IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA LEE E.
FOWLER, Plaintiff CIVIL ACTION v CITIMORTGAGE; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, Inc.; MORTGAGE RESEARCH CENTER; ANTHONY DEMARLO (In His Professional and Individual Capacities); MCCURDY & CANDLER, LLC (For Attorney As Representative of Secretary of Veterans Affairs, Washington DC); Defendants JURY TRIAL DEMANDED FILE NO: ________________
VERIFIED COMPLAINT FOR STATE LAW CLAIMS AND TO SET ASIDE AN UNLAWFUL SALE UNDER POWER
COMES NOW, Plaintiff, LEE E. FOWLER, proceeding in propria persona, and who files his Verified Complaint to Set-Aside an Unlawful Sale Under Power And For State Law Claims. For the purpose of enabling all persons owning real estate within this state to have the title thereto settled and registered as prescribed by this article, the superior
court of the county in which the land is located shall have exclusive original jurisdiction of all petitions and proceedings had thereupon. O.C.G.A. 44-2-60 (2010) INTRODUCTION
1. In this action, Plaintiff seeks inter alia, an injunction of eviction, based
upon Defendant’s failure to comply with statutory prerequisites to foreclosure, and a determination of the validity of a foreclosure sale held in violation of statutory requirements, together with other state law claims for injuries and damages therefrom, and for other relief.
2. Georgia has longstanding, statutorily prescribed non-judicial procedures
for pursuing and conducting a Power of Sale, with only minimal consumer protections for homeowners. O.C.G.A. §44-14-162 et. seq
3. The law is clear, however, that entities foreclosing upon homeowners
must1 strictly comply with Georgia’s statutory prerequisites to
Will, shall, and must are mandatory words, there is no discretion when there is used a mandatory words; As pointed out by the Court of Appeals, the plain meaning of "must" is a command, synonymous with "shall." Henderson v. State, supra. See also Allmond v. State, 202 Ga. App. 902, 903 (415 SE2d 924) (1992); Hubbard v. State, 201 Ga. 213, 214 (1) (411 SE2d 44) (1991). See Ga., Fla. &c. R. Co. v. Sasser, 130 Ga. 394, 395 (60 SE 997) (1908); Birdsong & Sledge v. Brooks, 7 Ga. 88, 89 (1849); Alewine v. State, 103 Ga. App. 120, 122 (118 SE2d 499) (1961); Bass v. Doughty, 5 Ga. App. 458, 460 (63 SE 516) (1908).[ Whenever in a rule, or statute, there has been used, an unmistakably mandatory character, it is required that certain procedures "shall," "will," or "must" be employed; the court has no discretion to act in a different manner, and often the mandatory character creates a liberty interest. Hewitt v Helms, 459 US 460 - Supreme Court 1983 @ 871; see also Russ v. Young, 895 F.2d 1149, 1153 (7th Cir.1990), See also Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979).; “use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has
foreclosure. O.C.G.A. §23-2-114. Among other things, it is black-letter law that the entity seeking to foreclose must have actual legal authority to exercise the Power of Sale.
4. Many foreclosing entities, including Defendants, have dispensed with
the fundamental requirements; pursuing foreclosure through their legal Counsel, without having first obtained proper and legally valid assignment of the mortgage, just as in this case.
5. Georgia’s foreclosure process has become undisciplined, and lawless.
Many foreclosures are plainly void under statute and Georgia case law, many borrowers never obtain accurate statutorily required notices.
foreclosing entities have flawed, and fraudulently created
assignments of title, and/or that have been obtained by third party default specialists who get paid for the service of manufacturing/fabricating the documents needed to foreclose upon unsuspecting homeowners.
7. The Notes and Security Deeds have been separated, and each has been
sold to different groups of investors, and are sometimes then resold without a proper chain of title, and thereby creating a cloud upon the title, and resulting in property that will never be marketable again.
8. Foreclosing entities have not stopped there, they have even foreclosed on
created a protected liberty interest.” Verrett v. Stempson, 623 A. 2d 120 - DC: Court of Appeals 1993
homes that had no mortgage, or whose mortgages have been satisfied, or eliminated/ discharged by The United States Bankruptcy Court.
9. Plaintiff seeks relief for the injuries bestowed upon the Plaintiff from
Defendants’ actions, and for the wrongful foreclosure of his residence, his home.
10. Plaintiff seeks declaratory and injunctive relief concerning a foreclosure
and Sale Under Power conducted by entities that were not the holder in due course, and/or that lacked standing/capacity to pursue and perform such Sale Under Power.
11. Plaintiff seeks relief in the form of declaratory and injunctive relief for
the deficient notices of default, and notices of sale under power.
12. Plaintiff seeks relief in the form of an injunction preventing imminent
eviction of Plaintiff from his home.
13. Plaintiff seeks relief in the form of procedures to void and/or verify the
validity of the underlying Sale Under Power.
14. Plaintiff further seeks injunctive relief to prevent defendants from
continuing their harmful behavior toward Plaintiff and Georgia homeowners as a whole. JURISDICTION AND VENUE
This Court has subject matter jurisdiction over this matter, because the subject
involves Georgia Real Property, title thereto, and Georgia foreclosure Codes and
Rules, and for which Georgia’s Constitution, gives the Superior Courts exclusive, original jurisdiction.
Superior Courts have jurisdiction to grant equitable relief, and have right to
direct review of lower courts, and to correct errors made by lower courts on appeal.
Superior Court, further has jurisdiction, because Plaintiff has pled only state
law causes of action, there are no Federal Claims, no Federal Causes of Action, and Plaintiff has pled for no Federal Relief; and the parties are not totally diverse from one another.
