market sales of promissory notes
and home loan servicing rights by and between its members.
112. When a mortgage is registered under the MERS system, MERS holds
bare legal title acting “solely as nominee” for their members, which may be banks,
mortgage lenders, title companies, or even Government Sponsored Entities.
113. MERS maintains an electronic registry that purports to track the various
sales and assignments of notes when they are sold from the original lenders to third
parties.
114. MERS’ theory is that as long as the subsequent sale of the servicing
rights or the promissory note is sold to another “insider” member, MERS can remain
the “nominee” for security deeds and the “beneficiary” for deeds of trust on behalf of
the new owner.
115. To the courts, county clerks and general public, it appears as if one
person continues to hold the deed and thus no recordation fees are incurred by MERS
26
members even though the sale of promissory notes and servicing rights occur multiple
times within a single mortgage transaction over the life of the loan.
116. The role of MERS is not properly disclosed to borrowers in their loan
documents. MERS provides that it is a “nominee”, but the term “nominee” is never
defined in the security deed and no disclosures regarding MERS role in the
transaction were provided to homeowners prior to executing the security deed.
117. Upon arrival at the closing, homeowners are given an untenable “take it
or leave it” choice in regards to MERS. They may ONLY accept giving legal title to
MERS if they wish to close the transaction for a home for themselves and their
families.
118. MERS lacks the capacity to act as a Trust or Corporate Fiduciary in the
State of Georgia, thereby rendering void the named MERS, acting solely as
"nominee" for the Lender and the Lender's successors and assigns.
119. The term "nominee" is not defined in the security deed. Georgia law
does not recognize the term "nominee" in a real estate transaction wherein the grantee
holds legal title for the benefit of another. Black's Law Dictionary defines ''nominee'':
"[a] person designated to act in place of another, usually in a very limited way" and as "[a] party who holds bare legal title for the benefit of others or who receives and distributes funds for the benefit of others."Black's Law Dictionary 1076 (8111 ed. 2004).
A "beneficiary" is defined as "one designated to benefit from anappointment, disposition, or assignment or to receive somethingAs a result of a legal arrangement or instrument." Black's LawDictionary 165 (8111 ed. 2004).
120. According to MERS own admission in a Nebraska Court: “[MERS]
does not acquire mortgage loans and is therefore not a mortgage banker under §45-
702(6) because it only holds legal title to members’ mortgages in a nominee capacity
and is contractually prohibited from exercising any rights with respect to the
mortgages without the authorization of the members. Further, MERS argues that it
27
does not own the promissory notes secured by the mortgages and has no right to
payments made on the notes. MERS explains that it merely “immobilizes the
mortgage lien while transfers of the promissory notes and servicing rights continue to
occur”. (See Mortgage Elec. Reg. Sys., Inc. v. Nebraska Department of Banking,
270 Neb. 529, 704 N.W. 2d 74 (2005) (brief for MERS). The Nebraska court found
that MERS was not a mortgage banker and held that MERS is a legal title holder in
nominee capacity that permits lenders to sell and assign their interests in notes and
servicing rights to third party investors without recording each transaction.
121. Payment of county clerk fees are deliberately avoided for each MERS
transaction, which as a consequence, destroys the traditional notice given through
recordation to third parties and destroying any chain of title relating to such
transaction, except as such transfers or assignments are saved and held in the MERS
electronic database and therefore available ONLY to “insider” members but not to the
Courts or the general public. In exchange for its services, MERS is paid through
membership fees charged to its members The creation of MERS had the foreseeable
effect of avoiding transfer fees associated with the traditional recording of
assignments and transfers in the county clerk’s deed books and evading disclosure of
the time, nature and circumstances of assignments and transfers as well as the identity
of the true owner of the mortgage and promissory note.
