IN THE UNITED STATES COURT OF APPEALS

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

CASE # 15-11262-A

ALEXANDER HARVIN,

APPELLANT

VS.

NATIONWIDE TITLE CLEARING, INC. ET.AL

APPELLEES

___________________________________________________

ON APPEAL FROM THE U.S.DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

DISTRICT COURT CASE # 1:14-cv-2130-MHC-JFK

ATLANTA DIVISION

__________________________________________________

BRIEF OF APPELLANT

__________________________________________________

Prepared By:

Alexander Harvin

Pro Se

P.O.Box 82665

Conyers, Ga. 30013

(770) 841-0784

CERTIFICATE OF INTERESTED PERSONS

Alexander Harvin Pro Se Appellant

Hon. Mark H.Cohen U.S. District Judge

Hon. Janet F. King U.S. Magistrate

Jeremy B. Ross Appellee Counsel

Dustin S. Sharpes Appellee Counsel

Wargo French LLP Law Firm

Georgia Homeowners and the General Public at large.

STATEMENT REGARDING ORAL ARGUMENT

This is an appeal of the district courts grant of a FRCP 12(b)(6) motion to dismiss Alexander Harvins lawsuit which was filed against the Appellees for violations of the Fair Debt Collection Procedure Act (hereinafter FDCPA). Specifically the Complaint alleges that the Appellee JP Morgan Chase Bank, N.A., (hereinafter Chase) acting thru Appellee Nationwide Title Clearing, [NTC] created and recorded an Assignment in the public record of Rockdale County, Georgia, that was a false, deceptive and/or misleading representation in that it implies that Chase is the creditor with respect to an alleged mortgage debt that Chase is attempting to collect and/ or to foreclose on Harvins property. Harvins Complaint asserted that misrepresenting the identity of the creditor in the Assignment constitutes a false, deceptive, and/or misleading representation that is prohibited by Section 1692(e) of the FDCPA.

Harvins Complaint also asserts that Harvin does not owe any money to Chase. Harvin requests that the Court hear oral argument in this case because it involves important, unresolved questions in this circuit regarding: (1) whether a defendant who verbally argues that an Assignment is a contract has the burden of providing the court with actual proof of the underlying transaction, i.e. canceled checks, wire transfer receipts, or sworn affidavit from a party with personal knowledge, (2) whether the district court abused its discretion in denying limited discovery, (3) whether homeowners are beneficiaries of the agreement between the major banks, the federal government, and the State of Georgia that bars the creation and recordation of fraudulent documents for the purpose of pursuing foreclosure, (4) whether the 5th amendment to the U.S. Constitution which provides that citizens cannot lose life, liberty, or property without due process, allows a homeowner to challenge an Assignment, (5) whether a party who acquires a debt via assignment after the alleged debt is in default has authority to foreclose.

This Court has not decided these issues expressly in any published opinion, and oral argument will materially aid the Court in resolution of these important issues on appeal of this lawsuit, which seeks to police debt collectors into compliance with the FDCPA. The FDCPA is a consumer protection statue that requires debt collectors to strictly comply with the provisions of the Act. This appeal asks the Court to hold that the FDCPA requires that debt collectors not misrepresent to the debtor who the creditor is with respect to the debt sought to be collected and that when they do misrepresent the identity of the true creditor or falsely assert that they are the creditor, such false, deceptive or misleading representation constitutes a per se violation of the FDCPA.

Appearing Pro Se Harvin cannot orally present his case to the Court, therefore Harvin requests that counsel be appointed to orally argue these important issues. Oral argument will certainly assist the Court in rendering a correct decision on these important issues that will directly affect how the district court resolves whether an assignment is actually a contract and whether limited discovery should be allowed when a party asserts that an assignment is a contract.

JURISDICTIONAL STATEMENT

This case arises under the Fair Debt Collections Procedure Act (FDCPA), 15 1601 note, 1692-1692p. The U.S.District Court for the Northern District of Georgia, Atlanta Division, possessed jurisdiction pursuant to 15 U.S.C. 1692 (d) and 28 U.S.C. 1331 and 1337. On January 28, 2015, the district court entered an Order granting Appellees motion to dismiss, and judgment was entered on that date. [Doc.57]. FRCP rule 52 (b) motion denied on March 9, 2015. [Doc.61] Harvin filed a timely Notice of Appeal on March 30, 2015. This Court possesses jurisdiction pursuant to 28 U.S.C. 1291 and 1294 (1).

