IN THE SUPERIOR COURT OF COWETA COUNTY
STATE OF GEORGIA
PLAINTIFFS,) CIVIL ACTION FILE NO.
Husband and Wife, )
Plaintiffs, by this Verified Complaint, sue Defendants for emergency injunctive and declaratory relief and to stay an imminent foreclosure sale, and state:
Defendant U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR THE STRUCTURED ASSETS CORPORATION MORTGAGE LOAN TRUST 2006-NC-1 (hereafter “USB”) was, at all material times hereto, a corporation whose corporate domicile and alleged authority to do business in the State of Georgia is unknown. Defendant USB is a corporate entity functioning as an alleged trustee for another corporation’s mortgage loan trust which has instituted a foreclosure proceeding in this State pursuant to a Notice of Sale Under Power (copy attached hereto as part of Exhibits “A” and “C” and incorporated herein by reference) whereby USB is attempting to sell the Plaintiffs’ property at public outcry to the highest bidder for cash in connection with a claimed default on loan number 1100191535/106 for property address in Sharpsburg, Georgia 30277 (the “Property”).
Defendant AMERICA’S SERVICING COMPANY (“ASC”) is and was at all times material hereto a corporation having its principal place of business at 3476 Stateview Boulevard, MAC#X7801-013, Fort Mill, South Carolina 29715, which may have an interest in the Property as a result of a demand from ASC’s Atlanta, Georgia counsel as set forth more fully herein.
Defendants DOES 1-10 are unknown at this time but may, as a result of the securitized mortgage transaction referred to more fully herein, have an interest in the Property and the mortgage documents (Note and Security Deed) attendant thereto.
The real property the subject of this action is located in Coweta County, Georgia.
In or about February 20, 2006, Plaintiffs executed a Note and Security Deed in favor of non-party Foundation Financial Group in connection with the purchase of the Property.
At some time unknown to the Plaintiffs, the Note was purportedly assigned, for servicing purposes, to Defendant ASC. It is unknown who presently owns and holds the actual original Note.
At some time unknown to the Plaintiffs, the Security Deed was purportedly assigned to Defendant USB pursuant to an affirmative representation in the attached Notice of Sale Under Power (part of Exhibits “A” and “C” attached hereto and so marked).
The Notice of Sale Under Power fails to recite that Defendant USB is the holder and owner of the Note, there being only a general reference to “the holder thereof”, and also fails to recite any particulars as to any alleged assignment of the Security Deed from non-party Foundation Financial to Defendant USB.
By letter dated June 23, 2008 (copy attached hereto marked Exhibit “A”), counsel for Defendant ASC affirmatively represented, in writing, that the “client”, that being Defendant ASC, “has accelerated and does hereby accelerate the balance of your [Plaintiffs’] loan”, that being loan number 1100191535/106 for property address in Sharpsburg, Georgia 30277.
However, said correspondence does not identify Defendant ASC as the owner and holder of the Note, and fails to affirmatively represent that Defendant ASC owns and holds the Security Deed or has any rights therein or thereto which would support a foreclosure of the Property.
By letter dated June 25, 2008 to Plaintiffs from Defendant ASC (copy attached hereto marked Exhibit “B”), said Defendant confirmed, in writing, that said Defendant is only the servicer of the loan and is not the originating lender.
The same law Firm which provided Plaintiffs with written notice on June 23, 2008 that the “client” for purposes of the loan and foreclosure sale was Defendant ASC is the same law Firm which also, one month later on July 23, 2008, affirmatively represented in writing that the “client” for purposes of the subject loan and foreclosure sale was Defendant USB. (copy attached hereto marked Exhibit “C”)
Prior to the filing of this action, Plaintiffs requested the subject law Firm to provide clarification as to who owned and held the subject Note and Security Deed, as non-party Foundation Financial (the originating lender) had notified Plaintiffs, in writing by letter dated February 26, 2008 (copy attached hereto marked Exhibit “D”), that Foundation does not own the mortgage; that it was “sold to another investor”, and that “We [Foundation] do not know who currently owns her mortgage.”
No response to said request was received.
