SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA

REGINALD S. MUHAMMAD; Plaintiffs v FIRST STATE BANK; JOEL HABER, Attorney In Fact, Defendants FILE NO: __________________ CIVIL ACTION

VERIFIED EMERGENCY PETITION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION COMES NOW, Plaintiff Reginald S. Muhammad and files Verified Emergency Petition for Temporary Restraining Order and/or Preliminary Injunction pursuant to Uniform Superior Court Rules 6.7,1 and O.C.G.A. §9-1165(b) against the listed Defendants. PARTIES TO THE ACTION 1. Plaintiff Reginald S. Muhammad, at all times relevant has resided at 155 Joseph E Lowery Blvd., Atlanta, Georgia 30314, in Fulton County. 2. Defendant First State Bank, is a banking corporation organized under the laws of the State of Georgia; and at all times relevant, have been located at 4806 North Henry Blvd., Stockbridge, Georgia 30281. First State Bank can be properly served with process through their Registered Agent: David H. Gill at his office
1

U.S.C.R. Rule 6.7: ³«judge may shorten or waive the time requirement applicable to emergency motions, ...The motion shall set forth in detail the necessity for such expedited procedure.´ 1

Loan Number: information has remained the same. GA 30013 BRIEF BACKGROUND 4. Lowery property Deed was duly recorded in the Official Record of Fulton County in Deed Book 45730. 8. and with blatant disregard of Plaintiff¶s property Rights. 5. Stockbridge. using his property located at 875/877 Commodore Dr. a Banking & Investment Law Attorney and who is shown as ³Attorney in Fact´ for First State Bank.W. Page 186. Plaintiff executed a Security Deed for the property at 155 Joseph E Lowery Blvd. Defendant Joel Haber. the loan has been with GA-2007-00123. and wantonly acted in bad faith. 2007 in favor of Upward Financial. without providing Plaintiff proper Notice as required by Georgia law. Federal Law and Georgia Statutes in an attempt to perpetrate a fraud. The Defendants knowingly. 6. Page 311. to the fact that the 2 3 4 Referred to hereinafter as ³The Joseph E Lowery property´ Referred to hereinafter as ³The Commodore property´ The loan and foreclosure lists both properties 2 . in Henry County. GA3 as collateral on or around September 24. At all times since recordation of Plaintiff¶s Deed(s). Plaintiff. 7 Defendants have executed a Notice of Default and Notice of Sale under Power. 3. only a very few days ago. The Joseph E.address: 109 Magnolia Pl. 6. The Commodore property Deed is duly recorded in the Official Record of Fulton County in Deed Book 22216. and Plaintiff¶s contact Upward Financial. willingly. had offices located at 2365 Wall Street. Atlanta.4 5. was alerted by a friend. Suite 120 Conyers.. GA 30281. at all times relevant. N. and wrongfully foreclose upon subject real property. Atlanta. Georgia 303142.

2009. 16. wantonly. a copy of information concerning SB531 is attached hereto as Exhibit A 14. 3 . has been running since July 09. Defendants neglected to provide Plaintiff ³Notice of Default and Notice of Sale under Power´ prior to running the Legal Notice ads. Section 809(b): (b) ³If the consumer notifies the debt collector in writing within the 5 Daily Report is a subscriber/fee based legal news reporting agency. 11. the Security Deed(s) recorded in Deed Book 45730. fraudulently and illegally continued to pursue the Sale under Power in direct violation of the Fair Debt Collection Practices Act. 10. the Defendants began running a Legal Notice Ad. Defendants¶ attempt to foreclose upon the subject properties violates OCGA § 44-14-162(b). 13. Plaintiff discovered that the Ad in Daily Report. and Deed Book 2216. Through investigating. Section 809(b): The Fair Debt Collection Practices Act. These Defendants knowingly.G. Without contacting Plaintiff. To the best of Plaintiff¶s knowledge and belief.A. Notice requirements of O. 9. Page 186 is the most current Deed of record for the subject residential properties. § 44-14-162 were changed from 15 days to 30 days May 13. Page 311. Ad Number: 1260361. which has already run more than two of the required four weeks required by law. and from what he could learn from Fulton County.C. willingly. 12.Defendants were running a Legal Notice Ad of foreclosure in The Daily Report5 for both of Plaintiff¶s properties. 15. Defendants¶ actions violate Plaintiff¶s Rights to make requests under The Fair Debt Collection Practices Act. 2008 When Governor Perdue signed into law Senate Bill 531.