STATEMENT OF ISSUES PRESENTED

In 2003 Harvin sought a mortgage loan from Southtrust Mortgage Corporation. Unknown to Harvin at that time the mortgage was financed with proceeds from Wachovia Bank, N.A. (Hereafter Wachovia). Also unknown to Harvin was Wachovias involvement in a money-laundering scheme that implicated Mexican drug cartels. The U.S.Attorney for the Southern District of Florida indicted Wachovia based on evidence of money laundering. Subsequently Wachovia pled guilty.

This table-funded loan was funded by Wachovia and guaranteed by Ginnie Mae. Chase became the servicer thereafter. Following the demise of Wachovia the true owners/investors of the securitized loan were paid via insurance claims, etc. Chase continued to send mortgage statements to Harvin, who suspected nothing. In 2011 Wells Fargo Bank as successor to Southtrust Mortgage Corporation [SMC] declared in a state-court proceeding that Wells Fargo had no interest in the property or loan. Also in 2011 the loan went into default. In 2013 Chase declared that it was the owner/investor of the loan and hired NTC to create and record in the public records of Rockdale County Georgia an Assignment that supposedly transferred a secured interest in the security deed to Chase.

Harvin thereafter filed an FDCPA complaint on the basis that the assignment was a fraudulent, forged document recorded for the specific intent of falsely presenting Chase as Harvins creditor. In response Appellees filed a motion to dismiss the complaint due to failure to state a claim upon which relief could be granted; Appellees also asked the District Court to stay discovery pending resolution of the motion to dismiss. Discovery was stayed.

Within the motion to dismiss Appellees argued as fact that the Assignment was a contract between MERS and Chase that could not be challenged by Harvin. Acting pursuant to local rule 7.1 (A)(1) of the District Court, Harvin filed a Motion For Limited Discovery arguing that the local rule requires that when a party relies upon facts in support of any motion, such party must provide an affidavit in support of said motion.

The Magistrate submitted a Non-Final Report & Recommendation adopting Appellees position that the assignment was a contract that could not be challenged by Harvin, (a) the magistrate stated that she could not decide whether the mortgage was funded with drug proceeds from the money laundering activity of Wachovia, because Wachovia was not a party to the lawsuit, (b) The Magistrate held that Chase could foreclose on Appellants property by way of the assignment from MERS. [Doc. 40]

Harvin submitted a motion for joinder of parties seeking to add Wachovia as a defendant due to the magistrates position in the R & R.; timely objections to the R & R were also filed.

The District Court denied all pending motions [Doc.57] submitted by Harvin and adopted the R & R on the basis that the assignment was a contract that could not be challenged by Harvin. The District Court also held that Chase could seek foreclosure. Harvin files this appeal of the district courts findings. This appeal raises the following issues:

1. Pursuant to paragraph 18, the Foreclosure Procedure Clause of the Security Deed the original parties, Harvin and SMC agreed that in the event of foreclosure the Lender [SMC] would exercise power of sale. This paragraph does not convey power of sale to an assignee, successor, or heir, to the Security Deed.

Chase as an assignee, successor, and heir, seeks to exercise power of sale under the specific terms of paragraph 18 Is this a violation of section 1692f of the FDCPA that bars the threat to take any action that cannot legally be taken?

2. The Security Deed has a MERS Clause that allows assignees, successors, and heirs to exercise power of sale. The MERS clause does not define when an assignee, successors, or heir may the exercise power of sale. Is the MERS clause contrary to paragraph 18, the Security Deed?

3. Appellees filed a rule 12 (b)(6) motion arguing that the complaint failed to state a claim for which relief can be granted. An affirmative defense was presented as fact within the motionthe Assignment is a contract that cannot be challenged by a non-party to the contract District Court local rule 7.1 (A)(1) makes it mandatory for an affidavit to be provided when a party relies upon facts in support of any motion. Appellees presented no evidence such as wire transfer receipts/instructions, canceled checks, or an affidavit from someone with personal knowledge, to support their factual argument that the assignment is a contract.

Did the Appellees meet their burden of proof?

4. Harvin filed a Motion for Limited Discovery on the issue of whether the assignment is a contract. Thereafter Harvin sought to admit as evidence the deposition testimony of former MERS CEO, R.K. Arnold, MERS secretary William Hultman, and Appellee Erika Lance, as proof that the assignment is not a contract. The district court denied the motion for limited discovery and never ruled on or considered the content of the deposition testimony.