By virtue of the full legal name Defendant USB, the written admissions of counsel of Defendants USB and ACS, and the admission of the originating lender Foundation Financial, the Note and Security Deed were part of a securitized mortgage transaction where the Security Deed and Note were, at some point after original execution by the Plaintiffs, severed and sold, assigned, or transferred to separate entities with certain rights being sold separately, to wit:
(a) Foundation sold the Security Deed to an investor whose identity
(b) The servicing rights to the Note were sold separately to Defendant ASC;
(c) The Security Deed has allegedly been sold, assigned, or transferred indirectly to Defendant USB (as the Notice of Sale Under Power fails to recite that the assignment or sale of the Security Deed was direct from Foundation Financial and in view of Foundation Financial’s February 26, 2008 written admission that it does not know who currently owns the Security Deed);
(d) Correspondence from counsel for Defendants USB and ASC indicates that Defendant ASC only has servicing rights to the loan and the Notice of Sale Under Power indicates that Defendant USB only has purported rights to the Security Deed.
17. Neither Defendant USB nor Defendant ASC has established both the existence of the mortgage and mortgage note, or ownership of the note and mortgage as well.
18. The admissions of record demonstrate that neither Defendant ASC nor Defendant USB have legal or equitable interests in both the Note and Security Deed which are a legal prerequisite to institute and maintain a foreclosure, and that such interests may in fact lie with one or more of Defendants DOES 1-10.
19. As a severance of the ownership and possession of the original Note and Security Deed has occurred and as the true owner and holder of both the original Note and Security Deed are unknown as a result of multiple assignments and written admissions set forth above, Defendants USB and ASC are legally precluded from foreclosing and selling the Property.
The Georgia Department of Banking and Finance has notified counsel for Defendants USB and ASC in writing dated July 1, 2008 (copy attached marked Exhibit “E”) that said counsel’s foreclosure sale notice letter “may not be in accordance with new notice provisions involving foreclosure proceedings as required under Georgia law. Based upon changes this past legislative session, O.C.G.A. sec. 44-14-162.2 requires in part that “notice…shall include the name, address, and telephone number of the individual or entity who shall have the full authority to negotiate, amend, and modify all terms of the mortgage with the debtor”. (emphasis added in letter)
The letter of counsel for Defendants USB dated July 23, 2008 (Exhibit “C”) fails to comply with the notice provisions of O.C.G.A. sec. 44-14-162.2 as said letter does not contain the name, address, and telephone number of the individual or entity who has full legal authority to negotiate, amend, or modify all terms of the mortgage with the debtor.
As such, Defendants USB and ASC are without legal standing and are legally precluded from foreclosing on and selling the Property.
Plaintiffs reaffirm and reallege paragraphs 1 through 22 hereinabove as if set forth more fully hereinbelow.
24. This is an action for emergency temporary and permanent injunctive relief which is brought pursuant to O.G.C.A. sec. 9-5-1 and sec. 9-5-3, and on an emergency basis without notice pursuant to O.G.C.A. sec. 9-11-65(b).
25. O.C.G.A. sec. 9-5-1 provides that equity, by writ of injunction, may restrain any act of a private individual or corporation which is illegal or contrary to equity and good conscience and for which no adequate remedy is provided at law.
26. O.C.G.A. sec. 9-5-3(b) provides that writs of injunction may be issued by the superior courts to enjoin sales by sheriffs, at any time before a sale takes place, in any proper case made by application for injunction.
27. Plaintiffs have a clear legal right to seek temporary and permanent injunctive relief as Plaintiffs reside in the Property and as Defendants are seeking, through illegal and unlawful means and without satisfying the necessary legal standing requirements to institute a foreclosure, take possession, custody, and control of the Property, ultimately remove the Plaintiffs from their home and seek a deficiency judgment against Plaintiffs.
28. Plaintiffs have no adequate remedy at law to redress the harm complained of, and the sale of the Plaintiffs’ property, under the circumstances of record, is contrary to equity and good conscience in that such sale is being instituted by parties who have no legal standing to institute or maintain the foreclosure ab initio.
