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FILED IN CLERK'SOFFlCE

U.S-D.C. Rome
JAN 28 2014
UNITEDSTATESDISTRICTCOURT
JAMES N HATTEN, Clerk
FORTHENORTHERNDISTRICTOFGEORGfX: DeputyCierk
R.OMEDIVISION
JANETC.NEALandROBERT )
CMLACTIONFILE
L.NEAL,SR., )
NO.:
)
Petitioners, )
4: 1 - CV 18
v. )
)
"TRlBECALENDINGCORP.; )
\(FRANKLIN MORTGAGEASSET , )
TRUST2009-A"FRANKLINCREDIT )
MANAGEMENTCORP);MORTGAGE )
ELECTRONICREGISTRATION )
SYS=rEMS, FARGO )
BANK,N.A.;and"VNTTRUSTSERIES )
2010-2INTRUSTFORTHE )
REGISTEREDHOLDERSOFVNT )
TRUSTSERIES20122,andJOHNDOES )
1-500, UNKNOWN CERTIFICATEHOLDERS )
OFVNTTRUSTSERIES2012-2, )
Respondents. )
)
VERIFIEDPETITIONFOBDECLARATORYREI/lErTOQUIETTITLE
*3-60ET.
COMENOWthePetitioners,JanetC.NealandRobertL.NeaLSr.and .
Petitionthis.HonorableCourttoQuietTitletoPetitionerspropertyandto Declare
thatRespondents,andeachofthem,haveno interestin and toPetitionersPl'Qperty,
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and as grounds therefore would state as follows:
IDENTITY OF PARTIES AND LAND
L
Petitioners are citizens ofthe State ofGeorgia, County of Bartow, and
purchased residential property in Bartow County, Georgia, known and referred to
as 906 Jones Mill Georgia 30120 and more particularly
described as follows:
TRACTl
All that tract or parcel of land lying and being in Land Lot 27 of the 4th
District and 3 rd Section of Bartow County. Georgia, and being more particularly
described as follows:
BEGINNING at the point which marks the intersection ofthe western right-of-
way ofJones Mill Road and the northern right of way of Pine Vista Circle and
from said point run in a generally northerly direction North 03 degrees 42 minutes
5S seconds East and following the arc of the curvature of said Jones Mill Road
right ofwayan arc distance of46.12 feet to an iron pin which marks the true point
ofbeginning. From said true point of beginning run North 29 degrees 38 minutes
18 seconds West a distance of 177.02 feet to an iron pin; thence run North 20
degrees 28 minutes 42 seconds West a distance of 170.41 feet; thence run South 4
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degrees 04 minutes 21 seconds West a distance of302.33 feet to an iron pin and
other true point of beginning. Said tract containing 0.647 acres, more or less.
TRACT 2
All that tract or parcel of land lying and being on the west side of Jones Mill Road
in Lot of Land Number 237 and 238 ofthe 4th District of the 3
m
section ofBartow
County, Georgia, more particularly described as being subdivision lot number 6 of
the Thomas H. Bennett a plat of which is recorded in said deed
records in Plat Book 4, Page 2, to which reference is made for a more definite
description, said lot beginning at the point where the west side ofJones Mill Road
intersects the north right of way line of the Georgia Power Transmission right of
way, and running thence in a northerly direction 200 teet, more or less. along said
public road to the property of Francis 1-l (Pete) McDaniel; thence North 84 degrees
32 minutes West along said McDaniel property a distance of 209 feet, more or less,
to the southwest comer of said McDaniel property; thence South 5 degrees 28
minutes West 303 feet, more or less, to the north right of way line of said Georgia
Power Company transmission line easement; thence North 70 degrees 13 minutes
East along said transmission line right of way 248 feet, more or less. to the
beginning point.
Being the fee simple property which, by general warranty deed dated March 23,
1998. and recorded in the office of the registrar of deeds ofthe County of Bartow,
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County, in Book 1103, Page 229, was granted and conveyed by Janet C. Neal unto
Janet C. Neal and Robert L. Neal, Sr. Hereinafter, this address and legal
description as well as all improvements thereon shall be known and referred to as
Petitioner's Property.
2.
Respondent Tribeca Lending Corp. is a New York corporation and a citizen
ofNew York, doing business at 101 Hudson Street, 25
th
Floor, Jersey City, New
Jersey 07302. This company is currently active according to the New York
Secretary of State's Office. Said Respondent was the originating lender in regard to
the subject transaction.
3.
Respondent Franklin Credit Management Corp is a New York corporation
and citizen of the State ofNew York, doing business at 101 Hudson Street, Jersey
City, New Jersey 07302, engaged in servicing and resolution of performing and
nonperforming residential mortgage loans and is servicer for the subject loan for
Respondent Wells Fargo Bank, N .A.
4.