see Exhibit A 4 . OCGA § 44-14-162(b) 6: ³The security instrument or assignment thereof vesting the secured creditor with title to the security instrument shall be filed prior to the time of sale in the office of the clerk of the superior court of the county in which the real property is located. OCGA § 1. 5/13/2008. There has been no further mortgage. or any portion thereof.´ 20. or any disputed portion thereof. To date. 19. is mailed to the consumer by the debt collector.thirty-day period described in subsection (a) that the debt. security deed. Plaintiff has never been supplied with proper evidence that Upward Financial is no longer the legal holder of the mortgage(s). 6 OCGA § 44-14-162(b). eff. 22. 21. assignment.´ 17. 18. or that the consumer requests the name and address of the original creditor.amended by 2008 Ga. nothing has been presented to Plaintiff to indicate that Upward Financial is legally no longer the loan holder. willingly. To date. is disputed. lien contract. Defendants have knowingly. transfer or conveyance recorded for the subject properties. There is no Note on the Official Record to secure the above referenced Security Deed(s). the debt collector shall cease collection of the debt. until the debt collector obtains verification of the debt or any copy of a judgment. or name and address of the original creditor. Laws 576. and wantonly failed to adhere to the mandates of Federal and state law which would have alerted Plaintiff to properly request First State Bank to produce the promissory note. Defendants¶ attempt to foreclose upon the subject residential property violates OCGA § 44-14-162(b). or the name and address of the original creditor. and a copy of such verification or judgment.

121) (558 SE2d 440) (2001). ³such harm is deemed to be irreparable to the unique character of the property interest. Black v. but would also be a direct violation of The Due Process Clause.. 264 Ga. The Focus Court went on to explain that foreclosure is one such instance which ³injunction is appropriate´ because ³when an interest in land is threatened with harm´.e.. money damages are not adequate compensation to protect the interest harmed. would not only expose Plaintiff to potentially ruinous financial liability. 634 (2) (238 SE2d 420) (1977) ("the law regards as sufficiently unique that equity will enforce a contract for [land] sale or lease"). when an interest in land is 5 . 871 (455 SE2d 581) (1995) (injunction to protect an easement).. Cagle. v.23. 239 Ga. under Georgia law. 669. and numerous Constitutional guarantees concerning property. ³A motion for interlocutory injunction or a TRO is an extraordinary motion. Therefore. American Vending Co. Muhammad incorporates fully and by this specific reference the statements in paragraphs 1 through 22 of this Petition/Complaint as if stated fully herein. Inc. Inc.´ See the following: ³(a) Land. App. unlike other motions. because it seeks to preserve the status quo until a full hearing can be held to avoid irreparable harm. i. Partridge Greene. MEMORANDUM OF LAW IN SUPPORT OF TRO and/or PRELIMINARY INJUNCTION Plaintiff Mr. 632. 703. Allowing the Sale under Power to be completed. 141 Ga. 705-706 (1) (82 SE 21) (1914) (specific performance of contract to sell land). Patel. Corbett. 672 (1) (362 SE2d 217) (1987) (injunction to stop foreclosure). 257 Ga.´ Focus Entertainment International. (253 Ga. is deemed sufficiently unique that it is entitled to equitable remedies to protect such interest in land. Clark v. Benton v. Rife v. which is time sensitive.

Further. 392. Americus Constr. Plaintiff¶s Petition is Verified. until the debt collector obtains verification of the debt or any copy of a judgment. Section 809(b) 6 . In times such as now. Co. §9-11-65 allows the Court to grant such Orders without notice to opposition in certain circumstances.e. 133 Ga. 868-869 (1) (510 SE2d 550) (1998) (property interests of grantor and others in restrictive covenants for their benefit).. 866. legally Noticed before foreclosure actions began. 235 Ga. Plaintiff will be irreparably harmed. is disputed. Co.. see also Roth v. or that the consumer requests the name and address of the original creditor. Plaintiff been denied his Rights to notify ³the debt collector in writing within the thirty-day period described in subsection (a) that the debt.threatened with harm. there has to be some evidence presented to you before you start paying them instead of the entity your loan originated with.A. or any disputed portion thereof.G. equitable injunctive relief is appropriate. is mailed to the consumer by the debt collector. R. because such harm is deemed to be irreparable to the unique character of the property interest. App. he had no knowledge of the Legal Notice Ads being run. Plaintiff has further shown the Court that until only a very few short days ago..´7 O. or the name and address of the original creditor. that had he been properly. and a copy of such verification or judgment. 7 Fair Debt Collection Practices Act. money damages are not adequate compensation to protect the interest harmed. or any portion thereof.C. Connor. v. or name and address of the original creditor. See generally Central of Ga. with mortgage fraud at the highest level in history. the debt collector shall cease collection of the debt. i. he would have taken the proper steps to prevent such action. Plaintiff has shown the court. 398 (65 SE 855) (1909) (irreparable injury defined to enjoin a nuisance).´ Plaintiff has made a showing that without an Emergency Order granting a Temporary Restraining Order or Preliminary Injunction.