122. Defendant MERS, as nominee and/or assignee, was not the secured
creditor of the Plaintiff’s security interest because the improperly attested assignment
conveyed no legal interest in the subject property. Even if the assignee became the
holder in due course of the note, in the absence of a security interest in the property,
the assignee does not become the “secured” creditor, and any notice received by the
residential debtor from the alleged assignee is insufficient to comply with the strict
notice requirements of §44-14-162.1.
123. As a direct, proximate, and foreseeable result of Defendants’ actions,
Plaintiff was wrongfully subjected to the threat of Sale Under Power, suffered loss
28
and damages in an amount to be decided by the Jury, and as a result of Defendants’
wrongful and fraudulent actions, he further seeks the amount of $2,000,000.00
FOURTH CAUSE OF ACTION
THEFT BY DECEPTION and CREMIN FALSI
124. Plaintiff restates and realleges the contents of paragraphs one (1) through
One hundred twenty-three (123), all general paragraphs, and all unnumbered
paragraphs of this Complaint, as if fully restated herein.
125. “Theft by deception is committed when a person "obtains property by
any deceitful means or artful practice with the intention of depriving the owner of the
property." OCGA 16-8-3 (a). "A person deceives if he intentionally: (1) Creates or
confirms another's impression of an existing fact or past event which is false and
which the accused knows or believes to be false; [or] (2) Fails to correct a false
impression of an existing fact or past event which he has previously created or
confirmed.”17
126. Defendant MERS individually and collectively, at all times knew or
should have known that Plaintiff’s Note and Security Deed were not transferred or
assigned at the time of initiation of the unlawful, non-judicial Sale Under Power.
127. The documents that defendants, through the DeMarlo/Mc&C foreclosure
mill, shows misrepresentation, fraud, forgery, perjury. The first time that Plaintiff had
seen these documents were directly following the illegal/unlawful Sale Under Power
on August 3, 2010. Defendants claimed to be providing Plaintiff with the following:
Copy of Note;
Copy of Security Deed;
Payment History from the Lender;
Copy of Recorded Assignment.
17 Avery v. Chrysler Motors Corporation, et., al., 214 Ga. App. 602 (448 SE2d 737) (1994)
29
128. The Un-Certified, unlawfully notarized, un-signed by the closing
attorney, alleged copy of the Security Deed, shows “is given on June 19, 2002 The
Grantor is Lll Xxxx”; “The Security Instrument is given to Mortgage Electronic
Registration Systems, Inc., (“MERS”) as grantee.” The alleged document then states
“FirstCity Mortgage, Inc. dba Eagle Mortgage Services (“Lender”). This document
says nothing about CitiMortgage or HUD, “Exhibit 11, pgs: 1”; on pg. 2, of “Exhibit
11” “Borrower does hereby grant…MERS…with power of sale…”; and still
discussing MERS says: “TO HAVE AND TO HOLD…unto MERS forever,…has the
right to foreclose and sell the property (3rd ¶).
129. On pg.7, ¶18: “Borrower appoints Lender attorney-in-fact for Borrower
to exercise power of sale…”; pg.8 is where the parties, and closing attorneys are to
sign, and a Notary, who has to be at the closing, is to sign and seal.
130. Defendant’s alleged Security Deed, pg.9, clearly shows negligent, fraud
upon the court, there are two different Notary’s stamped on the page, with Jennifer
Ward being one of the Notaries, and Joel B Katz the other attorney 18 “Exhibit 12”
131. No closing attorney’s signature, no witness, and the document has
Plaintiff unlawfully waive his rights covered by the Fifth and Fourteenth
Amendments, which has been held, is to be of no effect, one cannot Waive Fifth and
18 Document titled “Waiver of Borrower’s Rights”, “Closing Attorney’s Affidavit” shows: Lender: FirstCity Mortgage, Inc., dba Eagle Mortgage Services; Grantor acknowledges Power of Attorney given to Lender; and states: “Waives any and all rights…under the Fifth and Fourteenth Amendments…” to which statement Jennifer Ward claims the document was singed, and sealed; the Notary Seal shows Joel B Katz, who nowhere in any document, did Joel Katz sign anything as a Notary.