Respondent Wells Fargo Bank, N.A. is a national banking association and a
citizen of the State of California doing business at 420 Montgomery Street, San
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Francisco. California 94163 and is listed as certificate trustee in trust for the
registered holders ofVNT Trust Series 2010-2.
5.
Respondent VNT Trust Series 2010-2 is a securitized trust fonned January
6.2010 and is registered in and a citizen ofthe State ofDelaware, doing business
at 919 North Market Street, Suite 1600, Wilmington. Delaware 19801.
6.
Respondents John Does 1-500 are the certificate holders of certificates
issued by the VNT Trust, Series 2010-2. Respondent Wells Fargo Bank. N.A. is
Listed as the agent for trustee Wells Fargo Delaware Trust Company, N.A at 919
North Market Street, Suite 1600, Wilmington. Delaware 19801.
JURISDICTION AND VENUE
7.
This Court has jurisdiction over this matter pursuant to 28 U.S.C. 1332 for
reasons set forth below.
8.
Petitioners property is located in Bartow County, Georgia and the territorial
boundaries ofthis District Court embrace this county. Petitioners are citizens ofthe
State ofGeorgia.
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9.
Respondentsarecitizensof theStatesofNewYork,Californiaand
Delaware.Thereis completediversityof citizenshipbetweenPetitionersand
Respondents.
10.
PetitionersseektoquiettitletoPetitioner'spropertyfor$150,000.00.The
amountincontroversyexceeds$75,000.00.
11.
Thisis anin rem proceedingpursuanttoO.C.G.A. 23-3-60et. seq.
. directedagainstPetitioner'spropertysituatedwithintheboundariesof Bartow
County,Georgia.Byvirtueof aNoteandSecurityDeeddatedJune 15,2007,
Petitionersacquiredanequitableinterestinthetitle.Petitionerscanliveonthis
landandonlypetitionershavetherighttosellthishome.
12.
RespondentshaverecordedaninterestinPetitioner'sPropertyorclaim
someinterestin Petitioner'sProperty.
13.
OnJune 15,2007Petitionersagreedtoborrow$150,000.00fromTribeca
LendingCorp.,securedbyPetitioner'sProperty.Twoinstrumentsweresignedby
Petitionersonthisdate,theAdjustableRateNoteandtheSecurityDeed. Since
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Petitionersarethesignatories,theAdjustableRateNoteandSecurityDeedare
bothbearerinstruments.
14.
Paragraph1oftheAdjustableRateNotestatesinpertinentpart: 'I
understandthattheLendermaytransferthisNote.Lenderoranyonewhotakesthis
Notebytransferandwho is entitled to receive payments under this Note is called
the "Note Holder".
15.
D.C.C. 3-110(c)stipulateshow anegotiableinstrumentmayidentifythe
persontowhoitismadepayable. Inpertinentpart,thisstatutestates:
(c)Apersontowhomaninstrumentispayablemaybeidentifiedin any way,
includingbyname,identifyingnumber,officeoraccountnumber...."
16.
Inthevernacularof theDniformCommercialCode,Petitioner'snotehas
beenmadepayableto theperson entitled to receive Petitioner'spayments.
17.
Paragraph7(c)of Petitioner'sNotestatesinpertinentpart:
(C)NoticeofDefault
"If 1amindefault,theNote Holder may send me a written notice tellingme
thatif 1donotpaytheoverdueamountbyacertaindate, the Note Holder may
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require me to pay immediately the full amount ofPrincipal which has not been
paid and all the interest that lowe on that amount ....."
18.
The substantive law governing enforcement of a negotiable instrument is set
forth in U.C.S. 3-301 and states in pertinent part:
"Person entitled to enforce an instrument means (i) the holder of the
instrument, (ii) a nonholder in possession ofthe instrument who has the rights of a
holder...."
19.
Paragraph I of Petitioner's Note declares ''who takes this Note by transfer
and who is entitled to receive payments under this Note is called the Note Holder.
By stipulating that the Note Holder is the person entitled to Plaintiffs payment,
this paragraph rejects part (i) ofU.C.C. 3-301 and adopts instead part (ii), a
nonholder who has the rights ofa holder.
20.
Paragraph 7 (C) stipulates that only the Note Holder can send out a Notice of
Default. Paragraphs 1 and 7 (C) of Petitioners Note reserve enforcement
exclusively to the person [or persons] entitled to receive Petitioner's payment. This
person is the Note Holder. These terms are embedded as indelibly into the
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foundation document of this transaction as are the names of the parties and the
amount being loaned.
21.
The unambiguous meaning of Paragraphs 1 and 7 (C) of Petitioner's Note
state that only the party entitled to Petitioners payments can been the Note Holder
and successor in interest to the Lender. From this factually incontrovertible
premise, this legal corollary is self-evident. Since the Note Holder is the only party
that can initiate a foreclosure proceeding, this act of enforcement can only be
performed by the person [or persons] that are entitled to receive Petitioners
payments.