Was this an abuse of discretion and clear error?

STATEMENT OF THE CASE

a. Course of Proceedings and Disposition Below.

Harvins complaints alleged these important facts (a) Harvin did not owe any money to Chase, (b) Chase submitted a statement by mail to Harvin alleging that a debt was owed and Chase was seeking to collect said debt, (c) the assignment was a forged, fraudulent document created by NTC and recorded to present the illusion that Chase was a creditor.

Appellees filed a motion to dismiss on the basis that the complaints failed to state a cause of action as a matter of law under the FDCPA. Appellees also argued as fact that the assignment was a contract without presenting any evidence to support this hearsay statement. [Doc. 7, 13]

Harvin submitted written objections to the hearsay statement that alleged the assignment was a contract. Harvin also sought limited discovery, admission of deposition testimony of MERS secretary William Hultman, former MERS CEO R.K.Arnold, and Appellee Erika Lance, as proof that the assignment was not a contract. The central theme of Appellees FRCP 12(b)(6) motion to dismiss was that (a) the legality of the assignment could not be challenged because it was a contract to which Harvin was not a party to and (b) Appellees could foreclose by way of the assignment from MERS.

In the Northern District it has become routine for the court to hold that an assignment is a contract, without requiring attorneys to provide proof that this document is actually a contractthis practice results in awarding a free house to the banks. Harvin also filed a Fed.R.Civ P. rule 52(b) motion that was denied by the District Court.

The District Court found in favor of the Appellees and elected not to consider any argument or evidence presented by the Pro Se litigantHarvin.

b. Statement of Facts.

Appellee NTC is a document mill that creates documents for banks in the mortgage industry. The Illinois Attorney General found that NTC was creating and filing fraudulent assignments in the public records of Illinois. The Illinois AG filed suit against NTC and subsequently NTC paid $ 300,000 to settle.

In California, a court of appeals mentioned in its opinion that a lower court found that Chase intentionally recorded a fraudulent assignment that allegedly transferred property to Chase.

Upon this background the District Court held that Harvin had no standing to challenge the assignment based on the attorneys verbal depiction of the assignment as a contract. The District Court went further and held that based on the terms of the assignment and security deed, Chase could foreclose.

The terms of the Security Deed has two important clauses; (1) the MERS clause allows successors and assignees of MERS to exercise power of sale, (2) paragraph 18, titled: Foreclosure Procedure explains the procedure necessary to foreclose. Specifically this section of the security deed holds that only the Lender can foreclose via power of sale.

Georgia law, OCGA 23-2-114 declares, powers of sale in deeds of trust, mortgages, and other instruments shall be strictly construedunless the instrument creating the power specifically provides to the contrary.

Paragraph 18 of the Security Deed is indeed contrary to the MERS clause of the Security Deed Chase as a successor, assignee, cannot exercise power of sale.

Standard of Review

This Court reviews de novo a district courts grant of a motion to dismiss pursuant to Fed.R.Civ.P. 12 (b)(6), accepting the allegations in the complaintincluding mixed questions of law and factas true and construing them in the light most favorable to the plaintiff.

The interpretation of a statue is a purely legal matter and therefore subject to de novo review. 4SUMMARY OF THE ARGUMENT

The district court granted Appellees FRCP 12(b)(6) motion to dismiss based upon a finding that the complaints failed to state a cause of action under the Fair Debt Collection Procedure Act because the assignment was a contract that could not be challenged by Harvin. The basis for the district courts findings are found in its Order [Doc.57]

At page 4 of its order the district court found that the motions present purely legal issuesthis was an incorrect conclusion because the 12(b)(6) motions also argued as fact that the assignment was a contract, therefore the motions were a mixture of law and unsupported facts.

The district court assumed that because the assignment contained boilerplate language common to contractsgood value, and considerationthe assignment must be a contract. [Doc. 57 at page 6]

Harvin shows below that the district courts decision amounts to reversible error because there is no evidence of consideration in the record. Section 24-14-1 of the Official Code of Georgia states verbatim: Burden of proof lies upon the party who is asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential.

