Case.ga Fulton County Wrongful Foreclosure 1

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<p>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, &amp; Professionally as an employee of McCurdy &amp; Candler); Defendants JURY TRIAL DEMANDED FILE NO: _______________ CIVIL ACTION</p> <p>VERIFIED COMPLAINT FOR DECLARATORY RELIEF, INJUNCTIVE RELIEF AND DAMAGES</p> <p>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. INTRODUCTION1.</p> <p>In this action, Plaintiff seeks inter alia, an injunction of eviction/</p> <p>dispossessory proceedings, based upon Defendants 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.</p> <p>2.</p> <p>Georgia has longstanding, statutorily prescribed non-judicial procedures</p> <p>by Power of Sale with minimal consumer protections for homeowners. O.C.G.A. 44-14-162 et. seq.3.</p> <p>The law is clear, however, that entities foreclosing upon homeowners</p> <p>must1 strictly comply with Georgias 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.</p> <p>Many foreclosing entities, including Defendants, have dispensed with</p> <p>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.</p> <p>Georgias foreclosure process has become undisciplined, and lawless.</p> <p>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.26.</p> <p>Plaintiff seeks relief for the Defendants actions in the wrongful Plaintiff seeks declaratory and injunctive relief</p> <p>foreclosure of his residence.</p> <p>concerning a foreclosure conducted by entities who did/do not have standing to pursue and perform such foreclosures, declaratory and injunctive relief concerning the latestWhenever 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 19931 2</p> <p>As is in this case. The debt had been eliminated in Bankruptcy.2</p> <p>notice of sale under power letter Plaintiff has received, and an injunction of future eviction/dispossessory actions that defendants may pursue against Plaintiff, and procedures to void/verify the validity of the underlying sale.7.</p> <p>Plaintiff further seeks injunctive relief to prevent defendants from</p> <p>continuing their harmful behavior toward Georgia homeowners. JURISDICTION AND VENUE 8.9.</p> <p>This court has subject matter jurisdiction over this action because the Venue is proper in Fulton County; It is the locale for the Registered</p> <p>matter involves Georgia real property and foreclosure Rules and statutes. Agents3, and/or the principal place of business for defendants is located for CitiMortgage, Inc.; Anthony DeMarlo of McCurdy &amp; Candler; Ms. Kent from Burr &amp; Forman THE PARTIES10.</p> <p>Plaintiff, Retired, First Sergeant Lll Cccc, disabled, and proceeding in Defendant CitiMortgage, Inc. (hereinafter Citi), is a Foreign For-</p> <p>propria persona resides at 111 ACZ4.11.</p> <p>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.12.3</p> <p>Defendants Anthony DeMarlo /McCurdy &amp; Candler, LLC,5</p> <p>CitiMortgage and Burr &amp; Formans Registered Agents are in Fulton County, and McCurdy &amp; Candlers principal place of business/registered agent is in Fulton County. 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 Records4 5</p> <p>DeMarlo/McCurdy &amp; Candler were involved prior to and throughout the unlawful Sale3</p> <p>(hereinafter Mc&amp;C, DeMarlo, or McCurdy &amp; 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 &amp; 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 its clients CitiMortgage, instituted and pursued non-judicial foreclosure against Plaintiff with full knowledge that it lacked authority to do so.13.</p> <p>Defendant Ashby L. Kent, Esq.6 ( hereinafter Kent) individually and</p> <p>as employee/representative of Burr &amp; Forman, LLP,(hereinafter B&amp;F); B&amp;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 3036314.</p> <p>Defendants Mortgage Electronic Registration Systems, Inc., (hereinafter</p> <p>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</p> <p>Under Power. After the first Sale Under Power, Ms. Kent/Burr &amp; Forman took over. DeMarlo/McCurdy &amp; Candler came back on the scene during the second week of 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. To Plaintiffs knowledge, although Ms. Kent/Burr &amp; 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&amp; Forman, LLP.6</p> <p>4</p> <p>place within and throughout the State of Georgia.16.</p> <p>The defendants,7 and each of them, were the agents, employees,</p> <p>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. FACTS17.</p> <p>On or about June 19, 2002, Plaintiff executed a Note and Security Deed</p> <p>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 Plaintiffs 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 Foreclosure e) 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,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.7</p> <p>5</p> <p>(ii) the loss of possession was not the result of a transfer 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)</p> <p>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.</p> <p>STANDING21.</p> <p>Plaintiff reiterates, realleges, and incorporates paragraphs one (1)</p> <p>through twenty (20), all general, and all unnumbered paragraphs, as if fully restated herein.22.</p> <p>At closing, Plaintiff was only of the knowledge that FirstCity Mortgage,</p> <p>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.</p> <p>Before Plaintiff filed Chapter 7 Bankruptcy, there had been no default During the Bankruptcy proceedings, even though Plaintiff listed6</p> <p>concerning mortgage payments, and no lien recorded in the County Records. 24.</p> <p>CitiMortgage as the entity to whom he was currently making mortgage payments, 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.</p> <p>To the best of Plaintiffs belief, at some time unknown to Plaintiff, the</p> <p>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.</p> <p>At the time of foreclosure, it was/still is, unknown who held and owned</p> <p>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.</p> <p>A letter dated</p> <p>June 21, 2010, Mr. DeMarlo/Mc&amp;C</p> <p>affirmatively</p> <p>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: FRAUD28.</p> <p>Plaintiff reiterates, realleges, and incorporates paragraphs one (1)</p> <p>through twenty-seven (27), all general paragraphs, and all unnumbered paragraphs, asPlaintiff recently received a letter dated December 1, 2010 from Mr. DeMarlo from Mc&amp;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.8</p> <p>7</p> <p>if fully restated herein 29. Regarding the matter of Fraud, it is apparent that the jostling of accounting maneuvers created by the availability of the Plaintiffs 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.</p> <p>Mc&amp;C, who had provided Plaintiff with written Notice that their client</p> <p>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.</p> <p>Further, Defendants knowingly, willingly, wantonly, fraudulently, and</p> <p>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.</p> <p>Defendants DeMarlo/Mc&amp;C ran an ad in the Champion Newspaper, but</p> <p>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.</p> <p>The day of the Sale Under Power, after the sale was completed, Mc&amp;C</p> <p>FAXed to Plaintiffs wife, at her place of employ, numerous pages, finally providing8</p> <p>some of what Plaintiff had attempted to obtain in a Qualified Written Reque...</p>

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