22.
The fIrst paragraph ofPetitioners Note names the person entitled to
payments as the beneficiary. This same person is authorized to exercise the power
to sell clause in a Security Deed in Georgia. The only person who can exercise the
power to sell clause in Georgia's non-judicial foreclosure statute is the party
entitled to the borrower's payments.
23.
For reason which will become apparent after examining documents from the
Securities and Exchange Commission search engine, the person entitled to enforce
Petitioner's Note within the meaning of V.C.C. 3-301 (ii) is in fact a group of
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The parties entitled to Petitioner's payments are cmrent holders of
mortgage-backed certificates owning a pro rata sbate ofPetitioner's Note. Self-
authenticating documents filed with the Secwities and Exchange Commission
declare this group to be 1he owners ofthese Notes for all purposes whatsoever.
24.
Mortgage Electronic Registration Systems (MERS) is descnOed as a
nominee for Tn"beca Lending Cotp. and its successors in interest. Although the
SecurityDeed establishes MERS as 1he beneficiary, by its own self-imposed
admission, MERS is not making any contribution worthy ofthis designation.
Paragraph 2 ofMERS's Terms and Condittons in pertinent part:" 2. The'
Member, at its own expense, shall promptly, or as soon as cause
MERS to appear in the appropriate public records as 1he mortgagee ofrecord with
respect to each mortgage loan that the Member registers on the MERS System.
MERS shall serve as mortgagee ofrecord with respect to all such mortgage loans
solelylISa capacity, for the beneficial owner or
owrren IIfereoIfronrtime to time. MERS shall have no rights whatsoever to any
...on account ofsuch mortgage loans, to any servicing rights related
to such loans, or to any mortgaged properties securing such mortgage
loans. MERSagrees not to assert any rights (other than rights specified in the
Goveming.Documents) withrespect to such mortgage loans or mortgaged
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properties.Referenceshereinto"mortgage(s)"and"mortgagee f r o ~ shall
includedeed(s)oftrustandbeneficiaryunderadeedoftrustandanyotherformof
securityinstrumentunderapplicablestatelaw.
MER.Sisnotavehicleforcreatingandtransferringbeneficialinterests.
Paragraph6.MER.SandtheMemberagreethat:(i)theMERSSystemisnota
vehicleforcreatingortransferringbeneficialinterestsinmortgageloans, (ii)
transfersofservicinginterestsreflectedontheMERSSystemaresubjecttothe
consentofthebeneficialownerofthemortgageloans,and(iii)membeIShipin
"
MERSoruseoftheMERSSystemshallnotmodifyorsupersedeanyagreement
betweenoramongtheMembershavinginterestsinmortgageloansregisteredQil
theMERSSystem.
25.
MBRShasruledoutanyentitlementtoPetitionerspayments.Thisalso
meansthatMERScannotqualifyastheNoteHolderunderparagraph1of
Petitioner'sNote.
26.
TheinabilityofMERStoholdanyinterestgreaterthanjustlegaltitle,which
isnoownershipinterestwhatsoever,isalsoaffirmedinits TermsandConditions.
Seeparagraph6ofMERSTermsandConditions.
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27.
Under this Security Deed, the powers ofthe Lender are pervasive. This is
declared in the Transfer ofRights in Property clause.
28.
In pertinent part, the Transfer ofRights paragraph secures to Lender:
(i) The repayment of the Loan and (ii) performance ofBorrower's covenants
under this security instrument. Under Acceleration, Remedies, only the Lender at
its option, can invoke the power of sale and pursue foreclosure. No other party but
the Lender or their successor in interest is allowed to exercise this authority.
29.
Under well settled property law concepts, only a party with an ownership
interest in the note can enforce the security deed. The Restatement (Third) of
Property, Mortgages 5-4(c) states, "a mortgage may be enforced only by, or on
behalfot: a person who is entitled to enforce the obligation the mortgage secures."
A mortgage servicer and MERS have no ownership interest in the note.
30.
After Petitioners loan was made, this Note and Security Deed was subjected
to a series of transfers and a succession of new beneficial owners. The purpose
served by these transfers was to convert these debt instruments into a debt
commodity suitable for serving as collateral for newly issued mortgage-backed
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securities. Petitioner's Note and Security Deed became part of a pool ofmortgage
for a secured transaction listed on the Securities and Exchange Commission's
EDGAR search engine.
3l.
After these sales, Petitioner's Security Deed was bundled and sold to a trust
called VNT Trust Series 2010-2 [hereinafter referred to as the Trust]. The transfer
ofsecurity deeds and mortgages to this Trust is documented in the Trust
Agreement. A special purpose vehicle used by VNT Trust for bundling and
transferring mortgages is the Depositor of loans.