It is clear that having argued to the district court that the assignment was a contract Appellees had the burden of proof to establish with clear and convincing evidence that the document was in fact a contract. Understanding the burden of proof Harvin filed a motion for limited discovery [Doc 17] invoking northern district court local rule 7.1 (A) (1), which governs motions and states that if a motion argues fact the party is required to submit an affidavit in support of the factual assertion. The district court erroneously assumed that Harvin was confusing the 12 (b)(6) motion with a summary judgment motion. [Doc 57]

There is a long line of cases that stand for the proposition that an assignment is a contractHarvin submits that in each of those cases the record is void of any evidence to support those assumptions. [Doc 59, 60]

Harvin by motion sought to admit deposition testimony of former MERS CEO R.K.Arnold, MERS secretary William Hultman, and Appellee Erika Lance as proof that the assignment was not a contract. [Doc. 39]

The district court denied the motion and did not consider the content of these depositions. Erika Lance stated in her deposition:

They record Assignments to put on the record who is the current beneficiary for that note and loan that mortgage. Thethe Assignment itself is not the, to my understanding the actual sale of the loan. Does that make sense?

Clearly Ms.Lance, the person who created the subject assignment in this case does not consider the assignment a contract.

The assignment implies that MERS sold the security deed to Chase for considerationMERS secretary William Hultman states in his deposition:

If you mean can we sell the mortgage and receive consideration or monetary value, no.

When asked if MERS receives any money when a certifying officer assigns a mortgage Mr.Hultman replied: No.

Mr.Hultmans deposition leaves no doubt that the district courts decision that the assignment is a contract is reversible error.

ARGUMENT

1. BRIEF OVERVIEW OF THE FDCPA

Determining that there is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Congress passed the FDCPA to eliminate those practices. 15 U.S.C. 1692(a). The FDCPA protects consumers who have been subjected to abusive, deceptive, or unfair debt collection practices by a debt collector in an attempt to collect a debt.

The FDCPA is a consumer protection statue that governs the activities of debt collectors. The FDCPA requires that debt collectors such as Chase refrain from false representationsforged and fraudulent documents to enable an illegal taking of property.

For purposes of resolving count two of the complaint the magistrate held that the court will assume that at least one defendant was a debt collector and engaged in debt collection activity. [Doc.40]. The inclusion of attorneys as debt collectors was done by way of amendment to the FDCPA.

FDCPA coverage applies three central substantive provisions that prohibit, without limitation, all abusive, false and unfair practices, 15 U.S.C. 1692d, 1692e, and 1692f. Each section contains in identical format certain general prohibitions and each section also provides a list of per se violations. This means that each section lists examples of prohibited conduct, which does not limit the general prohibitions against abusive, false, and unfair means. Section 1692e provides a non-exhaustive list of prohibited conduct. As to the prescriptions against false representations any representation which is objectively false constitutes a per se violation of section 1692e. Even if not objectively false, any statement, which is capable of deceiving or misleading, violates section 1692e.

2. The District Court erred in finding that the complaint does not state a claim for relief under the FDCPA

The District Court adopted the Magistrates finding that there has been no violation of FDCPA 15 U.S.C. 1692e and 1692f.

Paragraph 18 of the Security Deed

We begin by acknowledging that on the first page of the security deed the Lender is identified as Southtrust Mortgage Corporation. [SMC]. Moving forward to paragraph 18 Harvin and SMC agreed that in the event of loan default the Lender [SMC] would exercise power of sale to foreclose on the property. This section of the contract is specific and was agreed to by the original partiesunder this section of the security deed a successor, assignee, or heir has no power to foreclose or exercise power of sale. Consequently Chase does not have legal authority to foreclose or exercise power of sale.

Section 1692f provides that taking or threatening to take any nonjudicial action to effect dispossession or disablement of property is an unfair or unconscionable means of collecting a debt if there is no present right to possession of the property. Giving too broad an interpretation of You vs., Chase, 293 Ga.at 69, 743 S.E.2d at 430, the district court failed to acknowledge that in You, supra, the Georgia Supreme Court held that the holder of the security deed may foreclose according to the terms of the deed. Chase holds an unenforceable security interest because the specific terms of the contract [the Foreclosure Procedure Clause] does not allow an assignee, successor, or heir to foreclose.

To support this position Harvin submits that an issue of contract construction is a question of law for the district court to decide. The first step is to look to the four corners of the instrument to determine the meaning of the agreementthe cardinal rule is to ascertain the intent of the partiesthe question of intent is an issue of fact for the jury.

