neal et al vs tribeca lending corp (research)

5/28/2018 Neal Et Al vs Tribeca Lending Corp (Research)

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FILED IN CLERK S OFFlCEU.S-D.C. RomeJAN 28 2 14

UNITED STATES DISTRICT COURT JAMES N HATTEN ClerkFOR THE NORTHERN DISTRICT OF GEORGfX: ~ \ DeputyCierk

R.OME DIVISION ~ }

JANET C. NEAL and ROBERT ) CML ACTION FILEL. NEAL, SR., ) NO.:Petitioners, )

: 1 - CV 18v. ))"TRlBECA LENDING CORP.; )\(FRANKLIN MORTGAGE ASSET , )TRUST 2009-A FRANKLIN CREDIT )MANAGEMENT CORP); MORTGAGE )ELECTRONIC REGISTRATION )SYS=rEMS, l N C ~ W E L L S FARGO )BANK, N.A.; and"VNT TRUST SERIES )2010-2 IN TRUST FOR THE )REGISTERED HOLDERS OF VNT )TRUST SERIES 20122, and JOHN DOES )1-500,UNKNOWN CERTIFICATE HOLDERS )OF VNT TRUST SERIES 2012-2, )Respondents. )

)VERIFIED PETITION FOB DECLARATORY REI lEr TO QUIET TITLE

O ~ G A 3-60 ET. E O ~COME NOW the Petitioners, Janet C. Neal and Robert L. NeaL Sr. and .

Petition this.Honorable Court to Quiet Title to Petitioners property and to Declarethat Respondents, and each of them, have no interest in and to Petitioners Pl'Qperty,

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Case 4:14-cv-00018-HLM Document 1 Filed 01/28/14 Page 1 of 35


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and as grounds therefore would state as follows:IDENTITYOF P RTIES ND L ND

Petitioners are citizens of the State ofGeorgia County ofBartow andpurchased residential property in Bartow County Georgia known and referred toas 906 Jones Mill o a d ~ a r t e r s v i l l e ~ Georgia 30120 and more particularlydescribed as follows:

TRACTlAll that tract or parcel of land lying and being in Land Lot 27 of the th

District and 3 d Section ofBartow County. Georgia and being more particularlydescribed as follows:BEGINNING at the point which marks the intersection of the western right-ofway of Jones Mill Road and the northern right ofway of Pine Vista Circle andfrom said point run in a generally northerly direction North 03 degrees 42 minutes5S seconds East and following the arc of the curvature of said Jones Mill Roadright ofwayan arc distance of46.12 feet to an iron pin which marks the true pointofbeginning. From said true point ofbeginning run North 29 degrees 38 minutes8 seconds West a distance of 177.02 feet to an iron pin; thence run North 2

degrees 28 minutes 42 seconds West a distance of 170.41 feet; thence run South 4

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degrees 04 minutes 21 seconds West a distance of302 33feet to an iron pin andother true point of beginning. Said tract containing 0.647 acres, more or less.TRACT 2All that tract or parcel of land lying and being on the west side of Jones Mill Roadin Lot of Land Number 37 and 38 of the 4th District of the 3msection of BartowCounty, Georgia, more particularly described as being subdivision lot number 6 ofthe Thomas H Bennett u d i v i s i o ~ a plat of which is recorded in said deedrecords in Plat Book 4 Page 2 to which reference is made for a more definitedescription, said lot beginning at the point where the west side of Jones Mill Roadintersects the north right of way line of the Georgia Power Transmission right ofway, and running thence in a northerly direction 200 teet, more or less. along saidpublic road to the property of Francis 1-l Pete) McDaniel; thence North 84 degrees32 minutes West along said McDaniel property a distance of 209 feet, more or less,to the southwest comer of said McDaniel property; thence South 5 degrees 28minutes West 303 feet, more or less, to the north right of way line of said GeorgiaPower Company transmission line easement; thence North 70 degrees 13 minutesEast along said transmission line right of way 248 feet, more or less. to thebeginning point.Being the fee simple property which, by general warranty deed dated March 23,1998. and recorded in the office of the registrar of deeds of the County of Bartow,

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County, in Book 1103, Page 229, was granted and conveyed by Janet C. Neal untoJanet C. Neal and Robert L Neal, Sr. Hereinafter, this address and legaldescription as well as all improvements thereon shall be known and referred to asPetitioner s Property.