29. O.G.C.A. sec. 9-11-65(b)(1) and (2) provide that a temporary restraining order may be granted without oral or written notice to the adverse party if it clearly appears from the specific facts shown by verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition, and that the applicant’s attorney certifies to the court, in writing, the efforts, if any, which have been made to give the notice and the reasons supporting the party’s claim that notice should not be required.
30. The specific facts set forth in this Verified Complaint demonstrate that unless a temporary injunction against the foreclosure sale set for Tuesday, August 5, 2008 is not granted that Plaintiffs will suffer the irreparable injury, loss, and damage of the loss of their home and eviction therefrom along with the horses which also live on the Property.
31. Under the circumstances where the foreclosure sale is set for less than five (5) calendar days (which include a Saturday and Sunday) from the date of the filing of this Verified Complaint, the irreparable loss to the Plaintiffs will result before the Defendants USB and ASC may be heard in opposition to the relief requested herein if the emergency relief requested herein is not granted immediately.
32. The requisite certification pursuant to O.G.C.A. sec. 9-11-65(b)(2) is set forth following the Verification of this Complaint by the Plaintiffs infra.
33. As Defendants USB and ASC have no legal standing to institute or maintain a foreclosure of the Property, there is no harm to said Defendants with the granting of the requested relief, and any claimed harm is substantially outweighed by the irreparable harm to the Plaintiffs if the relief requested herein is not granted.
34. The granting of the relief requested herein is in the public interest, as the consuming public, including Plaintiffs, will continue to be harmed by the illegal and unlawful conduct of the Defendants USB and ASC if the relief requested herein is not granted.
35. Under the circumstances where there is no harm to Defendants USB and ASC with the granting of the requested relief, no bond should be required as a prerequisite to the granting of the relief requested herein as there are no costs or other damages which could be contemplated on the part of Defendants USB and ASC with the granting of the requested relief for which a bond would otherwise be necessary.
WHEREFORE, Plaintiffs respectfully request that this Court immediately take jurisdiction of this matter and enter an Order granting temporary and permanent injunctive relief expressly precluding and cancelling the foreclosure sale presently scheduled for August 5, 2008 for the reasons set forth herein, and for any other and further relief which is just and proper.
36. Plaintiffs reaffirm and reallege paragraphs 1 through 22 hereinabove as if set forth more fully hereinbelow.
37. This is an action for declaratory relief which is being brought pursuant to O.C.G.A. sec. 9-4-2 and sec. 9-11-118 to declare that Defendants USB and ASC have no legal or equitable rights in the Note and Security Deed for purposes of foreclosure and that said Defendants have no legal standing to institute or maintain foreclosure on the Property.
38. O.C.G.A. sec. 9-4-2(a) provides that the superior courts shall have the power, upon appropriate pleading, to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed, and that the declaration shall have the force and effect of a final judgment.
39. O.C.G.A. sec. 9-4-2(c) provides that relief by declaratory judgment shall be available notwithstanding the fact that the complaining party has any other adequate legal or equitable remedies.
40. As set forth above, the evidence of record demonstrates that Defendant USB does not possess the requisite legal rights to foreclose due to a defective assignment of the Security Deed from the original lender (Foundation Financial) to Defendant USB in view of the admission of Foundation Financial that the Security Deed was “sold to another investor” who is unknown to Foundation Financial. Had their been a proper Assignment of the Security Deed from Foundation Financial to Defendant USB, Foundation Financial would have admitted as such in its written correspondence to the Plaintiffs.
41. As set forth above, Defendant ASC does not possess the Note, and only has, at best, servicing rights to the Note which rights have been called into question by the inconsistent statements of counsel for Defendants USB and ASC as to who the “client” is for purposes of declaring a default on the Note and instituting a foreclosure.
42. The declaration by this Court that neither Defendant USB nor Defendant ASC has any legal right and cannot satisfy the legal standing requirements to institute and maintain a foreclosure is proper subject matter for declaratory relief.
43. Georgia decisional law provides that one who is not a party to a contract whereby title to property is retained in the seller as security for the balance of the purchase money, who is not named as payee in the notes for the payments, and who has no written assignment of the notes or the contract, cannot foreclose the contract in his own name as holder and owner thereof.