Harvin concedes that the Security Deed has ambiguities; the issue of who may exercise power of sale can be construed two ways. Harvin did not prepare or draft the security deed. This Court has recognized and upheld a decision against a party that drafted a contract:

In Auto Owners Insurance Company, et.al; vs. Southwest Nut Company, et.al; [11th Cir. Case # 13-11672], George Martin Family Investment owned a storage warehouse in Georgia and insured the warehouse under a policy issued by Auto Owners. Southwest Nut held an insurance policy issued by Travelers that provided coverage for newly acquired property. Southwest Nut leased a portion of Martins warehouse to store pecans.

A fire destroyed portions of the warehouse and Southwest Nuts stored inventory. Subsequently Auto-Owners and Martin filed suit against Southwest Nut and Travelers to recover damages for loss caused by the fire. Summary judgment was granted in favor of Southwest Nut and Travelers. On appeal to this Court the parties argued there was ambiguity within the leasethis Court held that any ambiguity would be resolved against Martin, the drafter of the lease. See OCGA 13-2-2.

As mentioned afore Harvin did not draft the security deed, the MERS clause and paragraph 18, of the security deed presents ambiguitythat should be resolved in favor of Harvin.

The district court erred in concluding that Chase holds an enforceable security interest, i.e., You, supra.

3. The MERS clause is contrary to Paragraph 18, the Foreclosure Procedure clause

OCGA 23-2-114. Declares that the power of sale must be strictly construed. The statue goes on to say that if the instrument creating the power of sale [Security Deed] specifically provides to the contrary, a successor, heir, assignee, or grantee [cannot] exercise any power contained therein.

The operative words here are Unless the instrument creating the power specifically provides to the contrary.

The statue speaks for itself and as stated above any ambiguity must be resolved in favor of Harvin.

4. The Appellees have not met the burden of proof

Appellees filed a FRCP rule 12 (b)(6) motion to dismiss the case for failure to state a claim under the FDCPA and also presented within the motion a factual argument that the Assignment is a contract.

Repeatedly Harvin asserted to the district court that the assignment was not a contract because of the Appellees failure to submit proof of the underlying transaction, i.e., proof that Chase paid consideration to MERS. Harvin filed a FRCP rule 52 (b) [Doc.59] asking the district court to ascertain whether the burden of proof was met regarding the unsupported argument that the assignment is a contract. Harvins memorandum of law in support of his rule 52 (b) motion [Doc.60] presented this argument to the district court:

Section 24-14-1 of the OCGA states verbatim Burden of proof lies upon party who is asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential.

There is no gray area regarding Georgia law on the subject of the burden of proof. Words alone do not make a contract nor does an attorneys verbal reference to a piece of paper establish that piece of paper as a contract. It is obvious based on the district court and magistrates position that this factual defense is essential to the Appellees case.

To uphold the lower courts ruling that the assignment is a contract the record must contain clear and convincing evidence that supports the argument.

Chase and NTC did not proffer an affidavit from someone with personal knowledge of the transaction, a canceled check, or wire transfer instructions/receipt to the district court. Such evidence is necessary to prove that considerationa crucial element of any contractwas given to MERS.

There are cases that have been referenced as case law that accordingly is dispositive law on the subject of whether an assignment is a contract. Harvin by way of PACER has perused many of these cases and has found nothing in the records of these cases to validate this unsupported assumption.

Each of those cases reflects that an attorney referred to a piece of paper as a contractthe district agreed without demanding proofthe attorneys client normally a bank, received a free house.

MERS is a computer, a repository where players in the mortgage industry upload information regarding loans. MERS is akin to YouTube or Facebook, computers, repositories where the general public can upload informationa computer does not have the mental capacity to enter into contractual agreements.

The district court erred in concluding that the assignment is a contract without requiring Chase and NTC to provide proof of purchase and consideration.

5. The denial of Harvins Motion for Limited Discovery and refusal to consider the depositions of R.K.Arnold, William Hultman, and Erika Lance is an abuse of discretion and clear error

Responding to the Appellees argument that the assignment is a contract Harvin filed his Motion for Limited Discovery [Doc.10 and 17] invoking district court local rule 7.1 (A)(1). The motion was denied. Thereafter Harvin sought to admit the deposition testimony of former MERS CEO R.K.Arnold, MERS secretary William Hultman, and NTC employee Erika Lance. These depositions were given in other cases and are admissible under FRCP 32 (a) (C) and Fed.R.Evidence 804 (b)(1)(A).