32.
After assigning all of its right, title and interest to Petitioner's Note and
Security Deed to this Trust, Tribeca Lending Corp. could no longer claim any
entitlement to Petitioner's payments. When Tnooca Lending Corp. lost its
entitlement to these payments, it relinquished as well its right to be called the Note
Holder on Petitioners Note and to be called the Lender on Petitioner's Security
Deed.
33.
This Trust acts as an apparatus for converting mortgages into a debt
commodity. Each mortgage has now been transferred to VNT Trust Series 2010-2,
Mortgage-backed securities are issued to this Trust and bonded to a pool of
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mortgages.Whenthisiscomplete,mortgage-backedsecuritiesand theirassigned
poolof instrumentsbecomeinseparable.Thistransformationif documentedinthe
TrustAgreement.
34.
ThisTrustisauthorizedtoissuepass-through securities pursuantto26
U.S.C. 671to670fortheInternalRevenueServicegrantortrustrules.
35.
InaPersons Deemed Owners c l u s e ~ the Certificateholdersorinvestors,
ownthebeneficialinterestintheseinstruments.The Persons Deemed Owners
clauseappearsineverypass-through securities offering.Thispass-throughfeature
enablesthetrusttobetax exempt,sinceitownsnothing.
36.
StatementsmadeinafilingfortheSecuritiesandExchangeCommissionare
subjecttotheheightenedstandardimposedbythe Sarbanes-OxleyActof2002.
This Actmakessignatoriesaccountablefortheaccuracyofallinformation
disclosedandsubjecttopenaltiesrangingfrombeingdelistingtomultimillion
dollarfinesandimprisonment.ThisstatementinthePersons Deemed Owners
clausealsorunsagainsttheinterestofthemaker.Statementsrunningagainstthe
interestofthemakerareextremelydifficulttoovercome.Theguiltypleaaspectof
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this statement, coupled with its presence in a filing before the Securities and
Exchange Commission, makes this statement worth of belief.
37.
This Persons Deemed Owners clause closes the loop opened in the first
paragraph of Petitioner's Note by identifying the persons entitled to receive
Plaintiff's payments. Holders of mortgage-backed certificates owning a fractional
share of Petitioner's note are entitled to these payments. Under grantor trust rules
of the IRS for pass-through securities, money generated by assets held in this Trust
estate can only be paid to these owners; and this arrangement cannot be altered.
38.
Because oftheir fractional ownership interests in Petitioner's Note and
Security Deed, privity of contract is established been these note holders i.e.
investors and Petitioner. This new alignment is permanent. It cannot be disturbed.
39.
Certificate holders, i.e. investors, hold the only fmandal stake in Petitioner's
Note. They are the only parties benefitted or injured by the outcome.
40.
Since holders of mortgage-backed securities are permanently entitled to
Plaintiff's payments, these parties are also identified under the Uniform
Commercial Code as the Note Holder. Pursuant to U.C.C. 3-110 (c), Petitioner's
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Note is payable to these investors and no one else. In accord with U.C.C. 3-301
(ii), only investors can initiate an enforcement action.
41.
Paragraph 22 ofPetitioner's Security Deed states that the Lender, at its
option may accelerate payment. Current holders ofmortgage-backed securities
owning a pro rata share ofPetitioner's Note and Security Deed are exclusively
entitled to enforce this instrument. These investors are the Lender's successor in
interest.
42.
Under the terms ofthe Note and Security Deed, the only parties entitled to
issue a Notice of Default and require accelerated payments are holders of
mortgage-backed certificates owning fractional shares ofPetitioner's Note,
colJtctively exceeding a majority ofthe ownership interests outstanding.
43_
Holders of mortgage-backed certificates owning pro rata shares of
Petitioner's loan are not disclosed at the Bartow County Recorder's Office. There
is no document on file at the Recorder's Office attesting to the fact that these
beneficial owners authorized anyone to act on their behalf. The Lender's true
successor in interest and the real party in interest at this time, has been excluded
from the one place where all ownership interests must necessarily be reflected
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44.
Mortgagebackedcertificateswillnotbeissuedinthenameofeachinvestor.
Instead,CertificatesaresenttoaDepository Trust. DepositoryTrustprovides
centralizedadministrativeservicesforfundingsourcesandtheirrecipients. Its
missionis torouteandconnectasourceoffundstoeachrecipient.Depository
TrustalsohasapseudonymcalledCede&Co.
45.
Everymortgage-backedcertificatewillreflectthe pseudonymasownerof
recordinsteadoftheseinvestors.DepositoryTrustisnojustthepassiverecipient
of mortgage-backedsecurities.DepositoryTrustis insertedbetweentheTrustee
Bankandtheinvestors.It actsastheinvestors'authorizedrepresentative,
empoweredtospeakonbehalfof allCertificateholders.DepositoryTrustcanact
astheauthorizedrepresentativeforinvestors.