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Respondent Tribeca Lending Corp. is a New York corporation and a citizenof ewYork, doing business at 101 Hudson Street, 25 t Floor, Jersey City, ewJersey 07302. This company is currently active according to the ew YorkSecretary of State s Office. Said Respondent was the originating lender in regard tothe subject transaction.

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Respondent Franklin Credit Management Corp is a ew York corporationand citizen of the State of ewYork, doing business at 101 Hudson Street, JerseyCity, ew Jersey 07302, engaged in servicing and resolution of performing andnonperforming residential mortgage loans and is servicer for the subject loan forRespondent Wells Fargo Bank, N .A.

4Respondent Wells Fargo Bank, N.A. is a national banking association and a

citizen of the State ofCalifornia doing business at 420 Montgomery Street, San

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Francisco. California 94163 and is listed as certificate trustee in trust for theregistered holders ofVNT Trust Series 2010-2.

5Respondent VNT Trust Series 2010-2 s a securitized trust fonned January

6 2010 and is registered in and a citizen of the State of Delaware doing businessat 919 North Market Street Suite 1600 Wilmington. Delaware 19801.

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Respondents John Does 1-500 are the certificate holders of certificatesissued by the VNT Trust Series 2010-2. Respondent Wells Fargo Bank. N.A. sListed as th agent for trustee Wells Fargo Delaware Trust Company N A at 919North Market Street Suite 1600 Wilmington. Delaware 19801.

JURISDICTION AND VENUE7

This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1332 forreasons set forth below.

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Petitioners property is located in Bartow County Georgia and the territorialboundaries of this District Court embrace this county. Petitioners are citizens of theState of Georgia.

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9Respondents are citizens of the States ofNew York, California and

Delaware. There is complete diversity of citizenship between Petitioners andRespondents.

10.Petitioners seek to quiet title to Petitioner's property for $150,000.00. The

amount in controversy exceeds $75,000.00.11.

This is an n r m proceeding pursuant to O.C.G.A. 23-3-60 et. seq.. directed against Petitioner's property situated within the boundaries of Bartow

County, Georgia. By virtue of a Note and Security Deed dated June 15, 2007,Petitioners acquired an equitable interest in the title. Petitioners can live on thisland and only petitioners have the right to sell this home.

12.Respondents have recorded an interest in Petitioner's Property or claim

some interest n Petitioner's Property.13

On June 15 2007 Petitioners agreed to borrow $150,000.00from TribecaLending Corp., secured by Petitioner's Property. Two instruments were signed byPetitioners on this date, the Adjustable Rate Note and the Security Deed. Since

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Petitioners are the signatories, the Adjustable Rate Note and Security Deed areboth bearer instruments.

14.Paragraph 1 of the Adjustable Rate Note states in pertinent part: 'I

understand that the Lender may transfer this Note. Lender or anyone who takes thisNote by transfer and who is entitled to receive payments under this Note is calledthe Note Holder .

15.D.C.C. 3-110 (c) stipulates ow a negotiable instrument may identify the

person to who it is made payable. In pertinent part, this statute states:(c) A person to whom an instrument is payable may be identified in any way,

including by name, identifying number, office or account number .. ."16.

In the vernacular of the Dniform Commercial Code, Petitioner's note hasbeen made payable to the person entitled to receive Petitioner's payments.

17.Paragraph 7 (c) ofPetitioner's Note states in pertinent part:(C) Notice ofDefaultIf1 am in default, the Note Holder may send me a written notice telling me

that if1 do not pay the overdue amount by a certain date, the Note Holder may

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require me to p y immediately the full amount ofPrincipal which has not beenpaid and all the interest that lowe on that amount

18.The substantive law governing enforcement of a negotiable instrument is set

forth in U.C.S. 3-301 and states in pertinent part:Person entitled to enforce an instrument means (i) the holder of the

instrument, (ii) a nonholder in possession ofthe instrument who has the rights of aholder

19.Paragraph I of Petitioner's Note declares ''who takes this Note by transfer

and who is entitled to receive payments under this Note is cal led the Note HolderBy stipulating that the Note Holder is the person entitled to Plaintiffs payment,this paragraph rejects part (i) ofU C C 3-301 and adopts instead part (ii),nonholder who has the rights ofa holder

20.Paragraph 7 (C) stipulates that only the Note Holder can send out a Notice of

Default. Paragraphs 1 and 7 (C) of Petitioners Note reserve enforcementexclusively to the person [or persons] entitled to receive Petit ioner's payment. Thisperson s the Note Holder These terms are embedded as indelibly into the

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foundation document of this transaction as are the names of the parties and theamount being loaned.

