Memo of Law to Support Offer of Proof

F I L E D IN C L E R K ' S OFFICE U.S.D.C. Atlanta

IN THE U.S.DISTRICT COURT FOR DEC - 2 2011 T H E NORTHERN BISTRICT OF GEORGIA j^^gg ^̂ ^̂ ^̂ ^ ^^^^^^

CIVIL DIVISION - CASE # 1.T4-CV-2130-MHC-JFK

ALEXANDER HARVIN, Plaintiff

Vs. NATIONWIDE TITLE CLEARING, JP MORGAN CHASE, N.A., WARGO FRENCH, LLP, BARBARA WATKINS, ERICA LANCE, LATOYA JACKSON, DAVID PERNINI, DUSTIN SHARPES SHANNON McGINNIS, TOMMIE NELSON

Defendants, /

PLAINTIFF'S MEMORANDUM OF LAW IN PLAINTIFF'S O F F E R OF PROOF AND

NOTICE OF USE OF DEPOSITIONS

Following the denial of Plaintiffs Motions For Limited Discovery, Plaintiff

has served notice to use the depositions of R.K.Arnold, William Hultman,

and Erika Lance as evidence of the material fact that the Assignment is not a

contract.

Specifically Plaintiff invokes Federal Rules of Evidence 807; and states that

these depositions:

(1) Have the equivalent guarantee of trustworthiness.

1

Case 1:14-cv-02130-MHC Document 54 Filed 12/02/14 of 19

(2) Are offered as evidence of a material fact.

(3 ) Are more probative on the point of whether the Assignment is a

contract because Plaintiff cannot obtain other evidence in lieu of

Judge King's denial of the discovery request.

(4) Admitting these depositions as evidence wi l l best serve the purposes

of the rules of evidence and the interests of justice wil l be served.

T H E COMPLAINTS STATE AN FDCPA C L A I M

1

Paragraph nine of the complaint states that Chase and NTC created an

Assignment to create the illusion of Chase as a creditor. Count Two of the

complaint states; "Plaintiff repeats and reiterates the allegations in each

paragraph cited above as i f fully set forth herein. The actions of Chase

constitute a false and misleading attempt to collect a debt in violation 15

use § 1692e.

Section 1692e ofthe FDCPA reads: " A debt collector may not use any

false, deceptive, or misleading representation or means in connection with

the collection of any debt. Without limiting the general application ofthe

foregoing...the following conduct is a violation of this section..."

The phrase : without limiting the general application of the foregoing,

2


Grants broad latitude to this section ofthe FDCPA that includes the

intentional drafting and recordation of a false, deceptive, and misleading

Assignment.

Clearly paragraph nine of the complaint in conjunction with count two of the

complaint states a cause of action under the FDCPA.

Next Paragraph 7 states that Plaintiff owes no money to Chase nor is Chase

a creditor of Plaintiff. Paragraph nine is repeated, and Paragraph 16 states

that Chase did not purchase the debt.

Count three ofthe complaint repeats and reiterates the allegations in each

paragraph cited above as i f fully set forth herein. States that the Defendants

have engaged in an unfair business practice in violation of 15 USC § 16921

This section of the FDCPA declares that a debt collector may not use unfair

or unscrupulous means to collect or attempt to collect a debt, such as

threatening to effect dispossession of property by non-judicial means when

there is no present right to possession of the property claimed as collateral

through an enforceable security interest.

Count three of the complaint states a claim under the FDCPA. ̂

' See, Bourffvs Rubin Lubbin, L L C , 674 F.3d 1238 (11* Cir.2012)

3


CHASE CANNOT E X E R C I S E POWER OF SALE

2

The deep issue before this Court boils down to a straightforward question of

contractual interpretation:

Is Paragraph 18 ofthe Security Deed titled; Foreclosure Procedure contrary to the MEMS clause ofthe Security Deed?

This is the overarching question that swallows the sub-issues. In this

memorandum of law, in light ofthe Defendants opposition. Plaintiff seeks to

develop this major issue. Plaintiff does not waive or abandon any arguments

necessary to the sub-issues.

power of sale.

In You vs. JP Morgan Chase Bank, 293 Ga.67, 69 (Ga.2013), the Georgia

Supreme Court held that the party named in the Security Deed may exercise

power of sale according to the terms of the security deed.

The Defendants and Judge King refer to cases where courts have held that a

party may implement the power of sale assigned by MERS. Contrary to

popular opinion this cookie-cutter approach cannot be applied to every case

because no two-security deeds are alike.

The Plaintiffs Security Deed is clearly distinguishable from those in the

cases relied upon by Judge King and the Defendants. Specifically Plaintiffs

4


Security Deed provides a detailed procedure for foreclosure. This procedure,

paragraph 18, was agreed to by Plaintiff and the Lender identified in the

Security Deed, Southtrust Mortgage Corporation aka SMC. Paragraph 18

specifically grants the power to sale to the Lender identified in the Security

Deed, SMC.