Venue is also proper in this Court, over the out of state defendants, under
Georgia’s Long Arm Statute. 19. Venue is proper in this Court, because the Registered Agents for several
defendants are located in Fulton County. PARTIES TO THE ACTION
Plaintiff, Lee E. Fowler, (“Plaintiff”, or “Mr. Fowler”) at all times relevant,
resided at 2815 Springrock Hill Trail, Lawrenceville, Georgia 30043, Gwinnett County.
Defendants Mortgage Electronic Registrations Systems, Inc., (hereinafter
“MERS”), is a wholly owned subsidiary of MERSCORP; MERS was Incorporated under the laws of Delaware, operating an electronic registry designed to track servicing rights and ownership of mortgage loans. Their principal place of business is
1818 Library St., Suite 300 Reston, VA 20190. They are not Registered to do business in the state of Georgia, therefore can be served with Two Summons and Two Complaints and Affidavit that a diligent Search for a Registered Agent and Office in Georgia has been performed, and by Service upon Secretary of State for Georgia, Brian P Kemp at 315 West Tower, #2 Martin Luther King , Jr. Drive, Atlanta, Georgia 30334, in Fulton County, AND by sending, via Certified Mail, a copy of Summons and Complaint to the CEO, at their principal place of business.
Defendant CitiMortgage, Inc. (hereinafter “Citi”), is a Foreign For-Profit
Corporation, whose principal office address is P. O. Box 30509, located in Tampa, FL 33631; they can served through their Registered Agent CT Corporation System, whose address is: 1201 Peachtree Street, N.E., Atlanta, GA 30361, in Fulton County.
Defendants Anthony DeMarlo (“DeMarlo”) and McCurdy & Candler, LLC,
(“McCurdy”) is a law firm incorporated in the state of Georgia, their Registered Agent is located at their principal place of business, Registered Agent: Anthony DeMarlo is located: Six Piedmont Center, Suite 700, 3525 Piedmont Rd NE, Atlanta, Georgia, 30305 Fulton County. McCurdy & Candler’s attorneys, including, but not limited to Anthony DeMarlo, a/k/a “foreclosure mill attorneys”, like McCalla Raymer, regularly represent MERS and/or other entities seeking to perform nonjudicial foreclosures in the state of Georgia; in the instant action, acting for and on
behalf of its clients CitiMortgage, instituted and pursued non-judicial foreclosure against Plaintiff with full and actual knowledge that it lacked authority to do so.
Defendant Mortgage Research Center, LLC (“MRC”), is for profit foreign
corporation, formed under the laws of Delaware, with its principal place of business located at 2101 Chapel Plaza Court, Suite 107, Columbia, MO 65203. They will be served through their Registered Agent on file at Georgia Secretary of State’s Office: Registered Agent: National Registered Agents, Inc, located at 3675
Crestwood Parkway, Suite 350, Duluth, GA 30096, Gwinnett County, Georgia. STATEMENT OF FACTS
Plaintiff incorporates paragraphs one (1) through twenty-four (24), all general,
and all unnumbered paragraphs, as if fully restated herein.
On or around May 5, 2006, Plaintiff purchased, as his residence, property
located at 2815 Springrock Hill Trail, Lawrenceville, Georgia in Gwinnett County.
Plaintiff executed a Security Deed in favor of Mortgage Research Center, and
recorded as: Land Lot 148 of the 7th District of GWINNETT County, Georgia, Being Lot 40, Block B, of the Brook Forest Subdivision as per Plat Recorded in the Plat Book 59, Page 228, GWINNETT County, Georgia Records. 28. After obtaining information that there was a possible problem, and that the
entity to whom he was making payments, may not be the proper entity to be accepting
the payments, Plaintiff has sent the defendant, CitiMortgage a QWR letter attempting to obtain several documents from CitiMortgage. 29.
At this time the defendant has not responded. On April 13, 2006 the Plaintiff signed a Truth in Lending Disclosure Statement
prepared by Mortgage Research Center which stated the property address as being “1 TBD Stockbridge, GA 30281, application number 060407022 with a Security Interest given at 1 TBD, Reston, VA 20190”.
Plaintiff questioned that the address was incorrect, and the “closing attorney”,
conducting the closing, shrugged it off, and acted as though it didn’t matter; as far as the “closing attorney” was concerned, either Plaintiff would go through with the closing or not, period.
The Disclosure Statement, on April 7, 2006, was illegibly signed, with
scribbling,2 by one of the Lender’s representatives. “Exhibit A” 33. On May 5, 2006 the Plaintiff signed a Promissory Note promising to pay the
Lender Mortgage Research Center $247,816 with a yearly interest rate of 6.5 percent at a monthly payment of $1566 beginning July 1, 2006.
On page 4 of the Note is shown “pay to the order of without recourse” Plaintiff
has repeatedly, unsuccessfully, attempted to have Citi clarify the significance of the
Obviously, the scribbling of one’s name onto Real Property records, has become the norm, it prevents anyone from later being able to decipher who the signature represents, thus ensuring that the person will not later be questioned about the documents’ legitimacy.
stamped information, as conveyed in the May 13, 2011 Qualified Written Request Letter. Attached are the QWR and CitiMortgage's reply letter. “ Exhibit B-1, B-2”
On May 5, 2006 the Plaintiff signed a document that is alleged to have been an
“Itemization of Amount Financed”, which showed the prepaid finance charges in the amount of $9113.25, of which $7916.70 was an alleged “Funding Fee to Mortgage Research Center” with loan amount $238,150.75 going to Castan Lecca. “Exhibit C”.
