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IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
JOSEPH A. COLEMAN, JR.
PLAINTIFF
V.
PRETIUM MORTGAGE ACQUISITION TRUST; WILMINGTON SAVINGS FUND SOCIETY, FSB, D/B/A CHRISTIANA TRUST; RUSHMORE LOAN MANAGEMENT SERVICES LLC; KENNEY & MEDINA, P.C. ; GMAC MORTGAGE, LLC; GREEN TREE SERVICING, LLC; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. ; DEFENDANTS
] ] ] ] ] ] ] ] ] ] ] ] ] ] ] ] ] ] ] ] ] ] ] ] ]
CASE NO. 16CV13417-2 COMPLAINT FOR: 1. LACK OF STANDING TO FORECLOSE 2. FRAUD IN THE CONCEALMENT 3. FRAUD IN THE INDUCEMENT 4. SLANDER OF TITLE 5. QUIET TITLE 6. DECLARATORY RELIEF
PLAINTIFF’S FIRST AMENDED PETITION
I. THE PARTIES
1. Plaintiff is now, and at all times relevant to this action, a resident of the Dekalb
County, Georgia.
2. Defendant Pretium Mortgage Acquisition Trust, the alleged holder of the security deed to
Plaintiff’s property, is an entity organized under the laws of the State of Delaware with a
FILED 3/10/2017 9:03:51 AM CLERK OF SUPERIOR COURT DEKALB COUNTY GEORGIA
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registration number of 5586952 and can be properly served with process at 500 Delaware
Avenue, 11th Floor, Wilmington, DE 19801.
3. Defendant Wilmington Savings Fund Society, FSB, d/b/a Christiana Trust is the
registered agent for Pretium Mortgage Acquisition Trust and the entity alleged to have full
authority to negotiate, amend, and modify all terms of the mortgage with Plaintiff and can be
served with process at 500 Delaware Avenue, 11th Floor, Wilmington, DE 19801.
4. Defendant RUSHMORE LOAN MANAGEMENT SERVICES LLC. is the appointed
Attorney in Fact for Wilmington Savings Fund Society, FSB, DBA Christiana Trust, Not
individually but as trustee for Pretium Mortgage Acquisition Trust and can be properly served at
15480 Laguna Canyon Rd; Irvine, California 92618; Phone (949) 341-0777.
5. Defendant Kenney & Medina, P.C., a law firm acting as the debt collector in this matter,
can be served with process at 3302 McGinnis Ferry Road, Suite 100, Suwanee, Georgia 30024
(770) 564-1600.
6. Defendant GMAC Mortgage Corporation DBA ditech.com (GMAC) is designated as
“Lender” in the Security Deed and can be served with process at 3200 Park Center Dr. Suite 150;
Costa Mesa, CA 92626.
7. Green Tree Servicing LLC is a former Servicer to the alleged loan and can be served with
process at 1 Rider Trail Plaza Drive, Suite 100; Earth City, MO 63045.
8. Defendant, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., (MERS)
is a Delaware corporation who may be served with process at 1818 Library Street; Suite 300;
Reston, Virginia 20190;
9. Plaintiff does not know the true names, capacities, or basis for liability of all the
Defendants sued herein as Does 1 through 100, inclusive, as each fictitiously named Defendant
is in some manner liable to Plaintiff, or claims some right, title, or interest in the Property.
Plaintiff will amend this Complaint to allege their true names and capacities when ascertained.
Plaintiff is informed and believes, and therefore alleges, that at all relevant times mentioned in
this Complaint, each of the fictitiously named Defendants are responsible in some manner for
the injuries and damages to Plaintiff so alleged and that such injuries and damages were
proximately caused by such Defendants, and each of them.
10. Plaintiff is informed and believe, and thereon allege, that at all times herein mentioned,
each of the Defendants were the agents, employees, servants and/or the joint-venturers of the
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remaining Defendants, and each of them, and in doing the things alleged herein below, were
acting within the course and scope of such agency, employment and/or joint venture.
11. The Defendants currently involved in the foreclosure of the Plaintiff’s property shall
hereinafter collectively be referred to as “Foreclosing Defendants” and includes the defendants
in paragraphs 2 -5 above.
II. JURISDICTION
12. At all times relevant to this action, Plaintiff has owned the property located at 4382
Oakleaf Cove, Decatur, Georgia (subject property) and as further described in the Note and
Security Deed (see paragraph 15 and 16 below)
13. The transactions and events which are the subject matter of this Complaint all
occurred within the Dekalb County, State of Georgia.
14. The Property is located within Dekalb county, Georgia with an address of 4382
Oakleaf Cove; Decatur, Georgia.
III. INTRODUCTION
15. This is an action brought by Plaintiff for declaratory judgment, injunctive and
equitable relief, and for compensatory, special, general and punitive damages.