The “Closing Attorney’s Affidavit”, which begins with: “Before the undersigned, attesting officer…the undersigned closing attorney, who, having been first duly sworn according to the law…” “I reviewed with and explanation to the Borrower…”; “my opinion that Borrower knowingly…executed the Waiver…” Jennifer Ward Notarized the document, Mr. Jones was the only signer of the Closing Attorney Affidavit, and neither Ms. Ward, nor Mr. Jones were the closing attorney.
30
Fourteenth Amendment Rights, even when concerning real property deeds.
132. The alleged Assignment of Note and Security Deed, signed April 16,
2010 , wherein it is alleged that MERS was the true lender/holder of the note; in the
Assignment, MERS relinquished the Note and Security Deed to CitiMortgage, but
there were no taxes paid to Superior Court Clerk to record the document, thereby
proving the document conveyed nothing. GA statute governs the recordation of real
property documents, and a tax liability would have had to be satisfied upon the
recordation of the Assignment.
133. Further, the claim that Aaron Menne, Vice President of MERS, and Nate
Blackston, Vice President of MERS, appears to have been signed (actually neither one
signed) by the same person, who it further appears also signed as the “official
witness”, and quite possibly was actually the Notary. “Exhibit 13”
134. The June 21st letters from foreclosure mill DeMarlo/Mc&C, shows
CitiMortgage as the Lender and Servicer. “Exhibit 14”
135. Plaintiff received from the attorneys for the Defendants, the same
attorneys that performed the unlawful, non-judicial Sale Under Power, a collection
notice stating they were representing Defendant CitiMortgage as the Creditor of the
loan. Plaintiff believes Defendant CitiMortgage, and Assignee MERS were only
“Nominees” under a Security Deed, that Plaintiff had no knowledge of, and could not
the actual creditor, as Eagle Mortgage Services were the only true lenders.
136. Defendant CitiMortgage, and Assignee MERS have thereby
Fraudulently Misrepresented themselves as Creditors for undeserved gain.
137. Defendants CitiMortgage and MERS, misrepresented ownership of the
subject property by Assignment of an unenforceable instrument. A recent court case,
US Bank N.A v. Wyman, No. 466-6-09 Rdcv (Cohen, J., Oct. 20, 2009), expressed:
“This view comports with the Black’s Law definition of “nominee.” MERS has authority to act “in a very limited way” - it “holds bare legal title for the benefit of other.” Black's Law Dictionary pp.1076 (8th Ed.2004).
31
“There is no evidence that MERS’s authority extends to the transfer of the promissory note or that MERS acts as an agent for the lender. Rather than define MERS as an “agent,” the Mortgage Deed specifically defines MERS as the unique legal term “nominee,” thereby designating MERS to act “in a very limited way.” See Id. Without any further evidence as to MERS’s authority as a “nominee,” this Court finds that MERS did not have the authority to transfer the promissory note.”
138. Defendant Citi has clearly misrepresented itself as having legal standing
to bring any action against Plaintiff, or his property as there is no contract or
enforceable instrument recorded showing that Eagle Mortgage Services gave
Defendant Citi standing to assign Defendant MERS legal title, or that MERS had
standing to assign the mortgage to Citi. In Landmark National Bank v. Kesler, 2009
Kan. LEXIS 834, the Kansas Supreme Court held that a nominee company called
MERS has no right or standing to bring an action for foreclosure.
139. Eagle Mortgage Services obviously, knowingly, willingly, and wantonly
conveyed a non-existent Note and Security Deed to Defendant CitiMortgage, and
Assignee MERS on July 21, 2009, without an enforceable instrument, and the
defendants worked a fraud and thereby abused Plaintiff.
140. Either Defendants Citi, and/or MERS knowingly, willingly, wantonly,
and fraudulently acted as Attorney-in-Fact and as transfer agent of an unenforceable
instrument.