21.The unambiguous meaning ofParagraphs 1 and 7 (C) ofPetitioner s Note

state that only the party entitled to Petitioners payments can been the Note Holderand successor in interest to the Lender. From this factually incontrovertiblepremise, this legal corollary is self-evident. Since the Note Holder is the only partythat can initiate a foreclosure proceeding, this act of enforcement can only beperformed by the person [or persons] that are entitled to receive Petitionerspayments.

22.The fIrst paragraph ofPetitioners Note names the person entitled to

payments as the beneficiary This same person is authorized to exercise the pow rto sell clause in a Security Deed in Georgia. The only person who can exercise thepower to sell clause in Georgia s non-judicial foreclosure statute is the partyentitled to the borrower s payments.

23.or reason which will become apparent after examining documents from the

Securities and Exchange Commission search engine, the person entitled to enforcePetitioner s Note within the meaning of V.C.C. 3-301 (ii) is in fact a group of

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p e o p l ~ The parties entitled to Petitioner's payments are cmrent holders ofmortgage-backed certificates owning a pro rata sbate ofPetitioner's Note. Selfauthenticating documents filed with the Secwities and Exchange Commissiondeclare this group to be 1he owners of these Notes for ll purposes whatsoever.

24.

Mortgage Electronic Registration Systems (MERS) is descnOed as anominee or Tn beca Lending Cotp. and its successors n interest. Although theSecurity eedestablishes MERS as 1he beneficiary, by its own self-imposedadmission, MERS is not making any contribution worthy of this designation.Paragraph 2 ofMERS s Terms nd Condittons s t a ~ n pertinent part: 2. TheMember, at its own expense, shall promptly, or as soon as r c t i c b l e ~ causeMERS to appear n the appropriate public records as 1he mortgagee ofrecord withrespect to each mortgage loan that the Member registers on the MERS System.MERS shall serve s mortgagee o frecord with respect to all such mortgage loanssolely l Sa ~ . i l l a n a d m i n i s t r a t i v e capacity for the beneficial owner orowrren fereo fronrtime to time. MERS shall have no rights whatsoever to any

on account ofsuch mortgage loans to any servicing rights relatedto such loans or to ny mortgaged properties securing such mortgageloans. MERSagrees not to assert any rights (other than rights specified n theGoveming.Documents) with respect to such mortgage loans or mortgaged

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properties. References herein to "mortgage(s)" and "mortgagee f r o ~ shallinclude deed(s) of trust and beneficiary under a deed oftrust and any other form ofsecurity instrument under applicable state law.MER S is not a vehicle for creating and transferring beneficial interests.Paragraph 6 MER S and the Member agree that: (i) the MERS ystem is not avehicleor creating or transferring beneficial interests in mortgage loans, (ii)transfers ofservicing interests reflected on the MERS System are subject to theconsent ofthe beneficial ownerof the mortgage loans, and (iii) membeIShip in

"MERS or use ofthe MERS System shall not modify or supersede any agreementbetween or among the Members having interests in mortgage loans registered Qilthe MERS System.

25.MBRS has ruled out any entitlement to Petitioners payments. This also

means that MERS cannot qualify as the Note Holder under paragraph 1ofPetitioner's Note.

26.The inability ofMERS to hold any interest greater than just legal title, which

is no ownership interest whatsoever, is also affirmed in its Terms and Conditions.See paragraph 6 ofMERS Terms and Conditions.



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27.Under this Security Deed, the powers of the Lender are pervasive. This is

declared in the Transfer ofRights in Property clause.28.

In pertinent part, the Transfer ofRights paragraph secures to Lender:(i) The repayment of the Loan and (ii) performance ofBorrower's covenants

under this security instrument. Under Acceleration, Remedies, only the Lender atits option, can invoke the power of sale and pursue foreclosure. No other party butthe Lender or their successor in interest is allowed to exercise this authority.

29.Under well settled property law concepts, only a party with an ownership

interest in the note can enforce the security deed. The Restatement (Third) ofProperty, Mortgages 5-4(c) states, a mortgage may be enforced only by, or onbehalfot: a person who is entitled to enforce the obligation the mortgage secures.A mortgage servicer and MERS have no ownership interest in the note.

30.After Petitioners loan was made, this Note and Security Deed was subjected

to a series of transfers and a succession ofnew beneficial owners. The purposeserved by these transfers was to convert these debt instruments into a debtcommodity suitable for serving as collateral for newly issued mortgage-backed

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securities. Petitioner s Note and Security Deed became part of a pool ofmortgagefor a secured transaction listed on the Securities and Exchange Commission sEDGAR search engine.