Also on May 5, 2006 the Plaintiff signed the Security Deed, showing MERS as
“ nominee for Lender and Lender’s successors and assigns”. “Exhibit D”
May 5, 2006, Plaintiff, also allegedly signed “Notice of Assignment, Sale or
Transfer of Servicing Rights” which transferred loan servicing to Citi. “Exhibit E”.
The Federal Govt., Jan 5, 2007, implemented “Federal Reduction in Force”
(RIF), Plaintiff was one of the statistics of cutbacks, released from employment where he had enjoyed a base salary of $66,939. “Exhibits F” 39. Timely mortgage payments were made until around July of 2008, the Plaintiff
had exhausted all of his savings due to emergencies and unexpected expenses coupled with the task of making (2) mortgage payments.
Both the primary residence at 2815 Springrock Hill Trail and a rental property
bought prior to the primary residency at 1845 Courtyard Lane in McDonough, GA had a combined monthly mortgage payout of $2,839. .
A drastic change in pay really hurt, coupled with automotive problems, college
student expenses, property management disasters and a minimal salary contributed to the inability to maintain mortgage payments.
On or about March 2009 the Plaintiff requested hardship assistance and signed
for a loan modification on April 8, 2009. “Exhibits G-1”
On or about April 30, 2009 according to MERS Milestone Report No.1003502-
0060407022-7 a foreclosure was pending and retained on MERS “Exhibits G-2”
June 1, 2009 MERS Assigned the Note and Deed to CitiMortgage, Inc., a
necessary step before the Sale Under Power can legally proceed. “Exhibits H, H-1”
MERS’ Lender Vice President Craig Houpt, on August 12, 2009, signed the
April 08, 2009 loan modification that Plaintiff worked very to obtain. “Exhibits G-1”
In May of 2010, after realizing some issues concerning the home loan, and no
questions being answered, Plaintiff paid to have a forensic loan audit performed, by “Truth in Lending Auditors, LLC”, 1903 Greeley Hwy, Suite 8181, Cheyenne, WY 82007.
The audits began in late May, and continued to completion, arriving in the mail
to Plaintiff, a copy having been sent to CitiMortgage as well, on June 21, 2010.
The TILA Audit and Complaint Resolution Proposal was mailed directly
from the audit company to CitiMortgage, Inc via USPS #9410 8036 9930 0008 3533
Through today’s date, Citi has refused to respond or acknowledged the
There had been an offer to satisfy the debt with the documents sent to Citi; they
never commented, or countered the offer attached to the Complaint Resolution Proposal. “ Exhibit I”
This case involves a dispute between the parties, with Plaintiff having suffered
injuries and damages; Plaintiff made a fair offer to settle with defendants before they ever foreclosed and sold Plaintiff’s property. 52. The proposal, made through a third party on behalf of the Plaintiff, was never
even considered by defendants.
The following shows that there is in fact a case and controversy, and Plaintiff
has been injured and will continue to be injured and will continue to suffer from defendants’ action; the following shows only some of the Critical Facts brought to light by the forensic Loan Audit: a) b) No Mortgage Loan Origination Agreement on file No apparent Underwriting
c) Gross lack of due diligence by the lender/broker in approving the loan and the appearance of unconscionability in conducting the loan d) e) f) Borrower did not pay a yield spread premium to obtain the loan No prepayment penalty Placing the borrower in a loan LTV over 100%
g) Predatory lending practices such as failing to disclose all material terms to borrower
Inappropriate loan programs
Noticeable assignee liabilities and the potential difficulties in
determining the Holder in Due Course and multiple layers of risk
On April 26, 2011 Plaintiff mailed a sworn notarized Affidavit (Fedx)
statement (Letter) to CitiMortgage alleging fraudulent loan inducement practices. To this date no reply has been conveyed regarding the allegations.
On May 13, 2011 Plaintiff sent Citi a Qualified Written Request Letter by
certified mail to which Plaintiff received acknowledgment of on May 31, 2011; and a response to on June 6, 2011.
Citi The response was less than satisfactory; leaving most of the information
Plaintiff sought, was unresponsive to.
Most of the major issues and questions, outlined in the request were ignored. The specific allegations stem from the apparent absence of anything resembling
the loan to Plaintiff, and is a clear implication of fraudulent loan inducement. COUNT ONE LACK OF STANDING/NOT HOLDER IN DUE COURSE (Against All Defendants)
Plaintiff incorporates paragraphs one (1) through fifty-eight (58), all general,
and all unnumbered paragraphs, as if fully restated herein.
Prior to closing, it was never disclosed to Plaintiff who or what MERS was, or
that MERS would be named in the security instrument, and/or involved with Plaintiff and/or Plaintiff’s Security Deed in any way..
Plaintiff executed a Promissory Note and Security Deed on May 5, 2006, in
favor of Mortgage Research Center, LLC (MRC) of 2101 Chapel Plaza Court, Ste. # 107 Columbia, MO 65203, for the property at 2815 Springrock Hill Trail in Lawrenceville, GA.
At closing, Plaintiff was only of the knowledge that MRC, was alleged to have
been the lender.
Plaintiff was hurried through the closing documents, Plaintiff does not recall
ever reviewing or signing any documents that mentioned MERS. 64.
MERS was also a part of the Security instrument, but not part of the Note. To the best of Plaintiff’s knowledge and belief, at some time unknown to
Plaintiff, the Note and security deed were bifurcated where the deed and Note were separated for the purposes of selling/pledging each document to separate investors.
Plaintiff is informed, believes, and therefore alleges; after the origination of his
loan, it was funded, bundled into a group of Trust Deeds and subsequently sold to investors as a Derivative, “Mortgage Backed Securities” 67. Undisputable Fact: Plaintiff has been presented with two (2) different Notes,
one from McCurdy, one from Citi.