Erika LanceErika Lance's definition of an assignment as she gave her deposition

under oath in Bayview Loan Services vs. Corey, case # 16-2009CA-016234-MA, 4th Judicial Circuit Court, Duval County Florida:

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Q. "And is it your understanding that that's generally how notes are

transferred through Assignments"?

A. "I'm trying to figure out how to answer this question. It is my

understanding that notes are transferred through a sale agreement between

mortgage entities. They record Assignments to put on the record who the

current beneficiary is for that note and loan that mortgage. The-the Assignment itself is not the, to my understanding the actual sale of the loan.

Does that make sense?

William HultmanIn Bank of New York vs. Ukpe, case # F-10209-08, Superior Court New

Jersey, William Hultman, MERS corporate officer testified as a fact witness

under oath:

Page 122

Q. "I understand its part of your process, but let's take this case, for

example, a promissory note was executed on July 29,2005 in the amount of

$224,000, and a mortgage giving a security interest to MERS as nominee for

an identified lender was recorded with the county clerk's office. What is the

value of that mortgage to MERS when it is recorded?

A. " I don't understand what you mean by value".

Q. "Well, does it have some value to MERS that MERS can sell it for"?

Page 123

A. "If you mean can we sell the mortgage and receive consideration or

monetary value, no".

Q. " When a certifying officer assigns a mortgage, does MERS receive any

money"?

A. "No".

The Assignment implies that MERS received good value and consideration from Chase. According to Mr.Hultman MERS never receives consideration under any circumstance. Ms. Lance, the person who created the subject assignment in this case does not refer to the document she created as a contract.

Lets take a brief look at what the assignment implies. It declares that MERS is acting in its capacity as nominee/agent for SMC, a principal that has not existed since 2004. The magistrate traced the chain of title from SMC to Wells Fargo Bank. The record shows that in 2011 in Rockdale County Superior Court Wells Fargo affirmed that it did not have an interest in Harvins property. [Doc.1] MERS as nominee/agent cannot act without instruction from a principalthe record does not name the principal that gave MERS permission to sell the security interest to Chase.

In the MERS model there apparently is no need for a written assignment anytime ownership of the debt changes handsunless the debt is going to be foreclosed by someone other than the originating Lender [SMC] or removed from the MERS system. An unavoidable side effect of this is that [SMC] remains the mortgagee of record at the Rockdale County Land Office, albeit with MERS acting on its behalf. In other words the clear implication is that [SMCs] status as mortgagee at the local land office somehow survives the multiple transfers of the debt that take place during securitization. The MERS model is designed in its own way to tie ownership of the mortgage to ownership of the notewhich means that when SMC sold the note to Wachovia/Wells Fargo Bank, N.A., it no longer has a secured interest in the mortgage or note and its [SMC] continued status as mortgagee in the public land records is at best a negligent misrepresentation and at worst an act of fraud.

According to the Magistrate the originator, SMC was succeeded by Wachovia, who was succeeded by Wells Fargo Bank, N.A., such being the case why is there no written endorsement from representatives of Wells Fargo assigning the security deed to Chase? Looking at the four corners of the Assignment it is implied that MERS acting as nominee for SMC assigned the security deed to Chasewhich is confusing because SMC has not existed as an entity since 2004 and thus has nothing to assignconsequently a direct assignment from SMC to Chase is also at best a negligent misrepresentation or at worst an act of fraud.

HARVIN IS A THIRD PARTY BENEFICIARY

OF THE NATIONAL MORTGAGE SETTLEMENT OF 2012

In April 2012, the major servicers of mortgages in Georgia, such as Bank of America, Wells Fargo, Citimortgage, and JP Morgan Chase, among others, agreed to the National Mortgage Settlement [NMS]. This settlement imposed on them the obligation to prove they had the power to foreclose.

Servicer shall implement processes to ensure the Servicer or the foreclosing entity has a documented enforceable interest in the promissory note and mortgage (or security deed)or is otherwise a proper party to the foreclosure action.

Consent judgment and consent settlement in United States vs. Bank of America Corp., case # 12-CV-00361 (D.D.C. April 4, 2012) Settlement Term Sheet, Section I.C. (1). Compelling the burden of proof merely is another way of enforcing these settlement terms. Reference to a piece of paper as a contract does not establish the burden of proof necessary to prove standing to dispossess Harvin of his property.