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After these sales, Petitioner s Security Deed was bundled and sold to a trustcalled VNT Trust Series 2010-2 [hereinafter referred to as the Trust]. The transferofsecurity deeds and mortgages to this Trust is documented in the TrustAgreement. A special purpose vehicle used by VNT Trust for bundling andtransferring mortgages is the Depositor of loans.

32.After assigning all of its right, title and interest to Petitioner s Note and

Security Deed to t is Trust, Tribeca Lending Corp. could no longer claim anyentitlement to Petitioner s payments. hen Tnooca Lending Corp. lost itsentitlement to these payments, it relinquished as well its right to be called the Noteolder on Petitioners Note and to be called the Lender on Petitioner s Security

Deed.33.

This Trust acts as an apparatus for converting mortgages into a debtcommodity. Each mortgage has now been transferred to VNT Trust Series 2010-2,Mortgage-backed securities are issued to this Trust and bonded to a pool of

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mortgages. When this is complete, mortgage-backed securities and their assignedpool of instruments become inseparable. This transformation if documented n theTrust Agreement.

34.This Trust is authorized to issue pass through securities pursuant to 26

U.S.C. 671to 670 for the Internal Revenue Service grantor trust rules.35.

In a Persons Deemed Owners c l u s e ~ the Certificate holders or investors,own the beneficial interest in these instruments. he Persons Deemed Ownersclause appears in every pass through securities offering. This pass-through featureenables the trust to be tax exempt, since it owns nothing.

36.Statements made in a filing for the Securities and Exchange Commission are

subject to the heightened standard imposed by the Sarbanes-OxleyAct of2002.his Act makes signatories accountable for the accuracy of all information

disclosed and subject to penalties ranging from being delisting to multimilliondollar fines and imprisonment. This statement in the Persons Deemed Ownersclause also runs against the interest of the maker. Statements running against theinterest of the maker are extremely difficult to overcome. The guilty plea aspect of

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this statement, coupled with its presence in a filing before the Securities andExchange Commission, makes this statement worth of belief.

37.This Persons Deemed Owners clause closes the loop opened in the first

paragraph of Petitioner s Note by identifying the persons entitled to receivePlaintiff s payments. Holders of mortgage-backed certificates owning a fractionalshare of Petitioner s note are entitled to these payments. Under grantor trust rulesof the IRS for pass-through securities, money generated by assets held in this Trustestate can only be paid to these owners; and this arrangement cannot be altered.

38.Because of their fractional ownership interests in Pet itioner s ote and

Security Deed, privity of contract is established been these note holders i.e.investors and Petitioner. This new alignment is permanent. It cannot be disturbed.

39.Certificate holders, i.e. investors, hold the only fmandal stake in Petitioner s

Note. They are the only parties benefitted or injured by the outcome.40.

Since holders of mortgage-backed securities are permanently entitled toPlaintiff s payments, these parties are also identified under the UniformCommercial Code as the Note Holder Pursuant to U.C.C. 3-110 (c), Petitioner s

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Note is payable to these investors and no one else. In accord with U.C.C. 3-301(ii), only investors can initiate an enforcement action.

41.Paragraph 22 of Petitioner s Security Deed states that the Lender t its

option may accelerate payment. Current holders of mortgage-backed securitiesowning a pro rata share ofPetitioner s Note and Security Deed are exclusivelyentitled to enforce this instrument. These investors are the Lender s successor ininterest.

42.Under the terms of the Note and Security Deed, the only parties entitled to

issue a Notice of Default and require accelerated payments are holders ofmortgage-backed certificates owning fractional shares of Petitioner s Note,colJtctively exceeding a majority of the ownership interests outstanding.

43_Holders of mortgage-backed certificates owning pro rata shares of

Petitioner s loan are not disclosed at the Bartow County Recorder s Office. Thereis no document on file at the Recorder s Office attesting to the fact that thesebeneficial owners authorized anyone to act on their behalf. The Lender s truesuccessor in interest and the real p rty in interest at this time, h s been excludedfrom the one place where all ownership interests must necessarily be reflected

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44.Mortgage backed certificates will not be issued in the name ofeach investor.

Instead, Certificates are sent to a Depository Trust Depository Trust providescentralized administrative services for funding sources and their recipients. Itsmission is to route and connect a source of funds to each recipient. DepositoryTrust also has a pseudonym called Cede Co.