July 1, 2006, MERS allegedly assigned CitiMortgage as Servicer, defendants
have refused and failed to produce any credible evidence to support their claims.
Plaintiff is informed, believes and therefore alleges, that not until June 1, 2009
was there any documentation that Assigned, nominated, or appointed, Citi to anything, even after June 1, 2009, Citi was not the holder in due course.
No other signatures, other than the Plaintiff’s are on the Promissory Note’s
signature blocks. The “Pay to the Order of” information was on the copy provided by Citi, but not on the copy sent to the Plaintiff by the agent representatives McCurdy.
Plaintiff took the proper legal steps, before the alleged foreclosure and sale
under power to have the debt validated, and requests, that would require defendants to respond to the questions set forth before them concerning the mysterious Promissory Notes, but to date, neither Citi, nor McCurdy have ever responded appropriately, and they foreclosed and conducted Sale Under Power while Plaintiff awaited the response.
Citi has refused to explain “Pay to the Order of CITIMORTGAGE, INC
without Recourse MORTGAGE RESEARCH CENTER, LLC”, signed by Kevin Knesek, Vice President POA, Lone Star Bank, S.S.B” from one (1) of Plaintiff’s Promissory Notes:3
Amazingly, Citi provided a Note with the “Pay to the Order of…” on the Note, and McCurdy provided a Note that does not have “Pay to the Order of…” anywhere on it; apparently there are magically two separate Notes involved in Plaintiff’s property. Two (2) different entities, both named as defendants in the case at bar, have provided two (2) different Notes. Furthermore, because McCurdy is Representative of Secretary of Veterans Affairs of Washington DC (SVA), presumably, the Note McCurdy had, will be the one SVA will have for the records. The documents that SVA magically provided to the Magistrate Court, at the dispossessory hearing, had no signatures anywhere on them, yet they were accepted by the Magistrate Court, nevertheless, SVA picked the Court they wanted to pursue dispossessory in, just so happened to be a Court that Plaintiff would be estopped from making these very arguments in.
On June 7, 2011 at 11:45 AM, it has been alleged that Plaintiff's property was
knocked off the highest bidder, and the bid started at, and concluded with $136,000.
At the time of foreclosure, it was/still is, unknown who actually held/holds the
true original promissory Note; Plaintiff has been provided with two different ones. 75. Both Promissory Notes cannot be “the real” Note; the only way to prove the
real Note at this point, would to be to produce the Original wet ink document. 76. Defendants have already proven that they have had at least one Note created
and forged; it could be that both have been created and forged. 77. None of the defendants, at the time they pursued foreclosure and the wrongful
Sale Under Power, were the holder in due course.
Black’s Law Dictionary, 7th Ed. WestGroup, (1999) pp. 737 defines “holder in
due course” as: “A person who in good faith has given value for a negotiable instrument that is complete and regular on its face, is not overdue, and, to the possessor’s knowledge, has not been dishonored. *”.
Further, a “[h]older [is defined as] a person who is in possession of a
document of title or an instrument. . . .” O.C.G.A. 11-1-201(20). 80. A holder takes an instrument for value “[t]o the extent that the agreed
consideration has been performed or that he acquires a security interest in or a lien on the instrument otherwise than by legal process. . . .” O.C.G.A. § 11-3-303(a).
81. (b). 82.
A holder must also take the instrument in good faith. O.C.G.A. § 11-3-302(1)
Good faith is defined as “honesty in fact in the conduct or transaction
concerned.” O.C.G.A. § 11-1-201(19).
To constitute bad faith, it must be as in the case at bar, a purchaser must have
acquired the instrument “with actual knowledge of its infirmity or with a belief based on the facts or circumstances as known to [the purchaser] that there was a defense or [the purchaser] must have acted dishonestly.” Citizens & Southern Nat'l Bank v. Johnson, 214 Ga. 229, 231, 104 S.E.2d 123, 126 (1958); Commercial Credit Equipment Corp. v. Reeves, 110 Ga.App. 701, 704, 139 S.E.2d 784, 787 (1964).
Lastly, a holder must take the instrument without notice of default or defense.
O.C.G.A. § 11-3-302(1)(c).4 85. Based upon information and belief, it appears that the Plaintiff’s loan, was one
where, prior to closing, investors provided the funds loaned, and immediately after closing, the loan was sold to yet another entity.
Based upon information and belief, immediately after the closing the lender,
dumped the Note and Deed, much like the investors cheated into a Ponzi scheme ten
A person has "notice" of a fact when: a) He has actual notice of it; or (b) He has received a notice or notification of it; or (c) From all the facts and circumstances known to him at the time in question he has reason to know that it exists. O.C.G.A. § 11-1-201(25). See also Hopkins v. Kemp Motor Sales, Inc., 139 Ga.App. 471, 473, 228 S.E.2d 607, 609 (1976) (holding that knowledge of a fact as defined in the UCC is actual knowledge).
years ago, as shown In re SGE Mortgage Funding Corp., 278 BR 653 - Bankr. Court, MD Georgia 2001278 B.R. 653 (2001). 87. Upon information and belief, the true lender in the case at bar, had entered into
agreements with one or more parties, including the loan seller, prior to the closing.
The security for the loan, secured an obligation that had been paid in full by a
third party, who was acting as a financial institution or lender without being registered to do so in violation of regulations and contrary to state and federal laws, rules, authorities, and/or agencies.