The cardinal rule of contract construction is to determine the intent of the

parties as expressed within the four corners ofthe written agreement.̂

I concur with opposing counsel, Jeremy Ross's view that" in all cases

where the parties have reduced their contract, agreement, or stipulation

to writing and have assented thereto, such writing is the best evidence of

the same.- '

The terms of the Security Deed are not ambiguous. SMC and the Plaintiff

were aware ofthe MERS clause; both agreed in writing that paragraph 18

was to be followed in the event of default. Specifically SMC and the

Plaintiff agreed that in the event of default, SMC would exercise power of

sale. Paragraph 18 does not confer the power of sale to successors or

assignees.

Under Georgia law, OCGA § 13-2-2, i f the intent of paragraph 18 is in doubt

and it has to be interpreted in a way that favors one party over the other, the

' OCGA § 13-2-2 ^ See page 4 NTC and Erica Lance Brief In Opposition to Plaintiffs Objections to the Magistrate's Non-Final Report and Recommendation.

5


statue requires interpretation against the party that actually drafted the

contract. This is because Georgia law assumes that the writers ofthe contract

were at the biggest advantage and the party that did not write the contract

[Plaintiff] is already at a disadvantage so it should be interpreted in their

[Plaintiffs] favor.

Plaintiff did not write the tenns ofthe Security Deed—Georgia law favors

the Plaintiff regarding any dispute over the intent of paragraph 18.

B. OCGA § 23-2-114 Is Controlling

I am not a lawyer, but in my studies and research for this case I have found

that the experts agree that i f there is something that negatively affects your

case, you should bring it to the Court's attention before your opponent does."*

The above-cited statue has a detrimental effect upon the Defendants

position, yet they have failed to address this point. Choosing instead to be

reticent, hoping that neither the Court nor I wil l see the compelling change

of direction that this statue brings to this case.

OCGA § 23-2-114 is addressed to the successors and assigns and states that

i f the security instrument has a provision that is contrary to the assigned

power of sale [received from MERS]—then you—the successor and

" The Winning Brief, by Br>an A. Gamer

6


assignee cannot exercise power of sale. The statue speaks for itself—it says

what it says.

Paragraph 18 of the Plaintiffs Security Deed is without a doubt contrary to

the MERS clause—the statue is controlling and the power of sale inherited

from MERS by Chase is merely symbolic and has no substance.

JP Morgan Chase Bank, N.A., cannot exercise power of sale.

Now this does not mean that the Plaintiff somehow gets a "free house", quite

the contrary. It only means that i f there is truly a debt owed to Chase—It is

not secured.

Accordingly, like any other debt collector i f a debt is actually owed Chase

may file suit against Plaintiff to recover such debt.

7


T H E DRUG MONEY

3

From 2003 to 2008 Wachovia Bank, N.A., laundered over 380 billion dollars

for certain Mexican Drug Cartels. Law abiding citizens, law enforcement

personnel, judges, etc., on both sides ofthe border were maimed or

murdered in the allocation of this blood money.

It is undisputed that the U.S. Attomey for the Southern District of Florida

indicted Wachovia Bank for money laundering. Profits from this money

laundering scheme were commingled with regular operating capital for

Wachovia Bank—personal loans, mortgages, lines of credit, were

contaminated with profits from Wachovia's drug money.

In 2003 Wachovia financed and / or purchased Plaintiffs mortgage with

earnings from its money laundering operation. The Defendants argue that

this is "absurd".^

Judge King stated in her R & R that she would not consider this allegation

because neither Wachovia nor its successor Wells Fargo was a party to this

action.

8


In response to Judge King's position Plaintiff has filed a Motion For Joinder

of Parties seeking to add Wells Fargo as a defendant to ascertain whether

Wachovia Bank either (a) financed the mortgage with money laundering

profits or (b) purchased the mortgage with money laundering profits. I f the

evidence shows that the mortgage is infected with drug money then the

hands of JP Morgan Chase Bank, N.A., as successor/ assignee are unclean.

The Motion For Joinder of Parties is not a dilatory act.

Chase should not be allowed to benefit from the fruit of the poisonous tree.^

r

\

* Wong Sun Vs. United States, 371 US 471, 83 S.Ct. 407 (1963)

9


IMPROPER COMMENTS

4

Attorney Dustin S.Sharpes has implied that there are issues of res judicata

and / or collateral estoppel involved in this case. Plaintiff objects to this

improper attempt to prejudice the Court.