45.Every mortgage-backed certificate will reflect th pseudonym as owner of

record instead of these investors. Depository Trust is no just the passive recipientof mortgage-backed securities. Depository Trust s inserted between the Trustee

ank and the investors. t acts as the investors' authorized representative,empowered to speak on behalfof all Certificate holders. Depository Trust can actas the authorized representative for investors.

46.The rights of investors which can be exercised are restricted to just the rules

and agreements ofDepository Trust.47.

Investor names are not on ownership records. Investors are subordinated to acompany that can be counted upon to behave in a submissive and accommodating

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manner. They have no right to communicate with anyone but Depository Trustand then they may discuss rules relating to Depository Trust. Investors aresystematically and methodically ostracized from playing any role whatsoever inmortgage backed transactions. Investors are not even allowed to discover what istaking place. There is no functioning lender.

48.The Trust Agreement provides that the Trustee is to protect present and

future Certificate-holders welfare. A framework has been established blocking allaccess and communication lines between investors and the Indenture Trustee. Thelegal principal is that specific contract terms always trump general contract terms.The following specific terms overrule these ambiguous and general terms ofprotection.

49.The Trustee has blanket immunity from all risk and no accountability for

protecting the interest of Certificateholders.50.

The Trustee will incur no liability or obligation toward any investor.5 .

Granting the Trustee Bank immunity from risk of loss and rendering themharmless from incurring any liability obligation or duty toward an investor

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undermines any pretense of an agency or fiduciary relationship. The agent musttake responsibility for the principal s welfare, particularly when this principal hasbeen rendered defenseless by barriers erected around them. Equally as important,no such relationship is established at the local recorder s office with investors.

52.On June 24 2010 Tribeca Lending Corporation assigned its interest to

Franklin Mortgage Asset Trust 2009-A, and referencing the MERS documentsecurity deed. On June 28, 2012, Franklin Asset Trust 2009-A assigned its interestto Wells Fargo Bank, N.A. as Certificate Trustee not in its individual capacity butsolely as Certificate Trustee in Trust for Registered Holders of VNT Trust Series2010-2, also referencing the security deed where MERS was listed as mortgagee.

53.The signers of these Assignments, M. Arndt and Glenn Murphy,

respectively, are acting as Vice President and Senior Vice President. Thesesignatories are MERS Certifying Officers. M. Arndt and Glenn Murphy are alsofull time employees and officers of the mortgage servicers servicing this loan.These mortgage servicers appointed this MERS Certifying Officer to this positionand are totally responsible for all acts which they perform.

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54.The standard Resolution Appointing a MERS Certifying Officer gives them

authority to "assign the lien of any mortgage loan naming M RS as the mortgagee,if the mortgage loan if the mortgage loan is registered on the M RS system. M.Ardnt and Glenn Murphy have exercised this authority in favor of FranklinMortgage Asset Trust and Wells Fargo Bank, N.A. as Certificate Trustee not in itsindividual capacity but solely as certificate trustee in trust for registered holders ofVNT Trust Series 2010-2.

55.Assigning the full beneficial interest of a security instrument is not a

servicing obligation. This can only be done by a party holding the full beneficialinterest, which can only be the certificate holders. Neither the mortgage servicersnor MERS holds any ownership interest in Petitioner 's loan. Mortgage Servicerscannot perform acts reserved to owners.

56.The true successors in interest to the Lender are investors whose authority

has been so circumscribed and marginalized they do not even have the right todiscover what actions are taken concerning loans which they own.

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57.fa mortgage servicer were to first consult with the Lender's true successors

in interest, consisting ofenough investors to collectively own more than 50 ofthe debt, they would have to make hundreds of telephone calls and then they wouldbe talking to people with little knowledge of this business. The task ofmakinghundreds of telephone calls is not just bizarre, it would be unthinkable.

58.Calling Depository Trust, which is the owner of record for all issued

securities, would not satisfy this approval requirement. Depository Trust is notlisted in the local recorder's office. t holds no recorded ownership interest in anyof these mortgages. Secondly, Depository Trust has nothing to .gain or lose fromthe outcome and nothing invested.

59.MERS Certifying Officers and person signing on behalfof mortgage

servicers get their instructions from the mortgage servicers that write theirpaycheck, and the ladder ofauthority stops there. All of the decisions are madewithout consulting the Lender's successor, the certificate holders, for one verygood reason. There is no functioning lender. Decisions made by CertifyingOfficers are all null and void for lack ofauthority.