46.
Therightsof investorswhichcanbeexercisedarerestrictedtojusttherules
andagreementsofDepositoryTrust.
47.
Investornamesarenotonownershiprecords.Investorsaresubordinatedtoa
companythatcanbecountedupontobehaveinasubmissiveandaccommodating
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manner. They have no right to communicate with anyone but Depository Trust,
and then they may discuss rules relating to Depository Trust. Investors are
systematically and methodically ostracized from playing any role whatsoever in
mortgage backed transactions. Investors are not even allowed to discover what is
taking place. There is no functioning lender.
48.
The Trust Agreement provides that the Trustee is to protect present and
future Certificate-holders welfare. A framework has been established blocking all
access and communication lines between investors and the Indenture Trustee. The
legal principal is that specific contract terms always trump general contract terms.
The following specific terms overrule these ambiguous and general terms of
protection.
49.
The Trustee has blanket immunity from all risk and no accountability for
protecting the interest ofCertificateholders.
50.
The Trustee will incur no liability or obligation toward any investor.
5!.
Granting the Trustee Bank immunity from risk of loss and rendering them
harmless from incurring any liability, obligation or duty toward an investor
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underminesanypretenseof anagencyorfiduciaryrelationship. Theagentmust
takeresponsibilityfortheprincipal'swelfare,particularlywhenthisprincipalhas
beenrendereddefenselessbybarrierserectedaroundthem. Equallyasimportant,
nosuchrelationshipis establishedatthelocalrecorder'sofficewithinvestors.
52.
OnJune24,2010TribecaLendingCorporationassigneditsinterestto
FranklinMortgageAssetTrust2009-A,andreferencingtheMERSdocument
securitydeed. OnJune28,2012,FranklinAssetTrust2009-Aassignedits interest
toWellsFargoBank,N.A.asCertificateTrusteenotinitsindividualcapacitybut
solelyasCertificateTrusteeinTrustforRegisteredHoldersof VNTTrustSeries
2010-2,alsoreferencingthesecuritydeedwhereMERSwaslistedasmortgagee.
53.
Thesignersof theseAssignments,M. ArndtandGlennMurphy,
respectively,areactingasVicePresidentandSeniorVicePresident.These
signatoriesareMERSCertifyingOfficers.M. Arndtand GlennMurphyarealso
full timeemployeesandofficersof themortgageservicersservicingthisloan.
ThesemortgageservicersappointedthisMERSCertifyingOfficertothisposition
andaretotallyresponsibleforallactswhichtheyperform.
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54.
ThestandardResolutionAppointinga MERSCertifyingOfficergivesthem
authorityto"assignthelienofanymortgageloannamingMERSasthe mortgagee,
if themortgageloanif themortgageloanis registeredontheMERSsystem. M.
ArdntandGlennMurphyhaveexercisedthisauthorityinfavorof Franklin
MortgageAssetTrustandWellsFargoBank,N.A. asCertificateTrusteenotinits
individualcapacitybutsolelyascertificatetrusteeintrustforregisteredholdersof
VNTTrustSeries2010-2.
55.
Assigningthefullbeneficialinterestof asecurityinstrumentisnota
servicingobligation.Thiscanonlybedonebyapartyholdingthefull beneficial
interest,whichcanonlybethecertificateholders.Neitherthemortgageservicers
norMERSholdsanyownershipinterestinPetitioner'sloan. MortgageServicers
cannotperformactsreservedtoowners.
56.
Thetruesuccessorsininteresttothe Lenderareinvestorswhoseauthority
hasbeensocircumscribedandmarginalizedtheydonotevenhavetherightto
discoverwhatactionsaretakenconcerningloanswhichtheyown.
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57.
IfamortgageservicerweretofirstconsultwiththeLender'strue successors
ininterest,consistingof enoughinvestorstocollectivelyownmorethan50%of
thedebt,theywouldhavetomakehundredsof telephonecallsandthentheywould
betalkingtopeoplewithlittleknowledgeof thisbusiness. Thetaskof making
hundredsof telephonecallsisnotjustbizarre,itwouldbeunthinkable.
58.
CallingDepositoryTrust,whichistheownerofrecordforallissued
securities,wouldnotsatisfythisapprovalrequirement.DepositoryTrustisnot
listedinthe localrecorder'soffice.It holdsnorecordedownershipinterestinany
of thesemortgages. Secondly,DepositoryTrusthasnothingto.gainorlosefrom
theoutcomeandnothinginvested.
59.