if any. because Defendants would be required to cease all foreclosure proceedings until such time as the debt was validated. which have been made to give the notice and the reasons supporting the party's claim that notice should not be required. The Defendants on the other hand. the efforts. loss. Therefore. when granted without notice.G. ³A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if: (1) It clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury. application to dissolve or modify.´ Further. Muhammad incorporates fully and by this specific reference the statements in paragraphs 1 through 22 and all paragraphs contained within Plaintiff¶s Memorandum of Law as if stated fully herein. in writing. Muhammad¶s rights 7 . and a healthy lack of respect for the laws of this state. duration.A. Muhammad is ignorant of the true identity of the actual holder in due course with First State Bank. and Plaintiff Mr.C. would have approached the Defendants in the proper manner as required by law in a good faith attempt to remedy what could result in the loss of Plaintiff¶s property through no fault of his own. Plaintiff in this matter. §9-11-65 (b) Temporary restraining order. and (2) « certifies to the court. refused to adhere to the mandatory state and federal laws that would have allowed Plaintiff to make requests for documented evidence of their claims. Plaintiff has shown that Defendants violated Plaintiff Mr. CONCLUSION AND PRAYER FOR RELIEF Plaintiff Mr. or damage will result to the applicant before the adverse party or his attorney can be heard in opposition.O. hearing. allowing the Sale under Power to be completed would expose Plaintiff to potentially ruinous financial liability in the event that the actual holder in due course should one day make a claim upon the Note. blatantly showing bad faith.

Muhammad¶s properties. GRANT Plaintiff Mr. Georgia 30314 (404) 641-6142 8 . (f) (g) Compel compliance with OCGA § 44-14-162. 2009 By: ____________________________ REGINALD S. Muhammad¶s rights under OCGA § 44-14-162. Muhammad all court costs and court related fees. (b) thereby entitling Mr..(b). Plaintiff has shown that Defendants violated Plaintiff Mr. lien or any other instrument that proves any claims by any alleged holders in due course. (d) COMPEL validation of the alleged Debt (e) COMPEL verification of the loan number and the use of the correct loan number in any proceeding henceforth. (c) COMPEL proof of any assignments. Respectfully submitted this 29th day of July. MUHAMMAD. Muhammad to all appropriate relief provided for by statute. Muhammad any and all other and/or further relief allowed by law and/or which this Court deems just and proper.under the Fair Debt Collection Practices Act thereby entitling Plaintiff Mr. (b) COMPEL Production of the Original Promissory Note(s). NW Atlanta. Muhammad regrets the emergency nature of this petition and prays the Courts GRANT the following relief: (a) GRANT an Emergency Temporary Restraining Order and/or Preliminary Injunction to prevent the foreclosure of Plaintiff Mr. Muhammad to all appropriate relief provided for by statute. (h) GRANT Plaintiff Mr. Plaintiff Mr. Pro Se 155 Joseph E Lowery Blvd.

VERIFICATION I. MUHAMMAD Subscribed and sworn to before me. therefore since this is an Emergency Petition further notice should not be required. 2009 __________________________ REGINALD S. under penalty of perjury. or damage will result to the applicant before the adverse party or his attorney can be heard in opposition. This 28th day of July. and loss. this 28th day of July. Seal ____________________________ Janet D. deposes and says that I am over the age of eighteen (18) and mentally competent to testify in this matter. having been duly sworn. My person and my property are in danger of immediate and irreparable injury. I have read the foregoing pleading. Plaintiff Reginald S. Notary Public My Commission Expires: January 05. 2010 9 . the facts stated therein are from first hand knowledge and are true and correct to the best of my knowledge and belief. 2009. that the facts set forth regarding all matters stated in the above paragraphs are true and correct. McDonald. and I hereby Certify. Muhammad.

Sign up to vote on this title
UsefulNot useful