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60.Pursuant to D.C.C. 3-308 (a), Petitioners challenge the authenticity and

legitimacy of the signatories of the Assignments ofMortgage and the authenticityand legitimacy of them to effect any change or transfer of the beneficial ownershipofPetitioner s security deed.

61.The Statute of Frauds invalidate these Assignment ofMortgage (Security

Deed). The Statute ofFrauds requires l) a writing relinquishing the last recordedowner s interest in the security instrument; and (2) this writing must be signed byan authorized officer of the owner. When formalities for the statute of frauds arefollowed, the new owner acquires the original lender s contractual relationshipwith the borrower. This is a borrower approved interest in land. Foreclosurestatutes require the acquisition of the borrower approved interest in land as a prerequisite for asserting the statutory power of sale. this borrower approvedinterest in land is not acquired, foreclosure cannot be pursued.

62.Respondents never acquired the borrower s approved interest in land,

because the formalities of the statute of frauds were never followed. There is noteven a signature on the Security Deed confirming a relationship between theoriginal lender and Respondents. As a result, Respondents have not acquired the



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original lender s contractual relationship with the borrower and the borrowerapproved interest in land. Respondents cannot convey an interest that they neveracquired.

63.U.C.C. 3-203 addresses the transfer of a bearer instrument by a person other

than its issuer for the purpose of giving another person the right to enforce itsterms. This statute is relevant because Petitioner s Note and Security Deed arebearer instruments. Every assignment is a prelude to enforcement.

64.U.C.C. 3-203 (b) dictates what must take place when a bearer instrument is

transferred for the purpose of enforcement and states in relevant part:

(b) Transfer of n instrument, whether or not the transfer is a negotiation,vests in the transferee any right of the transferor to enforce the instrument,including any right as a holder in due course.

65.Pursuant to paragraph (b) ofU.C.C.3-203, ownership rights in land are also

subject to principals of property law independent ofArticle 3 of the UniformCommercial Code. Because of special safeguards in the form of recording statutes,the owner of ninterest in land must prove rightful possession. This means that n

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assignor must prove that their prior holder was endowed with the full beneficialinterest. Official comment 2 for U.C.S.3-203 (b) explains how this works.Because the transferee's rights are derivative of the transferor's right's those

rights must e proved The instrument, by its terms, is not payable to thetransferee and the transferee must account for possession of the unendorsedinstrument y proving the transaction through which the transferee acquired it.

(a) n an action with respect to an instrument, the authenticity of, and authorityto make each signature on the instrument is admitted unless specifically denied inthe pleadings f the validity ofa signature is denied in the pleadings, the burden ofestablishing validity is on the person claiming validity, but the signature ispresumed to be authentic and authorized unless the action is to enforce the liabilityof the purported signer and the signer is dead or incompetent at the time of trial ofthe issue ofvalidity of the signature. f an action to enforce the instrument isbrought against a peson as the undisclosed principal ofa person who signed theinstrument as a party to the instrument, the plaintiff has the burden of establishingthat the defendant is liable on the instrument as a represented person undersubdivision (a) ofSection 3402.

(b) f the validity of signatures is admitted or proved and there is compliancewith subdivision (a), a plaintiff producing the instrument is entitled to payment ifthe plaintiff producing the instrument is entitled to payment if the plaintiff proves

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entitlement to enforce the instrument under Section 3301, unless the defendantproves a defense or claim in recoupment. a defense or claim in recoupment isproved, the right to payment of the plaintiff is subject to the defense or claim,except to the extent the plaintiff proves that the plaintiff has rights of a holder indue course which are not subject to the defense or claim.

66.Restatement (Third) ofProperty, Mortgages 5-4 (c) a mortgage may be

enforced only by or on eh lfof a person who is entitled to enforce the obligationthe mortgage secures. The Restatement is considered authoritative because it iscompiled by experts. Cases frequently cite restatement provisions as authority tosupport their rulings.

67.By stipulating for an unendorsed instrument a seller must prove the

transaction through which it was acquired this Comment is specifically referringto the contractual relationship with the borrower and the borrower approvedinterest in land is bundled and inextricably intertwined with that contractualrelationship. This comment is also referencing proof that the original holder of thiscontractual relationship has relinquished this contractual interest in the seller sfavor. These terms are all direct references to the statute of frauds.

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68.V C C 3-203 (d) sets forth the rule of law that if anything less than the

entire beneficial interest is conveyed; the transferee can receive no greater interestthan that which was held by the transferor. This rule of law applies to theassignments referenced in this Petition. The true holder of this ownership interestin land cannot be ascertained from terms in this assignment. f the holder of abeneficial interest cannot be established, the interest being conveyed s alsoillusory and inadequate for enforcement.