Plaintiff’s Note was then allocated into a special purpose vehicle formed only
for the purpose of holding pooled assets under certain terms; the terms included the allocation of payments from one note to pay any deficiency in payment of another note in unrelated loan transactions, and contrary to the terms of each such note. 90. Based upon knowledge and belief, the promissory note had been pledged,
hypothecated, and/or assigned as collateral security to an unknown entity, foreign trust, or to an agency of the United States government or Federal Reserve
What inevitably happens in the end, is the borrowers, never pay off their loan,
which loan, was created with the intention, that it can never be paid back.
Further, not only will the loan never be paid back, but ends up with the
borrower having to pay twice as long, or twice as much, or twice as much for twice as long, just to try to keep their home; see In re SGE Mortgage Funding Corp.,
278 BR 653 - Bankr. Court, MD Georgia 2001278 B.R. 653 (2001) “White and Summers also criticize Maryville. See White & Summers, supra, § 30-7 at 49.
It has been proposed that splitting the perfection of the note and mortgage
would effectively require the mortgagor to pay twice to get free and clear title to his real property.” Id.
COUNT TWO RECORDATION OF FORGED/FRAUDULENT DOCUMENTS (Against All Defendants)
Plaintiff incorporates paragraphs one (1) through ninety-three (93), all general,
and all unnumbered paragraphs, as if fully restated herein.
The Georgia Court of Appeals has repeatedly held that the “right of the
humblest individual in the enjoyment of his property must be protected.”5 96. An individual's property right is of such paramount importance that the Georgia
Constitution is dedicated to the protection of private property.
No fewer than eleven (11) separate paragraphs of the Georgia Constitution 6
expressly address individual property rights.
Williams v. LaGrange, 213 Ga. 241 (1957); Ammons v. Central of Georgia Railway Co., 215 Ga. 758 (1960).
See, e.g., Georgia Constitution, Art. I, § I, I, II, IV, XXVI, and XXVII; Art. III, § III, I; Art. VII, § I, II and III; Art. VII, § II, II and IV; and Art. IX, § VII, III.
Particularly, the Georgia Constitution emphasizes that protection of property is
“the paramount duty of government[,]”.7
So important are property rights that the Georgia Legislature has codified
property-related torts, thereby providing statutory causes of action for any interference with an individual's property rights.8 A. Supreme Court of Georgia’s March 25, 2011 Ruling 100. Defendants in this case at bar, failed to adhere to strict Georgia statute concerning the recording of real property into the County/State Records, and “constructive notice to subsequent bona fide purchasers”.
March 25, 2011 the Supreme Court of Georgia Ruled in a Certification
requested by Federal Court “that the 1995 Amendment is applicable to security deeds”; “See O.C.G.A. §44-2-14 (‘Before any deed to realty or personalty or any mortgage, bond for title, or other recordable instrument executed in this state may be recorded, it must be attested or acknowledged as provided by law’).” “Exhibit 000”
The documents Defendants have repeatedly used concerning Plaintiff’s real
property and the recordation of same, show the documents recorded were not properly attested to, therefore did not provide notice to potential buyers, in violation of
Georgia Constitution, II
OCGA §§ 51-9-1: "[t]he right of enjoyment of private property being an absolute right of every citizen, every act of another which unlawfully interferes with such enjoyment is a tort for which an action shall lie."; 51-9-2, 51-9-3: ("The bare possession of land shall authorize the possessor to recover damages from any person who wrongfully interferes with such possession in any manner", and 51-9-10
O.C.G.A. §§ 44-14-61, 44-14-33.9 103. O.C.G.A. §44-14-61 provides that “[i]n order to admit deeds to secure debt…to record, they shall be attested or proved in the manner prescribed by law for mortgages.” 104. O.C.G.A. §44-14-33 provides the law for attesting mortgages: “In order to admit a mortgage to record, it must be attested by or acknowledged before an officer as prescribed for the attestation or acknowledgment of deeds of bargain and sale; and, in the case of real property, a mortgage must also be attested or acknowledged by one additional witness. In the absence of fraud, if a mortgage is duly filed, recorded, and indexed on the appropriate county land records, such recordation shall be deemed constructive notice to subsequent bona fide purchasers.” B. Georgia Land Registration Laws
105. It is apparent from the long, exhausting misadventure that Defendants have caused Plaintiff to endure, that they have knowingly, willingly, wantonly, fraudulently, and maliciously attempted to gain Plaintiff’s property or an interest in Plaintiff’s property, and filed fraudulent documents to aid themselves in gaining an
To set the matter straight, and prevent any future arguments, the US District Court, Certified the question to the Georgia Supreme Court, who Ruled March 25, 2011 No.: S10Q1564 in US Bank National Association v. Gordon. The question was whether the 1995 Amendment “means that, in the absence of fraud, a security deed that is actually filed and recorded, and accurately indexed, on the appropriate county land records provides constructive notice to subsequent bona fide purchasers, where the security deed contains the grantor’s signature but lacks an official and unofficial attestation (i.e., lacks attestation by a notary public and also an unofficial witness).” They answered “the certified question in the negative.”
interest in, or in the whole of Plaintiff’s property, by forgery, fraud and general illegal means.
O.C.G.A. 44-2-43 (2010)
Fraud, forgery, and theft in connection with
registration of title to land; penalty Any person who: (1) fraudulently obtains or attempts to obtain a decree of registration of title to any land or interest therein; (2) knowingly offers in evidence any forged or fraudulent document in the course of any proceedings with regard to registered lands or any interest therein; (3) makes or utters any forged instrument of transfer or instrument of mortgage or any other paper, writing, or document used in connection with any of the proceedings required for the registration of lands or the notation of entries upon the register of titles; (4) steals or fraudulently conceals any owner's certificate, creditor's certificate, or other certificate of title provided for under this article; (5) fraudulently alters, changes, or mutilates any writing, instrument, document, record, registration, or register provided for under this article; (6) makes any false oath or affidavit with respect to any matter or thing provided for in this article; or (7) makes or knowingly uses any counterfeit of any certificate provided for by this article shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than ten years.