THE 5TH AMENDMENT TO THE U.S.CONSTITUTION

GIVES HARVIN STANDING TO CHALLENGE THE

ILLEGAL TRANSFER OF INTEREST FROM MERS

TO JP MORGAN CHASE BANK, N.A.

The 5th amendment to the U.S.Constitution is specific and direct. It states that no citizen shall be deprived of Life, Liberty, or Property without due process.

If a party claims that a contract gives them standing to non-judicially take property due process mandates that Harvin has standing to require that the burden of proof be met.

The U.S.Constitution is clear; my property cannot be taken without affording Harvin basic due process.

CONCLUSION

Alexander Harvin has never signed a contract with JP Morgan Chase nor has he received a loan from ChaseHarvin owes no money to Chase. The Illinois Attorney General charged that Nationwide Title Clearing [NTC] infected Illinois public land records with forged, fraudulent assignmentsNTC wisely settled that issue.

In reviewing Chases appeal of an attorney fee award a California Appellate Court took notice that the lower court found that Chase knowingly filed and recorded a forged, fraudulent assignment attempting to take property via foreclosure. Erika Lance created the assignment that is subject to this appeal; her deposition testimony, given under oath, describes an assignment as a notice to the world at large that a sale has taken place. The attorneys call Ms.Lances creation a contract.

William Hultman, a high-ranking corporate officer of MERS has testified under oath that MERS never receives value or consideration when the security interest is transferred. Who do we believe? The person giving testimony under oath that is subject to penalty for perjury or the attorneys who have not given testimony under oath.

Harvin asked the district court to allow limited discovery regarding the assignment and to consider the relevant deposition testimony of William Hultman, R.K.Arnold, and Ms.Erika Lancethe lower court rebuffed Harvins plea for justice. The attorneys argue that MERS received good value and consideration from Chaseif this is true showing proof of the movement of money in consideration for the purchase of a loan/security interest should not be difficult for the Appelleesperhaps the entire scheme is a fraudulent scheme using the judicial system to legitimize theft of property by deceptiona felony under Georgia law punishable by imprisonment.

The taking of a familys home is a serious matter that cannot rest on an attorneys imaginative unsupported argument that a sheet of paper is an impenetrable contractin the interest of justice this case must be remanded with instructions that discovery be allowed.

Respectfully Submitted,

_______________________

ALEXANDER HARVIN

In Pro Se

P.O.Box 82665

Conyers, Ga. 30013

(770) 841-0784

CERTIFICATE OF SERVICE

A TRUE AND CORRECT copy of Harvins Initial Brief was delivered by electronic mail on this 30th day of April 2015 to:

Dustin S.Sharpes

999 Peachtree Street, N.E.

26th Floor

Atlanta, Ga. 30309

Mr. Jeremy B.Ross

Counsel for Defendants NTC and Erica Lance

40 Technology Parkway South

Suite 300

Norcross, Ga. 30092

________________________

ALEXANDER HARVIN

In Pro Se

The Court may take judicial notice of the conviction because it is a public record and is central to Appellants Complaint. Day vs. Taylor, 400 F.3d 1272, (11th Cir. 2005); Bryant vs. Avado Brands, Inc., 187 F3d 1271 (11th Cir. 1999)

Case # 12 CH 03602, Cir,Ct., Cook County Illinois

Kalicki vs. Chase

Belanger vs. Salvation Army, 556 F.3d 1153, 1155, (11th Cir.2009); Macharia vs. United States, 334 F.3d 61,64,67 (D.C.Cir. 2003); Browning vs. Clinton, 292 F.3d 235, 242 (D.C.Cir. 2002)

See, Piper vs. Portnoff, 396 F.3d 227, 232 (3rd Cir.2005)

Heintz vs. Jenkins, 514 U.S. 291 (1995)

United States vs. National Financial Services, 98 F.3d 131, (4th Cir. 1996)

Bentley vs. Great Lakes Collection Bureau, 6 F.3d 60 (2nd Cir.1993)

Creighton vs. Emporia Credit Service, Inc., 981 F.Supp. 411 (E.D.Va. 1997)

Jeter vs. Credit Bureau, Inc. 760 F.2d 1168 (11th Cir.1985)

Karlan Inc., vs. King 202 Ga.App. 713, 415 SE 2d 319 (1992)

The letters MERS stand for Mortgage Electronic Registration System. MERS is owned by MERSCORP.

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