141. Defendant Citi, knowingly, willingly, and wantonly, did fraudulently
convey a fraudulent Sale Under Power and Foreclosure Deed by the wrongful use of
Plaintiff’s Power of Attorney, thus acting for and on behalf of the Assignor and
Assignee in both transactions, thereby unjustly enriching each Defendant.
142. Oddly, the signing Officer’s signature, shows the tell-tale signs that the
MERS assignments have been forged, merely initials. The one in the case at bar, not
only did the MERS signing officers use only initials, so did the Notary Public that
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Notarized the same document used to release the assignment, see “Exhibit 15”
143. It would be hard to believe that MERS had two Vice Presidents, sign a
document at the same time, using only their initials, the Notary used only initials, and
the only entity signing a name was the unofficial witness. A Jury would never fall for
the ludicrous attempt to pass off the documents as lawful.
144. Defendant Citi, and Assignee MERS purported to hold legal title with
respect to the rights conveyed by the borrower to the lender and they did not.
O.C.G.A. § 9-11-17 (a), O.C.G.A § 44-14-162(b)
145. Plaintiff believed all actions were true and in reliance thereon he
tendered an acceptance for value offer only to discover No Proof of Claim; and
Plaintiff’s good faith offer was rejected, not once, but three times; see “Exhibit 9”
146. Defendants, individually and jointly, have deceitfully committed Fraud
due to multiple incidents of misrepresenting Plaintiff, performing illegal transfers of
unenforceable instruments, illegal conveyance of note and security deed, bad faith in
alleged Sale Under Power, illegal standing to foreclose, misrepresenting position in
commerce, and filing erroneous unlawful documents in public records, defendants
have acted in bad faith, not once, but many times; see all “Exhibits”
147. The documents DeMarlo/Mc&C FAX’ed to Plaintiff as evidence of
“Payment History from the Lender”, shows that the mortgage was discharged by the
Bankruptcy Court, and Plaintiff from that time forward no longer had a loan or
mortgage with anyone; and the “payments to the lender” were in fact going to HUD,
not FirstCity, not CitiMortgage, not MERS, payments went to HUD. Nowhere is
there any documentation showing HUD assigning, selling, conveying, or anything
else Plaintiff’s real property. The only party who could have performed the Sale
Under Power, was HUD!
148. Defendants did not disclose to Plaintiff that they were using Plaintiff’s
name, note and credit to secure monies from investors.
149. Defendants did not disclose to Plaintiff that they were using his name,
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note and credit to secure monies from the Federal Reserve Bank.
150. Defendants did not disclose to Plaintiff that they got paid each and every
time they transferred and assigned his note with his signature attached thereto.
151. Plaintiff did not have an understanding that his loan would be transferred
or assigned to other parties without his consent or knowledge and without recourse; or
that the other parties would charge him other fees and interest of which he had not
agreed thereto.
152. Plaintiff suffered irreparable injury and requests compensatory damages
due to fraudulent procurement of his note.
153. Plaintiff suffered irreparable injury and requests compensatory damages
due to Unauthorized Use of his Signature and Name.
154. Plaintiff suffered irreparable injury and requests compensatory damages
due to Unauthorized Use of his Signature and Name for the purpose of securing funds
and funding.
155. That an actual case and controversy exists in that some or all of the
Defendants, or their successors and assigns are attempting to deprive Plaintiff of his
valuable right to own and use the subject real estate to which Llll Cccc, had legal,
rightful title and ownership.
156. Plaintiff’s valuable right to own and use the subject real estate is under
imminent infringement because the Defendant, or their successors and assigns, have
illegally and wrongfully conducted a Sale Under Power of said real estate at a non-
judicial foreclosure sale on August 3, 2010, under the color of law and without lawful
authority to liquidate said property, contrary to the laws of the United States and the
State of Georgia.