16. Plaintiff executed a Security Deed on 03/18/2004 which was filed and recorded
with the clerk of superior court of Dekalb County on April 22, 2004 in Deed Book 16051, Page
183 with File number: 2004-0088176 (Security Deed). See Exhibit A.
17. Plaintiff executed a promissory note (Note) on 03/18/2004 which is secured by the
Security Deed.
18. Plaintiff, homeowner, disputes the title and ownership of the real property in
question (the “Home”), which is the subject of this action, in that the originating mortgage
lender, and others alleged to have ownership of Plaintiff’s mortgage note and/or Security Deed,
have unlawfully sold, assigned and/or transferred their ownership and security interest in a
Promissory Note and Security Deed related to the Property, and, thus, do not have lawful
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ownership or a security interest in Plaintiff’s Home which is described in detail herein. For
these reasons, the Court should Quiet Title to the property in Plaintiff’s name.
19. Additionally, Plaintiff homeowner brings causes of action against all defendants for
fraud, rescission, declaratory relief, upon the facts and circumstances surrounding Plaintiff’s
original loan transaction and subsequent assignments of the Note and Security Deed.
Defendants’ violations of these laws are additional reasons this Court should quiet title to
Plaintiff’s property in Plaintiff and award damages, rescission, declaratory judgment, and
injunctive relief as requested below.
20. Plaintiff further alleges that Defendants, and each of them, have not established
possession and proper transfer and/or endorsement of the Promissory Note and proper
assignment of the Security Deed.
21. Plaintiff alleges that an actual controversy has arisen and now exists between the
Plaintiff and The Foreclosing Defendants, and each of them. Plaintiff hereby seeks a judicial
determination and declaration of its rights with regard to the Property and the corresponding
Promissory Note and Security Deed.
a. Plaintiff also seeks redress from the Foreclosing Defendants, and each of them, for
damages, for other injunctive relief, and for cancellation of written instruments based
upon an invalid and unperfected security interest in the subject property.
IV. FACTUAL ALLEGATIONS
22. On or about March 18, 2004 (hereinafter referred to as “Closing Date”) Plaintiff
entered into a consumer credit transaction with GMAC Mortgage Corporation DBA ditech.com
(Lender) allegedly by obtaining a $106,900.00 loan secured by the subject property.
23. Plaintiff executed a series of documents, including but not limited to a Note and
Security Deed, securing the Property. The original beneficiary and nominee under the Security
Deed was MERS.
24. Plaintiff is informed and believes, and thereon alleges, that the debt or obligation
evidenced by the Note and the Security Deed executed by Plaintiff in favor of the original
lender, regarding the Property, was not properly assigned and transferred to the Defendants,
and each of them.
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25. Plaintiff alleges that as of the date of the filing of this Complaint, the Security Deed
has been improperly assigned multiple times to other parties or entities.
26. Plaintiff is informed and believes, that Defendant PRETIUM MORTGAGE
ACQUISITION TRUST, alleges that it is the “holder and owner” of the Note and the
beneficiary of the Security Deed. However, the Note and Security Deed identify the mortgagee
and note holder as the original lending institution.
27. Plaintiff alleges that any security interest in the Property was never perfected.
The alleged holder of the Note is not the beneficiary of the Security Deed. The alleged
beneficiary of Plaintiff’s Security Deed does not have the requisite title, perfected security
interest or standing to proceed in a foreclosure; and/or is not the real party in interest with
regard to any action taken or to be taken against the Property.
28. Plaintiff is informed and believes, and thereon alleges that at all times herein
mentioned, any assignment of a Security Deed without proper transfer of the obligation is a
legal nullity.
29. Plaintiff is informed and believes, and thereon alleges, that with each transfer of the
note and Security Deed, the transferor intended to transfer and endorse to the respective
transferee, without recourse, all of its right, title and interest in and to the Note and Security
Deed.
30. Plaintiff is further informed and believe, and thereon alleges that the assignments of
the Note and Security Deed are improper and invalid due to, but not limited to the following:
a. The splitting or separation of title, ownership and interest in Plaintiff’s Note and
Security Deed, of which the original lender is the purported holder, owner and
beneficiary of Plaintiff’s Security Deed;
b. When the Security Deed was assigned to each successive entity, as detailed in the
recorded assignments (see Exhibits B-E), there were no corresponding
assignments of the Note to any intervening entity at the time of each successive
assignment.
c. The failure to assign and transfer the beneficial interest in Plaintiff’s Security
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Deed to each successive assignee as required by law.
d. The failure of each successive assignee to endorse the Note in accordance to law;
e. Neither proper nor lawful Assignments of Beneficiary interest or Endorsements of
the Note were made to any of the successive assignees of the Note and Security
Deed, in violation of Georgia law, and;
f. Defendants, and each of them, violated the pertinent terms of Georgia law.
31. Plaintiff, therefore, alleges, upon information and belief, that none of the
Foreclosing Defendants, and each of them, in this case, hold a perfected and secured claim in
the Plaintiff’s Property;
32. Plaintiff alleges that all Defendants, and each of them, are estopped and precluded
from asserting a secured claim against Plaintiff’s property.