I f issues of res judicata and / or collateral estoppel are present then counsel

must present a definitive position and not imply otherwise. These groundless

attempts to influence the Court reveal desperation.^

Mr. Sharpes argument conceming the expenditure of money is simply a

reflection of his frustration with his client's cap on the payment for services

rendered.

10


FRAUD

5

Judge Kings concludes that the Defendants have not committed fraud.

Plaintiff does not imply fraud in the manner described by Judge King.

Rather Plaintiffs position is that fraud exists because the signature of Notary

Tommie J.Nelson was forged on the Assignment, thereby engaging in a

scheme to interfere with the judicial machinery-performing task of impartial

adjudication, as by preventing Plaintiff from fairly presenting his case.**

The Assignment was created by the Defendants to deceive and mislead this

Court into believing that (a) Chase is the owner/creditor/investor, and (b) the

Assignment is a contract.

The depositions of R.K. Arnold, William Hultman, and Erica Lance establish

that there is an ongoing fraud upon the Court.

' See Blacks Law Dictionary: Fraud On The Court

11


T H E OFFER OF PROOF

€

Plaintiffs Offer of Proof establishes the evidence that would be available i f

the Magistrate had allowed limited discovery. This is just the tip ofthe

iceberg—^further discovery wi l l reveal that interest was never conveyed to

Chase and that NTC as a member of MERS assigned interest to Chase.

The Security Deed does not allow NTC to convey interest to Chase. The

Assignment was created in the Florida offices of NTC and endorsed by

employees of NTC .

Additional discovery wil l show that employees of NTC are forging the name

of Notary Tommie J.Nelson to documents that convey interest in real

property around the Nation.

12


CONCLUSION

Let's take a look at the actual evidence that has been submitted to date by

both parties:

PLAINTIFF DEFENDANTS

Disposition testimony from MERS stating that the Assignment Is not a contract

Verbal assurance from the Attorneys that the Assignment Is a contract

Assignment exhibits that bear The forged signature of Notary Tommie J.Nelson

The Oath of Service from the Louisiana Dept of Notary Services With the commissioned signature of Notary Tommie J.Nelson

Paragraph 18 ofthe Security Deed OCGA § 23-2-114 OCGA § 13-2-2

13


The Defendants have presented no evidence to refute any of the evidence

submitted by Plaintiff. The attorneys, Dustin S.Sharpes, and Jeremy Ross,

have given the Court their verbal assurance that the Assignment is a

contract.

Neither attomey has submitted sworn testimony attesting to have personal

knowledge that the Assignment is indeed a contract. No one from JP Morgan

Chase Bank, N.A., and / or NTC has come forth to give swom testimony

attesting to have personal knowledge that the Assignment is a contract.

Yet these Defendants seek permission from the Court to take my home

based on their verbal assurances.

The credibility of these Defendants and their attomeys is absent. For

example, consider that in Kalicki, supra, a Superior Court Judge held that JP

Morgan Chase Bank, N.A., forged an Assignment to create the illusion that

interest in real property was transferred to Chase. Next, in JP Morgan Chase

Bank, N.A., vs. Butler, 2013 NY Slip OP 51050 (U), [40 Misc 3d 1205 (A)],

for approximately three years Chase thm various attomeys misrepresented to

the court that Chase was the owner of the mortgage and note. Following

further development. Chase conceded that it did not own the Butler

mortgage and note.

14


In case # 12 CH 03602, Circuit Court, Cook County Illinois, Defendant

NTC settled that case amid accusations from the Illinois Attomey General

that NTC was recording forged assignments in the public land records of

that State.

In consideration of the aforementioned capacity to engage in criminal acts

by these Defendants, the Court must require more than a verbal assurance of

sincerity from their attorneys.

Judge King's recommendations cannot be upheld without evidence in the

record to establish that the Assignment is a contract—verbal assurances

from counsel is an insufficient basis for the removal of a family from their

home.

In light of paragraph 18 ofthe Security Deed and OCGA § 23-2-114, there

can be no removal of this family from their home. Last of all the complaint

does state a cause of action under the FDCPA

It is possible the parties may be able to resolve their differences thm

settlement. Until such time occurs Plaintiff requests that for the reasons cited

herein Judge King's R & R must be rejected in its entirety.

Respectfrilly Submitted,

15


CERTIFICATE OF SERVICE

On this 1st day of December 2014, a true and correct copy of Plaintiff s

Memorandum of Law In Support of Plaintiffs Offer of Proof and Notice of

Use of Depositions was mailed to:

Dustin S.Sharpes 999 Peachtree Street, N.E.

26* Floor Atlanta, Ga. 30309

Mr. Jeremy B.Ross Counsel for Defendants NTC and Erica Lance

40 Technology Parkway South Suite 300

Norcross, Ga. 30092

In Pro Se

16


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Memo of Law to Support Offer of Proof

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