O.C.G.A. §44-2-43 Does not exempt bankers, brokers, lenders, assignees,
nominees, clerks, or any other person.
O.C.G.A. §44-2-43 Does not provide that such individual needs to be indicted,
arrested, charged, or tried; further, the statute uses the mandatory character “shall”10,
“Shall”, “will”, and “must” are mandatory words, there is no discretion when a mandatory words has been used; "Shall" is generally construed as a word of mandatory import. See State v. Henderson, 263 Ga. 508, 510, 436 S.E.2d 209 (1993); see also
i.e.: “shall be” guilty, and “shall be punished”. 109. Under Georgia law, no sale of real estate under Power of Sale, contained in security deeds are valid, unless the sale is advertised and conducted at the time and place and in the usual manner of the Sheriffs’ Sales in the county in which such real estate or a part thereof is located, and unless Notice of the sale is given as required by O.C.G.A. §44-14-162.2.
Citi had no right to proceed with a foreclosure and non-judicial sale of
Plaintiff’s property, as proper notice was not given as required by O.C.G.A. §44-14162.2.
Where a foreclosing creditor fails to comply with the notice requirements of
section O.C.G.A. §44-14-162.2, the residential debtor may pursue a claim for wrongful foreclosure. Roylston v. Bank of America, N.A., 290 Ga. App. 556, 660 S.E.2d 412, Ga. App. 2008. 45. The purported assignments do not comply with O.C.G.A. §44-5-64 because the
assignment of the security deed did not satisfy the attestation formalities prescribed by
Murphy v Bajjani, Ga. Supreme Court 2007 No: S06G1483 (“We agree with the Court of Appeals that, as a rule of statutory construction, “’[s]hall’ is generally construed as a word of mandatory import.”) O'Donnell v. Durham, 275 Ga. 860 (3) (573 SE2d 23) (2002). Unmistakably mandatory character, requiring that certain procedures “shall”, “will”, or “must” be employed, Hewitt v Helms, 459 US 460 – Supreme Court 1983; mandatory language the words “shall”, “must”, or “will”. In sum the use of “explicitly mandatory language”, …establishment of “specified substantive predicates” to limit discretion, … Hewitt v Helms, 459 U.S., at 472. "[A] State creates a protected liberty interest by placing substantive limitations on official discretion." Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983).
O.C.G.A.§44-5-33, the purported assignment is not a valid assignment under Georgia law; thus, any foreclosure of the security interest covered by the assignment is null and void.
At closing of the loan, Plaintiff executed a promissory Note in favor of the
Lender, who was identified as the Note Holder; there was no mention of CitiMortgage, Inc.
The mere fact that the foreclosing party was not the secured creditor, and did
not have a legal interest in the property and thus did not have a valid power to sell the property is a cognizable to a wrongful foreclosure claim. Id.
“A claim for wrongful exercise of power of sale under O.C.G.A. §23-2-114 can
arise when the creditor has no legal right to foreclose.” (reversing trial court ruling that creditor’s lack of a legal interest in the foreclosed property barred a wrongful foreclosure claim); see Rapps v. PHH US Mtg. corp, (allowing appellant to maintain wrongful foreclosure claim based on allegations that appellee altered deed so that it could foreclose on property that was never subject to the deed); the debtor may seek both cancellation of the foreclosure sale and recovery of damages “not associated with the value of the property for other wrongful conduct by a mortgagor.” Calhoun, 443 S.E.2d at 838; Clark, 395 S.E.2d at 885-86 (explaining that damages “for other breaches of duty and other losses” are allowed in action to cancel foreclosure sale).
Where a creditor does not comply with the statutory duty to exercise fairly the
power of sale in a deed to secure debt, the debtor may pursue a cause of action for
wrongful foreclosure under O.C.G.A. §23-2-114. DeGloyer v. Green Tree Servicing, LLC, 662 S.E.2d 141 (Ga. Ct. App. 2008).
The “Waiver of Borrower’s Rights” purported to give Defendants rights to act
as attorney in fact, is a fraudulent document manufactured by Defendants, and with Plaintiff’s signature forged upon the document. 117. Plaintiff maintains that there was not a Notary present at the closing, and the closing attorney’s signature was not the attorney at closing.
Furthermore, the fact that the signature of the witness, being the same signature
as that of the closing attorney, created, a conflict of interest upon the face of the document.
Moreover, besides the conflict of interest on the face of the document, the
fabricated/manufactured document shows that Plaintiff unlawfully was forced to waive his rights covered by the Fifth and Fourteenth Amendments, which has been held, is to be of no effect, one cannot Waive Fifth and Fourteenth Amendment Rights, especially for real property deeds. 120. Defendants knowingly, willingly, wantonly, and with malicious intent caused forged documents to be used to unlawfully and wrongfully foreclose and conduct a Sale Under Power, thereby unjustly enriching and converting Plaintiff’s property through deceit. 121. Defendants knowingly, willingly, wantonly, and with the intent to deceive,
committed fraudulent acts as joint venturers in order to foreclose upon Plaintiff and his property, and knowing that Plaintiff would believe the false representations made to him, have acted in bad faith, with unclean hands, and were not, and can never be a holder in due course.
It is well known fact that an improperly attested deed does not provide
constructive notice of the assignee’s security interest, the bona fide purchaser has priority of title to the disputed property as against the assignee, and thus, the assignee’s deed should be canceled as a cloud upon the superior title of the purchaser. See Higdon v. Gates, 238 Ga. 105, 231 S.E.2d 345 (Ga. 1976) (affirming trial court’s cancellation of bank’s security deed as a cloud upon title of subsequent purchaser where the deed was not properly attested because it showed on its face that the tax had not been paid to entitle it to be recorded).