33. Foreclosure proceedings instituted by the Foreclosing Defendants, and each of them,
against Plaintiff’s property were halted by a temporary restraining order on 12/30/2016.
Plaintiff seeks to avoid the loss of property by redress of the issues presented herein.
V. FIRST CAUSE OF ACTION.
LACK OF STANDING TO FORECLOSE
A. THE ASSIGNMENTS OF THE NOTE AND SECURITY DEED
34. The alleged loan was granted to Plaintiff on March 18, 2004 by the originating
lender GMAC Mortgage Corp., doing business as ditech.com.
35. The Security Deed was executed on the same date with the parties being the Plaintiff
(borrower) and the originating lender and MERS which is named as nominee for the lender and
grantee (Exhibit A)
36. On July 23, 2010, an assignment of the Note and Security Deed was executed by
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MERS, naming GMAC Mortgage, LLC as the assignee (Exhibit B).
37. The Assignment of July 23 2010 was later rescinded (See Exhibit B) even though
two subsequent assignments had already been executed on the validity of this rescinded
assignment.
38. On April 6, 2015, an Assignment of Security Deed was executed by MERS as
Nominee for GMAC Mortgage, Corp., doing business as ditech.com. This assignment names
Green Tree Servicing, LLC as the assignee (Exhibit C). Based on information and belief,
Plaintiff alleges that this assignment caused the Security Deed to be separated from the note
because the note was not endorsed.
39. On September 13, 2016, an Assignment of the Security Deed was executed by
Pretium Mortgage Credit Partners I Loan Acquisition, LP as Attorney-in-Fact for Ditech
financial, LLC, successor by merger to Green Tree Servicing, LLC. This document names the
assignee as Wilmington Savings Fund Society, FSB, doing business as Christiana Trust as
Trustee for Pretium Mortgage Acquisition Trust ( Exhibit D). Based on information and
belief, Plaintiff alleges that this assignment further caused the Security Deed to be separated
from the note because the note was not endorsed.
40. The assignment executed on September 13, 2016 (Exhibit D) was allegedly
authorized by the Grantee, who claims to be authorized to make the assignment for the Grantor.
Without proper authorization, this amounts to giving yourself a gift.
41. Plaintiff alleges that regarding the assignment executed on September 13, 2016
(Exhibit D), no document was filed or recorded which shows that Pretium Mortgage Credit
partners I Loan Acquisition, LP was duly appointed as Attorney-in-Fact for Ditech Financial,
LLC, successor by merger to Green Tree Servicing, LLC.
42. On October 19, 2016, a Rescission of Assignment of Security Deed was executed by
MERS. This document names GMAC Mortgage, LLC as the rescinded assignee (Exhibit E).
This rescission removes an assignment from the chain of title upon which two other
assignments had already been made. Further, based on information and belief, the Note was not
endorsed in this assignment.
43. Plaintiff is informed and believes and thereupon alleges that the Note has not been
endorsed for each assignment while the Security Deed has been assigned three times. Thus, the
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note is with the originating lender, now known as GMAC Mortgage, LLC, while the Security
Deed is with Wilmington Savings Fund Society, FSB, doing business as Christiana Trust as
Trustee for Pretium Mortgage Acquisition Trust.
44. The Security Deed includes a provision in Paragraph 20 that requires that the Note
and the Security Deed to be sold “together”. The actual wording can be found in the excerpt
below. “20. Sale of Note; Change of Loan Servicer: Notice of Grievance. The Note or a
partial interest in the Note (together with this Security Instrument) can be sold one or more
times without prior notice to Borrower.”
45. Plaintiff alleges that the separation of the Note and Security Deed as alleged herein,
is a violation of Paragraph 20, a Uniform Covenant in the Security Deed.
46. The Defendants, and each of them, knew or should have known that the assignment
documents were improper in that the Note was not endorsed with each assignment of the
Security Deed and thereby separating the Note from the Security Deed.
47. The Plaintiff has been injured by the Defendant’s initiation of foreclosure against
Plaintiff’s property on the basis of defective assignments of the Security Deed and Note. Such
actions by the Defendant has
B. NO DEFENDANT HAS STANDING TO FORECLOSE
48. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though
fully set forth herein.
49. An actual controversy has arisen and now exists between Plaintiff and the
Foreclosing Defendants, and each of them, regarding their respective rights and duties, in that
Plaintiff contends that Foreclosing Defendants, and each of them, do not have the right to
foreclose on the Property due to their failure to perfect a secured interest in the Property and
prove to the court they have a valid interest. Thus, Plaintiff alleges that the purported power of
sale claimed by the Foreclosing Defendants, and each of them, is invalid.
50. Plaintiff is informed and believes and thereupon alleges that the Foreclosing
Defendants, and each of them, are not a damaged party and have no standing to execute a
lawful foreclosure claim against the Plaintiff.