44. As set forth above, Defendant USB, as the foreclosing party named in the Notice of Sale Under Power, was not a party to the original mortgage contract documents; was not named as a payee in the Note; and has failed to demonstrate any valid assignment of the Security Deed contract, and is thus legally precluded from instituting or maintaining a foreclosure.
45. As set forth above, Defendant ASC is only the servicer of the Note, and as such cannot institute or maintain a foreclosure proceeding (as it appears to have done pursuant to June 23, 2008 correspondence of its counsel, Exhibit “A” attached hereto).
WHEREFORE, Plaintiffs demand that the court adjudge:
(a) that neither Defendant USB nor Defendant ASC have legal standing or the proper legal or equitable interest in either the Note and Security Deed to institute or maintain a foreclosure; and
(b) that the Notice of Sale Under Power is legally defective and precluded from enforcement; and
(c) that the Plaintiffs recover their costs.
WHEREFORE, having set forth the above-described legally sufficient causes of actions against the Defendants USB and ASC, Plaintiffs pray for the immediate issuance of a Temporary and Permanent Injunction precluding the foreclosure sale of their property or any other disposition of the subject property; that the Court issue a declaratory judgment in accordance with the relief requested hereinabove; that the court assess Plaintiffs’ costs against Defendants USB and ASC; and for any other and further relief which is just and proper.
The undersigned Plaintiffs verify, under oath, that the foregoing factual allegations in this Verified Complaint are true and correct.
BEFORE ME, THE UNDERSIGNED AUTHORITY, personally appeared who are either (personally known by me) or (who have produced ___________________[type of identification]) and who, after being duly sworn by me, verified that the factual allegations in the foregoing Verified Complaint are true and correct and who placed their hand and signatures above.
Notary Public, State of Georgia
My commission expires:
CERTIFICATION OF COUNSEL PURSUANT TO O.C.G.A. SEC. 9-11-65(b)(2)
THE UNDERSIGNED HEREBY CERTIFIES, pursuant to the requirements of O.C.G.A. sec. 9-11-65(b)(2) that, as counsel for Plaintiffs seeking admission to this Court pro hac vice through and with local counsel, that the undersigned, prior to the filing of this Verified Complaint, gave written notice to counsel for Defendants USB and ASC, by letter dated July 17, 2008, that said parties did not own or hold the original Note or mortgage (Security Deed) and as such that the legal standing requirements to institute any action for foreclosure could not be met, which letter also included a demand that the legal action be withdrawn, and further that no response to said written notice and demand (fax receipt confirmed on July 17, 2007) has been received through the date of this Certification.
SO CERTIFIED BY W. JEFF BARNES, ESQ. on this 1st day of August, 2008.
W. Jeff Barnes, Esq.
Dated this 1st day of August, 2008.
GLOVER & DAVIS, P.A.
W. Jeff Barnes By: Peter A. Durham
(counsel to seek admission pro hac vice) (Georgia Bar No. 235542)
W. J. Barnes, P.A. P.O. Drawer 1038
1515 North Federal Highway Newnan, Georgia 30264
Suite 300 Telephone: (770) 683-6000
Boca Raton, Florida 33432 Telefax: (770) 683-6010
Telephone: (561) 864-1067
Telefax: (702) 804-8137 Attorneys for Plaintiffs
THE UNDERSIGNED HEREBY CERTIFIES that a true and correct copy of the foregoing has been forwarded, via (circle appropriately) fax and/or U.S. Mail, to Shapiro & Swertfeger LLP, Counsel for Defendants USB and ASC, 2872 Woodcock Boulevard, Duke Building, Suite 100, Atlanta, Georgia 30341 on this 1st day of August, 2008.
W. Jeff Barnes Peter A. Durham
(counsel to seek admission pro hac vice) (Georgia Bar No. 235542)
W. J. Barnes, P.A. P.O. Drawer 1038
1515 North Federal Highway, Suite 300 Newnan, Georgia 30264
Boca Raton, Florida 33432 Telephone: (770) 683-6000
Telephone: (561) 864-1067 Telefax: (770) 683-6010
Telefax: (702) 804-8137