MERSCertifyingOfficersandpersonsigningonbehalfofmortgage
servicersgettheirinstructions fromthemortgageservicersthatwritetheir
paycheck,andtheladderofauthoritystopsthere. Allof thedecisionsaremade
withoutconsultingtheLender'ssuccessor,thecertificateholders, foronevery
goodreason. Thereisno functioninglender.DecisionsmadebyCertifying
Officersareallnullandvoidforlackofauthority.
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60.
Pursuant to D.C.C. 3-308 (a), Petitioners challenge the authenticity and
legitimacy of the signatories of the Assignments of Mortgage and the authenticity
and legitimacy of them to effect any change or transfer ofthe beneficial ownership
ofPetitioner's security deed.
61.
The Statute of Frauds invalidate these Assignment ofMortgage (Security
Deed). The Statute of Frauds requires (l) a writing relinquishing the last recorded
owner's interest in the security instrument; and (2) this writing must be signed by
an authorized officer of the owner. When formalities for the statute of frauds are
followed, the new owner acquires the original lender's contractual relationship
with the borrower. This is a borrower approved interest in land. Foreclosure
statutes require the acquisition of the borrower approved interest in land as a pre-
requisite for asserting the statutory power of sale. Ifthis borrower approved
interest in land is not acquired, foreclosure cannot be pursued.
62.
Respondents never acquired the borrower's approved interest in land,
because the formalities ofthe statute of frauds were never followed. There is not
even a signature on the Security Deed confirming a relationship between the
original lender and Respondents. As a result, Respondents have not acquired the
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original lender' s contractual relationship with the borrower and the borrower
approved interest in land. Respondents cannot convey an interest that they never
acquired.
63.
U.C.C. 3-203 addresses the transfer of a bearer instrument by a person other
than its issuer for the purpose of giving another person the right to enforce its
terms. This statute is relevant because Petitioner's Note and Security Deed are
bearer instruments. Every assignment is a prelude to enforcement.
64.
U.C.C. 3-203 (b) dictates what must take place when a bearer instrument is
transferred for the purpose of enforcement and states in relevant part:
(b) Transfer of an instrument, whether or not the transfer is a negotiation,
vests in the transferee any right of the transferor to enforce the instrument,
including any right as a holder in due course.
65.
Pursuant to paragraph (b) ofU.C.C.3-203, ownership rights in land are also
subject to principals of property law independent of Article 3 of the Uniform
Commercial Code. Because of special safeguards in the form of recording statutes,
the owner of an interest in land must prove rightful possession. This means that an
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assignor must prove that their prior holder was endowed with the full beneficial
interest. Official comment 2 for U.C.S.3-203 (b) explains how this works.
"Because the transferee's rights are derivative ofthe transferor's right's those
rights must be proved ... The instrument, by its terms, is not payable to the
transferee and the transferee must account for possession ofthe unendorsed
instrument by proving the transaction through which the transferee acquired it. "
(a) In an action with respect to an instrument, the authenticity of, and authority
to make, each signature on the instrument is admitted unless specifically denied in
the pleadings. Ifthe validity ofa signature is denied in the pleadings, the burden of
establishing validity is on the person claiming validity, but the signature is
presumed to be authentic and authorized unless the action is to enforce the liability
of the purported signer and the signer is dead or incompetent at the time of trial of
the issue ofvalidity of the signature. Ifan action to enforce the instrument is
brought against a peson as the undisclosed principal ofa person who signed the
instrument as a party to the instrument, the plaintiff has the burden of establishing
that the defendant is liable on the instrument as a represented person under
subdivision (a) of Section 3402.
(b) Ifthe validity ofsignatures is admitted or proved and there is compliance
with subdivision (a), a plaintiff producing the instrument is entitled to payment if
the plaintiff producing the instrument is entitled to payment ifthe plaintiff proves
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entitlement to enforce the instrument under Section 3301, unless the defendant
proves a defense or claim in recoupment. If a defense or claim in recoupment is
proved, the right to payment ofthe plaintiff is subject to the defense or claim,
except to the extent the plaintiff proves that the plaintiff has rights of a holder in
due course which are not subject to the defense or claim.
66.
Restatement (Third) of Property, Mortgages 5-4 (c) "a mortgage may be
enforced only by, or on behalfof, a person who is entitled to enforce the obligation
the mortgage secures. The Restatement is considered authoritative because it is
compiled by experts. Cases frequently cite restatement provisions as authority to
support their rulings.
67.
By stipulating for an unendorsed instrument, a seller must prove the
transaction through which it was acquired, this Comment is specifically referring
to the contractual relationship with the borrower and the borrower approved
interest in land is bundled and inextricably intertwined with that contractual
relationship. This comment is also referencing proof that the original holder of this
contractual relationship has relinquished this contractual interest in the seller's
favor. These terms are all direct references to the statute of frauds.
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68.