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51. Plaintiff is informed and believes and there upon allege that the only individual who
has standing to foreclose is the holder of the note because they have a beneficial interest.
52. Plaintiff is informed and believes and there upon allege that the Foreclosing
Defendants, and each of them, have no right, title and interest in the Note.
53. Plaintiff is informed and believes and there upon allege that the Foreclosing
Defendants, and each of them, do not have rights of a holder in due course of the Note.
54. The Foreclosing Defendants, and each of them, have failed to comply with
Plaintiff’s demand for exhibition of the original Note, by which they claim indebtedness and
institute foreclosure proceedings against Plaintiff.
55. The Foreclosing Defendants, and each of them, have failed to give reasonable
evidence of their authority to make presentment for payment to Plaintiff on behalf of another
person.
56. Plaintiff contends that neither the purported servicer of the alleged loan nor its agent
has produced evidenced of an agency relationship with a “person entitled to enforce” the Note
and therefore lacks both standing to file a proof of claim against the Note and the right to
foreclose on Plaintiff’s property.
57. Plaintiff requests that this Court find that the purported power of sale contained in
the Security Deed has no force and effect, because the actions of the Foreclosing Defendants’,
and each of them, in the processing, handling and attempted foreclosure of this loan involved
numerous fraudulent, false, deceptive and misleading practices, including, but not limited to,
violations of State laws designed to protect borrowers, which has directly caused Plaintiff to be
at an equitable disadvantage to Foreclosing Defendants, and each of them. Plaintiff further
requests the court find that any attempted sale of the Property by Foreclosing Defendants, and
each of them, is unlawful.
B. DEFENDANT MERS CANNOT BE A REAL PARTY IN INTEREST
58. Since the creation of Plaintiff’s Note herein and Security Deed, Defendant MERS
was named the “beneficiary” of the Security Deed.
59. Plaintiff is informed and believes, and thereon alleges, that Defendant MERS lacks
the authority under its corporate charter to foreclose a mortgage, or to own or transfer an
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interest in the Note and Security Deed because MERS charter limits MERS’ powers and duties
to functioning as an electronic registration system of certain types of securities.
60. Plaintiff is informed and believes, and thereon alleges, that in order to conduct a
foreclosure action, a person or entity must have standing.
61. Plaintiff is informed and believes, and thereon alleges, that pursuant to Georgia law,
to perfect the transfer of Note and Security Deed, the owner should physically deliver the note
to the transferee. Without physical transfer, the sale of the note is invalid as a fraudulent
conveyance.
62. The Note in this action identifies the entity to whom it was payable, the original
lender. Therefore, the Note herein cannot be transferred unless it is endorsed; the attachments to
the notice of default do not establish that endorsements were made, nor are there any other
notices which establish that the original lender endorsed and sold the note to another party.
63. Pursuant to state law, to perfect the transfer of mortgage papers as collateral for a
debt, the owner should physically deliver the note to the transferee. Without physical transfer,
the sale of the note is invalid as a fraudulent conveyance, or as unperfected.
64. The Note herein specifically identifies the party to whom it was payable to and the
Note, therefore, cannot be transferred unless it is endorsed.
65. Defendants, and each of them, have produced no evidence that the Promissory Note
has been properly and lawfully transferred. Defendant MERS could only transfer whatever
interest it had in the Security Deed. The Promissory Note and Security Deed are inseparable.
An assignment of the Note carries the mortgage (ie, Security Deed) with it, while an assignment
of the Security Deed alone is a nullity.
66. Defendants MERS has failed to submit documents authorizing MERS, as nominee
for the original lender, to assign the Note and Security Deed. Hence, MERS lacked authority as
mere nominee to assign Plaintiff’s Note and Security Deed, making any assignment from
MERS defective.
67. In the instant action, MERS, as the nominee not only lacks authority to assign the
mortgage, but cannot demonstrate the assignee’s knowledge or assent to the assignment by
MERS to the foreclosing trustee.
68. Any attempt to transfer the beneficial interest of a Security Deed without actual
ownership of the underlying note, is void under law. Therefore, Defendant, MERS, cannot
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establish that it is entitled to assert a claim in this case. For this reason, as well as the other
reasons set forth herein below, MERS cannot transfer an interest in real property, and cannot
recover anything from Plaintiff.
69. Foreclosing Defendants, and each of them, through the actions alleged above, claim
the right to commence foreclosure under the Security Deed and Note on the Property via a
foreclosure action supported by false or fraudulent documents. Said unlawful foreclosure action
has caused and continues to cause Plaintiff’s great and irreparable injury in the threat of loss of
the property.
70. The wrongful conduct of the above specified Foreclosing Defendants, and each of
them, unless restrained and enjoined by an Order of the Court, will continue to cause great and
irreparable harm to Plaintiff. Plaintiff will not have the beneficial use and enjoyment of its
Home and will lose the Property.