As a result of Defendant’s illegal and tortuous conduct in conducting wrongful
foreclosures, Plaintiff requests, actual, compensatory, intentional infliction of emotional distress and punitive damages. Clark v. West, 196 Ga. App. 456, 457, 395 S.E.2d 884, 886 (Ga. Ct. App. 1990); see, e.g., Curl v. First Federal Savings & Loan Assn., 243 Ga. 842, 843-844(2), 257 S.E.2d 264 (1979) (affirming award of actual and punitive damages in an action for wrongful foreclosure); Decatur Investments Co. v. McWilliams, 162 Ga. App. 181, 181, 290 S.E.2d 526, 527 (1982) (affirming award of punitive damages in a wrongful foreclosure action
where debtor provided sufficient evidence of creditor’s bad faith).
In a wrongful foreclosure action, the injured party may seek damages for
mental anguish in addition to the cancellation of the foreclosure. DeGolyer v. Green Tree Servicing, LLC, 291 Ga. App. 444, 662 S.E.2d 141,147 9 Ga. Ct. App. (2008). “As a general precept, damages for mental distress are not recoverable in the absence of physical injury where the claim is premised upon ordinary negligence. However, when the claim is for intentional misconduct, damages for mental distress may be recovered without proof of physical injury.” Clark, 196 Ga. App at 457-58; 395 S.E.2d at 886 (quoting Hamilton v. Powell, Goldstein, Frazer & Murphy, 252 Ga. 149, 150, 311 S.E.2d 818 (Ga. 1984)). 125. Defendants wrongfully and illegal performed a Sale Under Power, and unlawfully and illegally converted Plaintiff’s property, to their own use. 126. Defendants are banking institutions, mortgage servicers and licensed attorneys who are held to a high standard of honesty. 127. Defendants’ frauds and other misconduct upon the public and the judiciary for their financial benefit is reprehensible, unconscionable, outrageous and demands serious punitive damages to deter Defendants from further harming the public and deceiving the judiciary. 128. Plaintiff is entitled to punitive damages and attorney’s fee as a result of Defendants’ wrongful and fraudulent actions against him
129. By reason of the foregoing and as a direct, proximate, and foreseeable result of Defendants’ wrongful and fraudulent actions, Plaintiff have suffered loss and damages in the amount of $2,000,000.00. 130. WHEREFORE the further requests for Relief, will appear in Plaintiff’s Conclusion and Prayer for Relief, below. COUNT THREE WRONGFUL FORECLOSURE (Against All Defendants) 131. Plaintiff incorporates paragraphs one (1) through one hundred-thirty (130), all general paragraphs and all unnumbered paragraphs as if fully restated herein.
In Georgia, there exists a statutory duty upon the entity pursuing and causing
the Sale Under Power, to exercise fairly and in good faith, the power of sale. Although arising from a contractual right, breach of this duty is a tort, compensable at law. Clark v West, 196 Ga. App. 456, 395 S.E.2d 884 (1990).
The statutory requirements of O.C.G.A. §44-14-162.2 were violated by
defendants, as there was no Notice sent to Plaintiff by the Secured Creditor, clearly Citi was not the secured creditor, holder in due course, of the promissory Note
The fact that the Security instrument and the Note had been separated causes
the loan to become unsecured; there is a break in the chain of title; the sale was not conducted fairly and in good-faith as required by O.C.G.A. §23-2-114, all constitute a tort for wrongful foreclosure.
135. Defendants’ actions were willful, wanton and knowingly performed with a complete disregard of Georgia’s Codes, Plaintiff’s Rights, and the consequences of doing so; Plaintiff is thereby entitled to an award of punitive damages. 136. Defendants’ above described actions constitute a tort of wrongful foreclosure under Georgia Law entitling Plaintiff to recover from defendants all damages caused by their tortuous conduct, including damages for severe emotional distress and punitive damages, as well as attorney’s fees (at such time Plaintiff is still attempting to locate and retain competent legal counsel).
WHEREFORE, Plaintiff seeks the Relief as set out in the Conclusion and
Prayer for Relief, below.
138. 139. 140. 141. 142. 143.
COUNT FOUR EQUITABLE RELIEF (Defendants Have Unclean Hands)
144. Plaintiff incorporates all preceding paragraphs, as if fully restated herein. 145. Plaintiff has no other adequate remedy at law or the violations, and injuries bestowed upon the Plaintiff by these defendants. 146. Due to fictional documents having been recorded into the real property records by defendants, or their agents, and masquerading as if they had legal authority to perform the acts they have, resulting in violations of the rules, Georgia Code, and the penal code, Plaintiff has been injured and suffered. 147. Defendants have unclean hands; they have had unclean hands, ever since they took the first step to pursue foreclosure and Sale Under Power. 148. When defendants began seeking to foreclose and preparing for a Sale Under Power of Plaintiff’s property, and they wrongfully took equitable rights when taking Plaintiff’s property.
As most every defendant will claim during wrongful foreclosure complaints
against them, “[h]e who would have equity must first do equity, and give effect to all equitable rights in the other party respecting the subject matter of the action.” O.C.G.A. §23-1-10 (2010).
Forging documents and entering them into County real property records, is not
giving effect to all of Plaintiff’s equitable rights.