V.C.C. 3-203 (d) sets forth the rule of law that if anything less than the
entire beneficial interest is conveyed; the transferee can receive no greater interest
than that which was held by the transferor. This rule of law applies to the
assignments referenced in this Petition. The true holder of this ownership interest
in land cannot be ascertained from terms in this assignment. If the holder of a
beneficial interest cannot be established, the interest being conveyed is also
illusory and inadequate for enforcement.
69.
In addition Respondents are barred by their membership rules in MERS
from acquiring any beneficial interest in its own name for a property posted on the
MERS Registry.
70.
Respondents cannot prove that they hold rightful possession of the full
beneficial interest in Petitioner's instruments. Respondents cannot even prove that
they hold any beneficial interest whatsoever in Petitioner's Note and Security
Deed. Three problems are presented, and each can be independently fatal. (1) The
full beneficial interest test imposed by V.C.C. 3-203 (b) and (d). (2) Its failure to
follow formalities imposed by the statute of frauds subjects it to the deterrent in
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this lawandrendersthetransferinvalid.(3)Ithasnotspecifiedthesourceof
authoritydirectingthemtotakethisaction.
FIRSTQUIETTITLECLAIM
71.
PetitionerschallengetheinterestheldbyRespondentandPetitioners
maintainthattheinterestof thesepartieslacksauthenticityinessence.
72.
ThetruebeneficialownersofPetitioner'sPropertyareinvestors,each
holdingaproportionalandtypicallyminisculeinterestinPetitioner'sNoteand
SecurityDeed.Theonlypartieswithsomethingtogainorlosefromtheoutcome
ofPetitioner'sloanarethoseinvestors.Investorsareexclusivelyentitledto
Petitioner'spayments.UnderthetermsintheNote,theseinvestorsaretheNote
Holder, andtheyaloneareentitledtoacceleratepaymentsandinitiateforeclosure.
73.
Investorsaretherealpartiesininterest.
74.
Respondentsarewrongfullyattemptingtoassertauthorityreserved
exclusivelytothebeneficialowner.Respondentsownnointerestwhatsoeverin
Petitioner'slienornote.RespondentdonotrepresenttheInvestors.Respondents
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are not entitled to Petitioner's payments. Respondents have nothing to benefit or
lose.
75.
The fact that Petitioners cannot keep pace with the escalating rate of interest
on the Note does not make Petitioners outlaws subject to having their home seized
by Respondents or by any bank: or entity acting in the name ofRespondents. To
pursue foreclosure, respondents must follow the law dictated by their foundational
documents. No party can stand above the law, not even these Respondents.
76.
Accordingly, named Respondent acquired nothing from MERS or any other
assignor because MERS and these Respondents did not hold the full beneficial
interest or any beneficial interest in Petitioner's Property. The parties that do hold
this full beneficial interest are investors ofVNT Trust Series 2010-2. These parties
are not disclosed. In this quiet title action, Petitioner's seek Declaratory Relief in
the form ofa ruling stipulating that these Investors are the true beneficial owners
ofPetitioner's title and, before any foreclosure action can be brought, these
Investors must be joined as indispensable parties and their interests must be
recorded at the Bartow County Recorder's Office, like every other ownership
interest in real property.
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SECOND QUIET TITLE CLAIM
77.
Petitioners challenge the interest held by the named Respondents and the
validity of the assignments to the Respondent assignees because the formalities of
the statute of frauds and D.C.C. 3-203 were not satisfied.
78.
The terms ofthe security instrument state that MERS can only act on behalf
ofand as the nominee for the Lender Tribeca Lending Corp. or their successor or
assIgn.
79.
The exercise of these powers cannot elude the net cast by the Statute of
Frauds. No interest in land can pass without satisfying its formalities.
80.
lt is an irrefutable fact that this lender never signed a writing disposing of its
interest in Petitioner's Property. The ownership interest in land is still parked with
the last recorded beneficial owner and unless and until the statute of frauds is
satisfied, foreclosure cannot be pursued.
81.
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The subject Assignments are invalid for two reasons. For failing to
accommodate formalities in the statute of frauds, these transfers are ruled invalid
because the deterrent attached to the statute of frauds declares all such transfers to
be unenforceable. It also fails to transfer the full beneficial interest for a bearer
instrument, thereby violating U.C.C. 3-203 (b) and (d).
THIRD QUIET TITLE CLAIM
82.
A cloud on a title has been described as an outstanding claim which appears
to be valid on its face, but can be shown by extrinsic proofto be invalid.
83.
On the dates of the Assignments Respondents filed said Assignments
maintaining that assignee held a lien as beneficiary ofPetitioner's security
instrument.
84.