71. Plaintiff has no other plain, speedy or adequate remedy and the relief prayed for
below is necessary and appropriate at this time to prevent irreparable loss to Plaintiff. Plaintiff
has suffered and will continue to suffer in the future unless the Foreclosing Defendants, and
each of them, and their wrongful conduct is restrained and enjoined because real property is
inherently unique and it will be impossible for Plaintiff to determine the precise amount of
damage it will suffer.
C. THE FORECLOSING DEFENDANTS HAVE NO POWER OF SALE UNDER THE
SECURITY DEED
72. The Security Deed is constructed to be a conveyance construed under the existing
laws of the State of Georgia as a deed passing title.
73. The Security Deed is also by its construct a covenant and an agreement as indicated
by the language used therein. Section 1 of the Security Deed is prefaced by “Borrower and
Lender covenant and agree as follows:” and pertains to Sections 1 through 21. Section 22 is
prefaced by “Borrower and Lender further covenant and agree as follows:” and pertains to
Sections 22 through 26.
74. Plaintiff alleges that the Security Deed intendeds to memorialize an agreement
between the Borrower and the Lender. The Security Deed contains a provision for a power of
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sale.
75. The Security Deed, being a memorialization of an agreement between the Borrower
and Lender requires a signature from the respective parties. "Under Georgia law, it is clear
that a security deed which includes a power of sale is a contract and its provisions are
controlling as to the rights of the parties thereto and their privies." Gordon v. South Central
Farm Credit, ACA, 213 Ga. App. 816, 817 (446 SE2d 514) (1994).
76. Plaintiff alleges that the Security Deed is signed by only the Borrower and not by the
Lender.
77. Plaintiff alleges that the Security Deed has not been delivered to the original Lender.
78. Plaintiff alleges that the Security Deed has not been accepted by the original Lender.
79. Plaintiff alleges that the Security Deed has not been signed by the original Lender.
80. Plaintiff alleges that the Security Deed is an executory document subject to
rescission and/or revocation by its Grantor prior to its delivery and acceptance.
81. Plaintiff, as Grantor of the Security Deed, hereby revokes his authority for delivery
of the Security Deed.
82. Plaintiff has executed and recorded an “Affidavit of Notice of Revocation of Power
of Attorney and Termination of Attorney in Fact” with relation to the Security Deed. See
Exhibit F.
83. Plaintiff alleges that the lack of Defendant’s signature on the Security Deed also
violates the Statute of Frauds.
84. Plaintiff alleges that the Security Deed conveys neither power of sale nor title nor
interest nor rights to the Foreclosing Defendants, and each of them.
85. Foreclosing Defendants, and each of them, through the actions alleged above, claim
the right to commence foreclosure on the Property under a defective Security Deed. Said
foreclosure action is unlawful and has caused and continues to cause great and irreparable
injury to the Plaintiff in the continued threat of the loss of Plaintiff’s property and home.
86. Although the Security Deed appears valid on its face, it is invalid and of no force
and effect, for the reasons set forth herein including, inter alia, the fact that it is void due to the
wrongful and improper assignments to the Foreclosing Defendants , and each of them.
87. Plaintiff is therefore entitled to an order that the Note and Security Deed are void.
88. As a result of the above alleged wrongs, Plaintiff has suffered general and special
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damages in an amount to be determined at trial.
VI. SECOND CAUSE OF ACTION.
FRAUD IN THE CONCEALMENT
89. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though
fully set forth herein.
90. Defendant GMAC concealed the fact that the Lender did not actually loan any of its
money or credit to the Plaintiff.
91. Defendant GMAC actually provided both the pre-written Note and Security Deed to
Plaintiff for signature.
92. Defendant GMAC concealed the fact that Plaintiff was already lawfully seised in the
estate that he was then being encouraged to convey, by the execution of the Note and Security
Deed, to the Defendants.
93. Defendant GMAC knew or should have known that had the truth been disclosed
regarding said concealments, then Plaintiff might would not have executed the Note and
Security Deed.
94. Defendant GMAC used its position of superior knowledge in finance and banking to
gain an advantage over the Plaintiff’s lack of knowledge of the legal ramifications in executing
the Note and Deed of Trust.
95. Plaintiff’s reasonable reliance upon the Defendant GMAC’s concealment and
misrepresentations cause him to execute the Note and Security Deed.
96. Defendant GMAC’s failure to disclose the material terms of the transaction was
intended to induced Plaintiff to execute the Note and Security Deed in favor of Defendant
GMAC.
97. Defendant GMAC was aware of the misrepresentations and profited from them.
98. As a direct and proximate result of the misrepresentations and concealment, Plaintiff
was damaged by GMAC in an amount to be proven at trial, including but not limited to costs of
Loan, damage to Plaintiff’s financial security, emotional distress, and Plaintiff has incurred
costs and fees.
