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

FILED IN C L E R K ' S OFFICE

U.S.D.C. Atlanta

IN T H E U.S.DISTRICT COURT FOR

T H E NORTHERN BISTRICT OF G E O R G I A

DEC - 2 2011
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 L A W IN
PLAINTIFF'S O F F E R OF PROOF AND
N O T I C E 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 Page 2 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 will best serve the purposes
of the rules of evidence and the interests of justice will 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,

Case 1:14-cv-02130-MHC Document 54 Filed 12/02/14 Page 3 of 19

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)

Case 1:14-cv-02130-MHC Document 54 Filed 12/02/14 Page 4 of 19

CHASE CANNOT E X E R C I S E POWER O F S A L E

2
The deep issue before this Court boils down to a straightforward question of
contractual interpretation:
Is Paragraph 18 ofthe Security Deed titled; Foreclosure
contrary to the MEMS clause ofthe Security Deed?

Procedure

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

Case 1:14-cv-02130-MHC Document 54 Filed 12/02/14 Page 5 of 19

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 NonFinal Report and Recommendation.

Case 1:14-cv-02130-MHC Document 54 Filed 12/02/14 Page 6 of 19

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 DeedGeorgia 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 will 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 youthe successor and

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

Case 1:14-cv-02130-MHC Document 54 Filed 12/02/14 Page 7 of 19

assignee cannot exercise power of sale. The statue speaks for itselfit says
what it says.
Paragraph 18 of the Plaintiffs Security Deed is without a doubt contrary to
the MERS clausethe 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 ChaseIt 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.

Case 1:14-cv-02130-MHC Document 54 Filed 12/02/14 Page 8 of 19

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 Bankpersonal 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.

Case 1:14-cv-02130-MHC Document 54 Filed 12/02/14 Page 9 of 19

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)

Case 1:14-cv-02130-MHC Document 54 Filed 12/02/14 Page 10 of 19

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

Case 1:14-cv-02130-MHC Document 54 Filed 12/02/14 Page 11 of 19

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

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

T H E O F F E R 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 will 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 will 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

Case 1:14-cv-02130-MHC Document 54 Filed 12/02/14 Page 13 of 19

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

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

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

Case 1:14-cv-02130-MHC Document 54 Filed 12/02/14 Page 15 of 19

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 contractverbal 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

Case 1:14-cv-02130-MHC Document 54 Filed 12/02/14 Page 16 of 19

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

Case 1:14-cv-02130-MHC Document 54 Filed 12/02/14 Page 17 of 19

Case 1:14-cv-02130-MHC
MERS Services

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