69.n addition Respondents are barred by their membership rules in MERS

from acquiring any beneficial interest in its own name for a property posted on theMERS Registry.

70.Respondents cannot prove that they hold rightful possession of the full

beneficial interest in Petitioner s instruments. Respondents cannot even prove thatthey hold any beneficial interest whatsoever in Petitioner s Note and SecurityDeed. Three problems are presented, and each can be independently fatal. (1) Thefull beneficial interest test imposed by V C C 3-203 (b) and (d). (2) Its failure tofollow formalities imposed by the statute of frauds subjects it to the deterrent in

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this law and renders the transfer invalid. (3) It has not specified the source ofauthority directing them to take this action.

FIRST QUIET TITL CLAIM71.

Petitioners challenge the interest held by Respondent and Petitionersmaintain that the interest of these parties lacks authenticity in essence.

72.The true beneficial owners ofPetitioner's Property are investors, each

holding a proportional and typically miniscule interest in Petitioner's Note andSecurity Deed. The only parties with something to gain or lose from the outcomeof Petitioner's loan are those investors. Investors are exclusively entitled to

Petitioner's payments. Under the terms in the Note, these investors are the NoteHolder, and they alone are entitled to accelerate payments and initiate foreclosure.

73.Investors are the real parties in interest.

74.Respondents are wrongfully attempting to assert authority reserved

exclusively to the beneficial owner. Respondents own no interest whatsoever inPetitioner 's lien or note. Respondent do not represent the Investors. Respondents

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are not entitled to Petitioner s payments. Respondents have nothing to benefit orlose.

75.The fact that Petitioners cannot keep pace with the escalating rate of interest

on the Note does not make Petitioners outlaws subject to having their home seizedby Respondents or by any bank or entity acting in the name ofRespondents. Topursue foreclosure, respondents must follow the law dictated by their foundationaldocuments. No p rty can stand above the law, not even these Respondents.

76.Accordingly, named Respondent acquired nothing from MERS or ny other

assignor because MERS and these Respondents did not hold the full beneficialinterest or any beneficial interest in Petitioner s Property. The parties that do holdthis full beneficial interest are investors ofVNT Trust Series 2010-2. These partiesare not disclosed. In this quiet title action, Petitioner s seek Declaratory Relief inthe form of a ruling stipulating that these Investors are the true beneficial ownersofPetitioner s title and, before any foreclosure action can be brought, theseInvestors must be joined as indispensable parties and their interests must berecorded t the Bartow County Recorder s Office, like every other ownershipinterest in real property.

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SECOND QUIET TITLE CL IM77.

Petitioners challenge the interest held by the named Respondents and thevalidity of the assignments to the Respondent assignees because the formalities ofthe statute of frauds and D.C.C. 3-203 were not satisfied.

78.The terms of the security instrument state that MERS can only act on behalf

of and as the nominee for the Lender Tribeca Lending Corp. or their successor orassIgn.

79.The exercise of these powers cannot elude the net cast by the Statute of

Frauds. No interest in land can pass without satisfying its formalities.80.

t is an irrefutable fact that this lender never signed a writing disposing of itsinterest in Petitioner s Property. The ownership interest in land is still parked withthe last recorded beneficial owner and unless and until the statute of frauds issatisfied, foreclosure cannot be pursued.

81.

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The subject Assignments are invalid for two reasons. For failing toaccommodate formalities in the statute of frauds, these transfers are ruled invalidbecause the deterrent attached to the statute of frauds declares all such transfers tobe unenforceable. t also fails to transfer the full beneficial interest for a bearerinstrument, thereby violating U.C.C. 3-203 (b) and (d).

THIRD QUIET TITLE CL IM82.

A cloud on a title has been described as an outstanding claim which appearsto be valid on its face, but can be shown by extrinsic proof to be invalid.

83.On the dates of the Assignments Respondents filed said Assignments

maintaining that assignee held a lien as beneficiary ofPetitioner s securityinstrument.

84.Extrinsic evidence retrieved from the U.S. Securities and Exchange

Commission s search engine reveals transfers ofbeneficial ownership affectingPetitioner s Property, all occurring prior to the dates of the subject Assignments ofMortgage (Security Deed). This extrinsic evidence can all be found under thecorporate filing ofVNT Trust Series 2010-2, and Wells Fargo Delaware Trust

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Company, N.A. None of these transfers of beneficial ownership were recorded. Allof them qualified as recordable transactions.