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99. Defendant GMAC is guilty of malice, fraud and/or oppression. Defendant GMAC's
actions were malicious and done willfully in conscious disregard of the rights and safety of
Plaintiff in that the actions were calculated to injure Plaintiff. As such Plaintiff is entitled to
recover, in addition to actual damages, punitive damages to punish GMAC and to deter them
from engaging in future misconduct.
VII. THIRD CAUSE OF ACTION.
FRAUD IN THE INDUCEMENT
100. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though
fully set forth herein.
101. The Foreclosing Defendants, and each of them, intentionally misrepresented to
Plaintiff that they have the right to exercise the power of sale provision contained in the
Security Deed. In fact, the Foreclosing Defendants, and each of them, are not entitled to
exercise the power of sale as they have no legal, equitable, or actual beneficial interest
whatsoever in the Property.
102. The Foreclosing Defendants, and each of them, have misrepresented that they are the
holder and owner of the Note and the beneficiary of the Security Deed. However, this is not
true and is a misrepresentation of material fact.
103. The Foreclosing Defendants, and each of them, are attempting to collect on a debt to
which they have no legal, equitable, or pecuniary interest in.
104. The Foreclosing Defendants, and each of them, fraudulently instituted foreclosure
proceedings on the Property which they have no monetary or pecuniary interest.
105. Defendant's failure to disclose the material terms of the transaction induced Plaintiff
to execute the Note and Security Deed in favor of the Defendant, as alleged herein.
106. The material misrepresentations were made by the Foreclosing Defendants, and each
of them, with the intent to cause Plaintiff to reasonably rely on the misrepresentation and induce
the Plaintiff to acquiesce to their foreclosure actions on the Property.
107. The Foreclosing Defendants, and each of them, were aware of the misrepresentations
and profited from them.
108. The Foreclosing Defendants, and each of them, publicly advertised falsely that they
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had a right and cause for power of sale against Plaintiff’s property and damaged Plaintiff by
stigma and public announcement of sale and foreclosure of Plaintiff’s property.
109. As a direct and proximate result of the misrepresentations and concealment, Plaintiff
was damaged in an amount to be proven at trial, including but not limited to damage to
Plaintiff’s financial security, emotional distress, and Plaintiff has incurred costs and fees.
110. The Foreclosing Defendants, and each of them, are guilty of malice, fraud and/or
oppression. The actions of the Foreclosing Defendants, and each of them, were malicious and
done willfully in conscious disregard of the rights and safety of Plaintiff in that the actions were
calculated to injure Plaintiff. As such, Plaintiff is entitled to recover, in addition to actual
damages, punitive damages to punish the Foreclosing Defendants, and each of them, and to
deter them from engaging in future misconduct.
VIII. FOURTH CAUSE OF ACTION.
SLANDER OF TITLE
111. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though
fully set forth herein.
112. The Foreclosing Defendants, and each of them, disparaged Plaintiff's exclusive and
valid title by and through the preparing, posting, publishing, and recording of the documents
including, but not limited to, Notice of Sale under Power, and Security Deed.
113. The Foreclosing Defendants, and each of them, knew or should have known that
such documents were improper because at the time of the execution and delivery of said
documents, the Foreclosing Defendants, and each of them, had no right, title, or interest in the
Property. These documents were naturally and commonly interpreted as denying, disparaging,
and casting doubt upon Plaintiff's legal title to the Property. By posting, publishing, and
recording said documents, a disparagement of Plaintiff's legal title was made to the world at
large by the Foreclosing Defendants, and each of them.
114. As a direct and proximate result of the publishing of these documents by the
Foreclosing Defendants, and each of them, Plaintiff’s title to the Property has been
disparaged and slandered and clouded. Plaintiff has suffered, and continues to suffer,
damages in an amount to be proved at trial.
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115. As a further proximate result of the actions by the Foreclosing Defendants, and each
of them, Plaintiff has incurred expenses in order to clear title to the Property. Moreover, these
expenses are continuing, and Plaintiff will incur additional charges for such purpose until the
cloud on Plaintiff's title to the property has been removed. The amounts of future expenses and
damages are not ascertainable at this time.
116. As a further direct and proximate result of the actions by the Foreclosing
Defendants, and each of them, Plaintiff has suffered humiliation, mental anguish, anxiety,
depression, and emotional and physical distress, resulting in the loss of sleep and other injuries
to his health and well-being, and continues to suffer such injuries. The amount of such damages
shall be proven at trial.
117. At the time that the false and disparaging documents were created and published by
the Foreclosing Defendants, and each of them, knew or should have known that the documents
were false, and had created and published them with the malicious intent to injure Plaintiff and
deprive him of his exclusive right, title, and interest in the Property, and to obtain the Property
for their own use by unlawful means.
118. The conduct of the Foreclosing Defendants, and each of them, in publishing the
documents described above was fraudulent, oppressive, and malicious. Therefore, Plaintiff is
entitled to an award of punitive damages in an amount sufficient to punish the Foreclosing
Defendants, and each of them, for their malicious conduct and deter such misconduct in the
future.