Extrinsic evidence retrieved from the U.S. Securities and Exchange
Commission's search engine reveals transfers ofbeneficial ownership affecting
Petitioner's Property, all occurring prior to the dates of the subject Assignments of
Mortgage (Security Deed). This extrinsic evidence can all be found under the
corporate filing ofVNT Trust Series 2010-2, and Wells Fargo Delaware Trust
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Company, N.A. None of these transfers of beneficial ownership were recorded. All
of them qualified as recordable transactions.
85.
All of this extrinsic evidence qualifies as a fact plausible on its face for
invalidating these Assignments. Each and every one of these facts also supports a
cognizable legal theory for invalidating each assignment. These prior beneficial
transfers are published by the federal government as official documents and their
integrity and legitimacy cannot be reasonable disputed.
86.
The sole support for these assignments is a formulaic term in the Security
Deed. Petitioner's extrinsic evidence is worth of belief and it supports a cognizable
Iegal theory for repudiating this formulaic term.
FOURTH QUIET TITLE CLAIM
87.
MERS holds only a ministerial interest in this transaction at most. Through
legal trickery, as described throughout this Petition, Respondents have attempted to
Maneuver a ministerial interest into the appearance ofa full beneficial interest. To
reach this end, it has engaged the fallacy that it is acting on behalf of the Lender's
successor in interest.
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88.
Respondents are actually acting upon instructions from the mortgage
servicer. There is no functioning lender. Through legal trickery, Respondents are
placing themselves in a position to exercise legal leverage that they have no
authoritywhatsoevertoexercise.
89.
O.C.G.A. 23-3-60et. seq.providesthatcloudsagainstPetitioner'stitlecan
beremovedthroughQuietingTitletothePetitioner'sProperty.
90.
Petitioners hold anequitable interest inPetitioner's Property by virtue ofa
NoteandaSecurityDeed.
91.
ThedocumentsfiledandrecordedinthepublicrecordsofBartowCounty
GeorgiabythenamedRespondentsconstituteaclouduponPetitioner'sProperty.
92.
Forpurposesofthestatute,thedateof filingof thisPetitionshallalsoserve
asthedateinwhichadeterminationis sought.
93.
PetitionersbringthisQuietTitleactionagainsttheseRespondentsand
requiresthatRespondentsdemonstratehow anytransferof thecontractual
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relationship with the borrower, which includes the borrower approved interest in
land, can take place without fulfilling statute of frauds formalities prior to the dates
of the Assignments.
94.
Petitioners bring this action against these Respondents and asks these
Respondents to demonstrate how each of them could be in a position to hold and
convey the full beneficial interest in Petitioner's security instrument and Note
when it had no ownership interest in the note, the statute of frauds had been
ignored, and each Respondent could not prove the full beneficial transfer of
ownership for this bearer instrument from its seller, as U.C.C. 2-203 requires.
95.
Petitioners ask each named Respondent to prove that it is entitled to
payments made by Petitioners for its own use. Under terms in the Note, the only
party with the right to enforce this obligation is the party entitled to payments for
their own use.
96.
Petitioners concede that a mortgage loan was signed and Petitioner is
indebted to the rightful owner of this lien. Petitioners contend that the true owner is
known but not identified and their names are not discoverable. Petitioners ask this
Court to use its Declaratory Judgment authority to expose those imposters by
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removing these clouds and false claims of ownership to Petitioners Security Deed
and Note appearing in this chain oftitle at the Bartow County Recorder's Office by
ordering the following relief.
Prayer for Relief
A. Pursuant to O.C.G.A. 23-3-60 et. seq., Petitioners respectfully ask this
Court to issue a declaratory judgment finding that the interest of these Respondents
In Petitioners Note and Security Deed was void and ofno legal force.
B. Pursuant to O.C.G.A 23-3-60 et. seq. Petitioners ask this Court to declare
that each and every one ofthese Respondents should be disqualified from
enforcing Petitioners Note and Security Deed and to order Respondents to summon
the true owners consisting of holders of mortgage backed securities owning at least
a majority interest in Petitioner's Note and Security Deed.
C. That this Courts' declaratory judgment should further address each and
every one of the clouds upon Petitioner's Property and order such legal and
equitable relief as is necessary for removing these clouds.
D. Petitioners further request reimbursement of all expenses paid in connection
with this legal proceeding, including court costs and reasonable attorney's fees.
E. Petitioners further request any other relief in the form of specific
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performanceandcompensationwarrantedbyevidenceintherecordandthatthe
CourtgrantsuchotherandfurtherreliefastheCourtdeemsequitable,appropriate
andjust.
Respectfullysubmitted ofJanuary,2014.
netC.Neal,Petitioner
906JonesMillRoad
Cartersville,Georgia30120
Phone:
RobertL. Neal, Sr.,Petitioner
906JonesMillRoad
Cartersville,Georgia30120
Phone:
Swom to and subs(;;<:"":J before me this
41

Notary Public
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