85.All of this extrinsic evidence qualifies as a fact pl usible on its f ce for

invalidating these Assignments. Each and every one of these facts also supports acognizable legal theory for invalidating each assignment. These prior beneficialtransfers are published by the federal government as official documents and theirintegrity and legitimacy cannot be reasonable disputed.

86.The sole support for these assignments is a formulaic term in the Security

Deed. Petitioner s extrinsic evidence is worth of beliefand it supports a cognizable

Iegal theory for repudiating this formulaic term.FOURTH QUIET TITLE CL IM

87.MERS holds only a ministerial interest in this transaction at most. Through

legal trickery, as described throughout this Petition, Respondents have attempted toManeuver a ministerial interest into the appearance of a full beneficial interest. Toreach this end, it has engaged the fallacy that it is acting on behalf of the Lender ssuccessor in interest.

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88.Respondents are actually acting upon instructions from the mortgage

servicer. There is no functioning lender. Through legal trickery, Respondents areplacing themselves in a position to exercise legal leverage that they have noauthority whatsoever to exercise.

89.O.C.G.A. 23-3-60 et. seq. provides that clouds against Petitioner's title can

be removed through Quieting Title to the Petitioner's Property.90.

Petitioners hold an equitable interest in Petitioner's Property by virtue of aNote and a Security Deed.

91The documents filed and recorded in the public records ofBartow County

Georgia y the named Respondents constitute a cloud upon Petitioner's Property.92.

For purposes of the statute, the date of filing of this Petition shall also serveas the date in which a determination is sought.

93.Petitioners bring this Quiet Title action against these Respondents and

requires that Respondents demonstrate how any transfer of the contractual

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relationship with the borrower, which includes the borrower approved interest inland, c n take place without fulfilling statute of frauds formalities prior to the datesof the Assignments.

94.Petitioners bring this action against these Respondents and asks these

Respondents to demonstrate how each of them could be in a position to hold andconvey the full beneficial interest in Petitioner s security instrument and Notewhen it had no ownership interest in the note, the statute of frauds had beenignored, and each Respondent could not prove the full beneficial transfer ofownership for this bearer instrument from its seller, as U.C.C. 2-203 requires.

95.Petitioners ask each named Respondent to prove that it is entitled to

payments made by Petitioners for its own use. Under terms in the Note, the onlyparty with the right to enforce this obligation is the party entitled to payments fortheir own use.

96.Petitioners concede that a mortgage loan was signed and Petitioner is

indebted to the rightful owner of this lien. Petitioners contend that the true owner isknown but not identified and their names are not discoverable. Petitioners ask thisCourt to use its Declaratory Judgment authority to expose those imposters by

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removing these clouds and false claims of ownership to Petitioners Security Deedand Note appearing in this chain of title at the Bartow County Recorder s Office byordering the following relief.

Prayer for ReliefA. Pursuant to O.C.G.A. 23-3-60 et. seq., Petitioners respectfully ask this

Court to issue a declaratory judgment finding that the interest of these Respondentsn Petitioners Note and Security Deed was void and ofno legal force.

B. Pursuant to O.C.G.A 23-3-60 et. seq. Petitioners ask this Court to declarethat each and every one of these Respondents should be disqualified fromenforcing Petitioners Note and Security Deed and to order Respondents to summonthe true owners consisting of holders of mortgage backed securities owning at leasta majority interest in Petitioner s Note and Security Deed.

C. That this Courts declaratory judgment should further address each andevery one of the clouds upon Petitioner s Property and order such legal andequitable reliefas s necessary for removing these clouds.

D. Petitioners further request reimbursement of all expenses paid in connectionwith this legal proceeding, including court costs and reasonable attorney s fees.

E. Petitioners further request any other relief in the form of specific

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performance and compensation warranted y evidence in the record and that theCourt grant such other and further rel ief as the Court deems equitable, appropriateand just.

Respectfully submitted h i s ~ y ofJanuary, 2014.

net C. Neal, Petitioner906 Jones Mill RoadCartersville, Georgia 30120Phone:

Robert L Neal, Sr., Petitioner906 Jones Mill RoadCartersville, Georgia 30120Phone:

Swom to and subs(;;

neal et al vs tribeca lending corp (research)

Documents

point run

land lot

petitioners property

minutes8 seconds west

andvnt trust series

bartow county georgia

true point ofbeginning

parcel of land