Professional Documents
Culture Documents
STATE OF GEORGIA
REGINALD S. MUHAMMAD;
Plaintiffs
CIVIL ACTION
v
FILE NO: __________________
Plaintiff Reginald S. Muhammad, at all times relevant has resided at 155 Joseph
3.
Defendant Joel Haber, a Banking & Investment Law Attorney and who is shown
as Attorney in Fact for First State Bank, at all times relevant, had offices located
at 2365 Wall Street, Suite 120 Conyers, GA 30013
BRIEF BACKGROUND
4.
Lowery
Blvd., Atlanta, Georgia 303142, using his property located at 875/877 Commodore Dr.
N.W. Atlanta, GA3 as collateral on or around September 24, 2007 in favor of Upward
Financial.4
5.
The Joseph E. Lowery property Deed was duly recorded in the Official Record of
The Commodore property Deed is duly recorded in the Official Record of Fulton
At all times since recordation of Plaintiffs Deed(s), the loan has been with
The Defendants knowingly, willingly, and wantonly acted in bad faith, and with
blatant disregard of Plaintiffs property Rights, Federal Law and Georgia Statutes in
an attempt to perpetrate a fraud, and wrongfully foreclose upon subject real property.
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Defendants have executed a Notice of Default and Notice of Sale under Power,
Plaintiff, only a very few days ago, was alerted by a friend, to the fact that the
Defendants were running a Legal Notice Ad of foreclosure in The Daily Report 5 for
2 Referred to hereinafter as The Joseph E Lowery property
3 Referred to hereinafter as The Commodore property
4 The loan and foreclosure lists both properties
5 Daily Report is a subscriber/fee based legal news reporting agency.
2
To the best of Plaintiffs knowledge and belief, and from what he could learn
from Fulton County, the Security Deed(s) recorded in Deed Book 45730, Page 311,
and Deed Book 2216, Page 186 is the most current Deed of record for the subject
residential properties.
11.Without contacting Plaintiff, the Defendants began running a Legal Notice Ad,
which has already run more than two of the required four weeks required by law.
12.
44-14-162(b).
13.
days May 13, 2008 When Governor Perdue signed into law Senate Bill 531, a copy of
information concerning SB531 is attached hereto as Exhibit A
14.
Defendants actions violate Plaintiffs Rights to make requests under The Fair
continued to pursue the Sale under Power in direct violation of the Fair Debt
Collection Practices Act, Section 809(b):
The Fair Debt Collection Practices Act, Section 809(b):
(b) If the consumer notifies the debt collector in writing within the
thirty-day period described in subsection (a) that the debt, or any
portion thereof, is disputed, or that the consumer requests the name
and address of the original creditor, the debt collector shall cease
collection of the debt, or any disputed portion thereof, until the debt
3
Plaintiff has never been supplied with proper evidence that Upward Financial is
There has been no further mortgage, security deed, assignment, lien contract,
OCGA 44-14-162(b).
OCGA 44-14-162(b) 6:
The 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.
20.There is no Note on the Official Record to secure the above referenced Security
Deed(s).
21.
the mandates of Federal and state law which would have alerted Plaintiff to properly
request First State Bank to produce the promissory note.
22. To date, nothing has been presented to Plaintiff to indicate that Upward Financial
is legally no longer the loan holder.
23.
Allowing the Sale under Power to be completed, would not only expose
Plaintiff to potentially ruinous financial liability, but would also be a direct violation
of The Due Process Clause, and numerous Constitutional guarantees concerning
6 OCGA 44-14-162(b).amended by 2008 Ga. Laws 576, OCGA 1, eff. 5/13/2008, see
Exhibit A
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property.
MEMORANDUM OF LAW IN SUPPORT OF TRO and/or
PRELIMINARY INJUNCTION
Plaintiff Mr. Muhammad incorporates fully and by this specific reference the
statements in paragraphs 1 through 22 of this Petition/Complaint as if stated fully
herein.
A motion for interlocutory injunction or a TRO is an extraordinary motion,
which is time sensitive, unlike other motions, because it seeks to preserve the status
quo until a full hearing can be held to avoid irreparable harm. Focus Entertainment
International, Inc., v. Partridge Greene, Inc. (253 Ga. App. 121) (558 SE2d 440)
(2001).
The Focus Court went on to explain that foreclosure is one such instance which
injunction is appropriate because when an interest in land is threatened with
harm, such harm is deemed to be irreparable to the unique character of the property
interest, i.e., money damages are not adequate compensation to protect the interest
harmed. See the following:
(a) Land, under Georgia law, is deemed sufficiently unique that it
is entitled to equitable remedies to protect such interest in land.
Rife v. Corbett, 264 Ga. 871 (455 SE2d 581) (1995) (injunction to
protect an easement); Benton v. Patel, 257 Ga. 669, 672 (1) (362
SE2d 217) (1987) (injunction to stop foreclosure); Black v.
American Vending Co., 239 Ga. 632, 634 (2) (238 SE2d 420)
(1977) ("the law regards as sufficiently unique that equity will
enforce a contract for [land] sale or lease"); Clark v. Cagle, 141 Ga.
703, 705-706 (1) (82 SE 21) (1914) (specific performance of
contract to sell land). Therefore, when an interest in land is
threatened with harm, equitable injunctive relief is appropriate,
because such harm is deemed to be irreparable to the unique
character of the property interest, i.e., money damages are not
adequate compensation to protect the interest harmed. See
generally Central of Ga. R. Co. v. Americus Constr. Co., 133 Ga.
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under OCGA 44-14-162. (b) thereby entitling Mr. Muhammad to all appropriate
relief provided for by statute.
Plaintiff Mr. Muhammad regrets the emergency nature of this petition and
prays the Courts GRANT the following relief:
(a)
(g) GRANT Plaintiff Mr. Muhammad all court costs and court related fees.
(h) GRANT Plaintiff Mr. Muhammad any and all other and/or further relief allowed
by law and/or which this Court deems just and proper.
Respectfully submitted this 29th day of July, 2009
By: ____________________________
REGINALD S. MUHAMMAD, Pro Se
155 Joseph E Lowery Blvd., NW
Atlanta, Georgia 30314
(404) 641-6142
VERIFICATION
I, Plaintiff Reginald S. Muhammad, having been duly sworn, under penalty of
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perjury, deposes and says that I am over the age of eighteen (18) and mentally
competent to testify in this matter. My person and my property are in danger of
immediate and irreparable injury, and loss, or damage will result to the applicant
before the adverse party or his attorney can be heard in opposition; and I hereby
Certify, that the facts set forth regarding all matters stated in the above paragraphs are
true and correct, therefore since this is an Emergency Petition further notice should
not be required. I have read the foregoing pleading, the facts stated therein are from
first hand knowledge and are true and correct to the best of my knowledge and belief.
____________________________
Janet D. McDonald, Notary Public
My Commission Expires: January 05, 2010