IX. FIFTH CAUSE OF ACTION.
QUIET TITLE
119. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though
fully set forth herein.
120. Plaintiff is recorded as the Grantee of the subject property by a Special Warranty
Deed that was Filed & Recorded on 7-11-2004 with Georgia officials, namely, the clerk of
superior court of Dekalb County at Book 8249, Page 248. (Exhibit G, Pg. 2).
121. Plaintiff recorded a “Certificate of Acceptance” on 2/16/2016 with the clerk of
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superior court of Dekalb county at Book 25402, Page 205 to update the record to show
Plaintiff’s acceptance of said Special Warranty Deed and to make it operative as constructive
notice that the Plaintiff is the owner, in fee simple, of all property and interest conveyed by said
Special Warranty Deed. (Exhibit G, Pg. 1)
122. All the Foreclosing Defendants, and each of them, claim an interest and estate in the
Note secured by the Security Deed to the subject property.
123. All the Foreclosing Defendants, and each of them, claim an interest and estate in the
Security Deed securing the note to the subject property.
124. Plaintiff alleges that MERS, as grantee of the Security Deed, thereby neither
acquired a protected interest in the subject property nor did any to whom MERS made an
assignment.
125. The claims of the Foreclosing Defendants, and each of them, to the rights and title to
the subject property, are invalid, and said defendants have neither right, estate, title, lien nor
interest in the subject property.
126. The Foreclosing Defendants, and each of them, claim some estate, right, title, lien or
interest in the subject property, adverse to plaintiff's title, and these claims constitute a cloud on
plaintiff's title to the subject property.
127. Plaintiff alleges, upon information and belief, that the Foreclosing Defendants, and
each of them, do not hold a perfected and secured claim to the subject Property,
128. Plaintiff alleges, upon information and belief, that the Foreclosing Defendants, and
each of them, are estopped and precluded from asserting an unsecured claim against the subject
property.
129. Plaintiff alleges, upon information and belief, that neither the Servicer, nor the
alleged owner of the Note, nor the alleged entity that has full authority to negotiate, amend, and
modify all terms of the Security Deed with the debtor, nor the alleged secured creditor either
holds, owns, or possesses the Note.
130. Plaintiff alleges, upon information and belief, that neither the Servicer, nor the
alleged owner of the Note, nor the alleged entity that has full authority to negotiate, amend, and
modify all terms of the Security Deed with the debtor , nor the alleged secured creditor has any
authority to enforce said Note.
131. Plaintiff has no other course or proceeding that will successfully allow for the
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protection of Plaintiff’s rights in the subject property.
132. The Plaintiff seeks to cancel the Note and Security Deed which are invalid due to
reasons including, but not limited to, improper assignments that separated the Note from
Security Deed. The Note and Security Deed have provisions that, if valid, would allow the
Foreclosing Defendants, and each of them, to make claim against and cast a cloud on the
subject property. The Foreclosing Defendants, and each of them, are in reliance on said Note
and Security Deed to claim interest and legal title to the subject property, thereby casting a
cloud on the subject property.
133. Plaintiff is currently in possession of the subject property, and is presently
threatened with foreclosure of the subject property by the Foreclosing Defendants, and each of
them, in their reliance on the Note and Security Deed.
134. Plaintiff requests a decree from the court to permanently enjoin defendants, and
each of them, and all persons claiming under them, from asserting any adverse claim to
plaintiff's title to the subject property ;
135. Plaintiff requests a decree and final order from the court to cancel the Note and
Security Deed and the cloud on title caused by said documents.
136. Plaintiff request the court to award the plaintiff costs of this action, and such other
relief as the court may deem proper.
X. SIXTH CAUSE OF ACTION.
DECLARATORY RELIEF
137. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though
fully set forth herein.
138. An actual controversy has arisen and now exists between Plaintiff and the
Foreclosing Defendants, and each of them, concerning their presumed rights and duties
regarding the Note and Security Deed.
139. Plaintiff contends that due to the invalidity of the Note and Security Deed, the
Foreclosing Defendants, and each of them, do not have authority to foreclose upon and sell the
Subject property.
140. Plaintiff is informed and believes and alleges that the Foreclosing Defendants, and
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each of them, presume to have and exercise the right to foreclose on the subject property.
141. Plaintiff therefore request a judicial determination of the rights, obligations and
interest of the parties with regard to the Property, and such determination is necessary and
appropriate at this time under the circumstances so that all parties may ascertain and know their
rights, obligations and interests with regard to the Property.
142. Plaintiff requests a determination of the validity of the Note and Security Deed as of
the date the Security Deed was assigned without a concurrent assignment of the underlying
Note.
143. Plaintiff requests a determination of the validity of the Notice of Default which
was presented by a previous Servicer and Lender (Exhibit H ) prior to the latest assignment
of the Security Deed to the present Lender (Exhibit D).
144. Plaintiff requests a determination of whether any Defendant has authority to
foreclose on the Property.