157. Plaintiff is entitled to punitive damages and attorney’s fee as a result of
Defendant wrongful and fraudulent actions against him.
158. Plaintiff is entitled to punitive damages and attorney’s fee as a result of
Defendant wrongful and fraudulent actions against him.
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159. By reason of the foregoing and as a direct, proximate, and foreseeable
result of Defendants’ wrongful and fraudulent actions, Plaintiff has suffered loss and
damages, for which Plaintiff seeks the amount of $2,000,000.00.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment as follows:
1) Judgment in favor of the Plaintiff;
2) This Court sign an Order Setting Aside the unlawful and illegal
Sale Under Power;
3) This Court sign an order granting continuing temporary
injunctive relief and//or a continuing Temporary Restraining Order
against the defendants, some or all Defendants and/or their successors,
nominees, and/or assigns, and all others from further dispersing and
damaging private property that legally should be titled to the Plaintiff;
4) That this Court DECLARE that Plaintiff is entitled to rescission
of the entire mortgage and promissory note amounting to clear title to the
property with fixtures as a result of the aforementioned averments;
5) As a result of some or all of the Defendant(s), and/or their
successors, nominees, and/or assigns aforesaid violations, they are liable
to Plaintiff in an amount not less than $500,000.00 and up to
$2,000,000.00, for each and every violation, in an amount for the
violations after proven;
6) Damages for the Unfair and Deceptive Acts and Practices in the
amount of $400,000.00 for each and every violation, in an amount of
$800,000.00, for the violations after proven;
6) The Court DECLARE that since this action was commenced,
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some or all of the Defendant(s), and/or their successors', nominees,
and/or assigns' have violated, and continue to violate the Consumer
Credit Protection Act, 1 5 U.S .C. §l601 et seq., and Regulation Z, 12
C .F.R. §226 .4 and 5, which was adopted pursuant to such Act, by
failing to properly make the disclosures required by the Act and
Regulation Z, and award damages as required by law;
7) The Court DECLARE Defendant(s), and/or their successors,
nominees, and/or assigns have failed to credit and/or refund the Plaintiff
deposit account as required by 12 C.F.R. § 226.21;
8) Judgment Declaring that Defendants’ practices as described
herein, violated the Fair Debt Collection Act.
10) Judgment giving Plaintiff Cost of litigation as provided in 15
U.S.C. §1601 et.seq. and Reasonable Attorney's fees, expert witness fees
and other costs.
11) Defendant(s), and/or successors, nominees, and./or assigns be
permanently enjoined from conducting a Sale Under Power of Plaintiff’s
real property, and deem that Plaintiff has full and complete title to said
property.
12) Judgment Setting Aside any past or pending Sale Under Power of
the deed and granting Clear Title and a Order requiring Defendant and
their attorneys to Quiet the Title on Plaintiff’s property located at 1701
Charmeth Rd., Lithonia, GA 30058, and any extraordinary equitable
and/or injunctive relief as permitted by law or equity;
13) Judgment of punitive damages and attorney’s fee as a result of
Defendants’ actions against Plaintiff in the amount of $3,000,000.00
against all parties jointly and severally.
14) Trial by Jury as to the Damages in the amount of $14,000,000.00
against all parties jointly and severally;
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15) Plaintiff recover such other and further relief as to this Honorable
Court deems meet, just and proper.
Respectfully submitted this 22nd day December, 2010
By: ____________________________CCC
VERIFICATION
I, Plaintiff CCC, having been duly sworn, under penalty of perjury, deposes
and says that I am over the age of eighteen (18) and mentally competent to testify. I
have prepared and read the foregoing pleading, the facts stated therein are from
firsthand knowledge and are true and correct.
I further depose while sworn and under penalty of perjury, that all Exhibits are true, correct, unaltered copies.
Subscribed and sworn to before me, this 22nd day of December, 2010 _____________________
___________________________
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NOTARY PUBLIC, State of Georgia
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