145. Plaintiff requests all adverse claims to the property be determined by a decree of this
court.
146. Plaintiff requests the decree declare and adjudge that plaintiff is entitled to the
exclusive possession of the property.
147. Plaintiff requests the decree declare and adjudge that plaintiff owns in fee
simple, and is entitled to the quiet and peaceful possession of the property.
148. Plaintiff requests the decree declare and adjudge that defendants, and each of them,
and all persons claiming under them, have no estate, right, title, lien, or interest in or to the real
property or any part of the property.
PRAYER FOR RELIEF
WHEREFORE Plaintiff, requests the court to grant the following for each
respective Cause of Action:
FIRST CAUSE OF ACTION – LACK OF STANDING TO FORECLOSE 1. For Compensatory Damages in an amount to be determined by proof at trial; 2. For Special Damages in an amount to be determined by proof at trial; 3. For General Damages in an amount to be determined by proof at trial; 4. For Punitive Damages as allowed by law;
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5. For Restitution as allowed by law; 6. For fees and costs of this action; 7. For Declaratory Relief, including but not limited to the following Decrees of this
Court that: a. Plaintiff is the prevailing party; b. Determines all adverse claims to the real property in this proceeding; c. Plaintiff is entitled to the exclusive possession of the property; d. Plaintiff owns in fee simple, and is entitled to the quiet and peaceful
possession of, the above-described real property. e. The Foreclosing Defendants, and each of them, and all persons claiming
under them, have no estate, right, title, lien, or interest in or to the real property or any part of the property.
SECOND CAUSE OF ACTION - FRAUD IN THE CONCEALMENT 1. For Compensatory Damages in an amount to be determined by proof at trial; 2. For Special Damages in an amount to be determined by proof at trial; 3. For General Damages in an amount to be determined by proof at trial; 4. For Punitive Damages as allowed by law; 5. For Restitution as allowed by law;
THIRD CAUSE OF ACTION - FRAUD IN THE INDUCEMENT 1. For Compensatory Damages in an amount to be determined by proof at trial; 2. For Special Damages in an amount to be determined by proof at trial; 3. For General Damages in an amount to be determined by proof at trial; 4. For Punitive Damages as allowed by law; 5. For Restitution as allowed by law;
FIFTH CAUSE OF ACTION - SLANDER OF TITLE
1. For Compensatory Damages in an amount to be determined by proof at trial; 2. For Special Damages in an amount to be determined by proof at trial; 3. For General Damages in an amount to be determined by proof at trial; 4. For Punitive Damages as allowed by law; 5. For Restitution as allowed by law; 6. For Fees and Costs of this action; 7. For Declaratory Relief, including but not limited to the following Decrees of this
Court that: a. Plaintiff is the prevailing party; b. Determines all adverse claims to the real property in this proceeding; c. Plaintiff is entitled to the exclusive possession of the property; d. Plaintiff owns in fee simple, and is entitled to the quiet and peaceful
possession of, the above-described real property. e. The Foreclosing Defendants, and each of them, and all persons claiming
under them, have no estate, right, title, lien, or interest in or to the real property or any part of the property.
SIXTH CAUSE OF ACTION - QUIET TITLE
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1. For Compensatory Damages in an amount to be determined by proof at trial; 2. For Special Damages in an amount to be determined by proof at trial; 3. For General Damages in an amount to be determined by proof at trial; 4. For Punitive Damages as allowed by law; 5. For Restitution as allowed by law; 6. For Fees and Costs of this action; 7. For Declaratory Relief, including but not limited to the following Decrees of this
Court that: a. Plaintiff, Plaintiff is the prevailing party; b. Determines all adverse claims to the real property in this proceeding; c. Plaintiff is entitled to the exclusive possession of the property; d. Plaintiff owns in fee simple, and is entitled to the quiet and peaceful
possession of, the above-described real property. e. The Foreclosing Defendants, and each of them, and all persons claiming
under them, have no estate, right, title, lien, or interest in or to the real property or any part of the property.
SEVENTH CAUSE OF ACTION - DECLARATORY RELIEF 1. For Compensatory Damages in an amount to be determined by proof at trial; 2. For Special Damages in an amount to be determined by proof at trial; 3. For General Damages in an amount to be determined by proof at trial; 4. For Punitive Damages as allowed by law; 5. For Restitution as allowed by law; 6. For Attorney’s Fees and Costs of this action; 7. For Declaratory Relief, including but not limited to the following Decrees of this
Court that: a. Plaintiff is the prevailing party; b. Determines all adverse claims to the real property in this proceeding; c. Plaintiff is entitled to the exclusive possession of the property; d. Plaintiff owns in fee simple, and is entitled to the quiet and peaceful
possession of, the above-described real property. e. The Foreclosing Defendants, and each of them, and all persons claiming
under them, have no estate, right, title, lien, or interest in or to the real property or any part of the property.
Respectfully Submitted.
Dated: March 9th, 2017 Plaintiff