“The unclean-hands maxim [refers] to inequity in which infects the cause of
action so that to entertain it would be a violation of conscious.” Partain v. Maddox,
227 Ga. 623, 637(4)(a) (182 SE2d 450)(1971).
To assert the doctrine successfully, a party must demonstrate that the
wrongdoing is directly related to the claim against which unclean hands is asserted. Adams v. Crowell, 157 Ga. App. 576, 577 92) (278 SE2d 151)(1981); see also Keystone Co. v. Excavator Co. 290 U.S. 240, 245 (54 SC 146, 78Led 293)(1933). 153. Defendants would have foreclosed and pursued Sale Under power, even had Plaintiff made a tender, that was obvious by their refusal to provide the proper payoff to Plaintiff, and refusal to convey the information he sought about the loan.
A tender is not required where the party to whom the offer is made states that it
will be refused if made. Nickelson v. Owenby, 208 Ga. 352 (66 SE2d 828); G. V. Corp. v. Bob Todd Realty Co., 102 Ga. App. 190 (115 SE2d 611).
"Where the tender is rejected without specifying the basis of the rejection, the
right to object is waived." Murry v. Lett, 219 Ga. 809 (136 SE2d 348).
WHEREFORE, Plaintiff seeks Relief as set forth below in the Conclusion and
Prayer for Relief. 157. 158. 159. 160. 161.
162. 163. 164. 165. 166. CONCLUSION AND PRAYER FOR RELIEF An actual case and controversy exists in that some or all of the Defendants, or their successors and assigns are attempting to deprive Plaintiff of her valuable right to own and use the subject real estate to which LEE E. FOWLER, had legal, rightful title and ownership. 1. There are only a few issues in this Case; a) b) c) d) e) Defendants Foreclosed on Plaintiff wrongfully, and he seeks to set-Aside an Defendants were not Holders in Due Course; Defendants owed Plaintiff the Duty of Good Faith and Fair Dealing Defendants Had Unclean Hands; Plaintiff suffered mentally and emotionally from defendants’ actions in which Unlawful Foreclosure;
they knowingly, willingly, wantonly, and intentionally performed acts to humiliate, and mentally harm Plaintiff, and cause him insecurity and nervousness. f) Defendants further interfered with Plaintiff’s valuable right to own, use, and enjoy the subject real estate; because the Defendant, or their successors and assigns, have illegally and wrongfully conducted a Sale Under Power of said real estate at a non-judicial foreclosure sale on June 7, 2011, under the color of law and without lawful authority to liquidate said property, contrary to the laws of the State of Georgia.
WHEREFORE PLAINTIFF PRAYS FOR THE FOLLOWING:
Plaintiff Prays that this Honorable Court will call a Jury of Plaintiff’s peers. Plaintiff Prays that this Honorable Court will find that defendants were not Holder in Due Course.
Plaintiff Prays that this Honorable Court will find that defendants violated fair faith in good dealing when they auctioned Plaintiff’s property at much less than it should have gone for, and that they themselves bought it, therefore purposeful that they did not try to get the best possible price for the property.
Plaintiff further Prays that this Honorable Court will find the defendants have unclean hands; and that they intentionally inflicted emotional distress upon the Plaintiff, making available damages to Plaintiff on that count as well.
Plaintiff Prays this Honorable Court will Set-Aside the Unlawful Foreclosure Sale, and Cancel the warranty deed under power.
Plaintiff Prays this Honorable Court sign an order granting continual injunction against the defendants, their successors, nominees, and/or assigns, and all others from further dispersing and damaging private property that legally should be titled to the Plaintiff;
As a result of some or all of the Defendant(s), and/or their successors, nominees, and/or assigns aforesaid violations, Plaintiff Prays this Honorable Court will find that defendants are liable to Plaintiff in an amount not less than
$500,000.00 and up to $2,000,000.00, for each and every violation, in an amount for the violations after proven;
Plaintiff further Prays that this Honorable Court will Grant the relief set out in any and all above paragraphs, including punitive damages and possible attorney’s fees, should Plaintiff locate and retain competent legal counsel, and any further Relief this court see just and fair under the circumstances of this action.
Further, Plaintiff Prays this Honorable Court will GRANT any further relief, that this Honorable Court sees as fair and just.
Respectfully submitted, this 26th day of September, 2011. By: __________________________ LEE E. FOWLER Pro Se 2815 Springrock Hill Trail Lawrenceville, GA 30043 678-851-6287 VERIFICATION I, LEE E. FOWLER, proceeding in propria persona, and under penalty of perjury state the following: I am over the age of 21 and competent to testify in all matters concerning the above stated; I have prepared and read the foregoing Complaint, which comes from my first-hand knowledge. knowledge and belief. Everything I have stated is true to the best of my
______________________________ LEE E. FOWLER Sworn to and Subscribed Before Me This 17th day of June, 2011
______________________________ NOTARY PUBLIC, State of Georgia My Commission Expires: __________________________ STATE OF GEORGIA County of FULTON AFFIDAVIT OF FRAUD/FORGERY LEE E. FOWLER personally appeared before me and took an Oath that the following is true and correct: I am the true and lawful owner of the property located at 2815 Springrock Hill Trail, Lawrenceville, Georgia 30043, in GWINNETT County; as such and contrary to the claims by MERS, or defendants CitiMortgage, Mortgage Research Center, McCurdy & Candler, LLC, or the Clerk of GWINNETT County, the Documents filed for Land Lot 148 of the 7th District of GWINNETT County, Georgia, Being Lot 40, Block B, of the Brook Forest Subdivision as per Plat Recorded in the Plat Book 59, Page 228, GWINNETT County, Georgia Record., that are on file, have been filed, in which there is a claim to the contrary, or signed by any employee of MERS and/or of McCurdy & Candler, LLC, had the power or authority to transfer “without recourse” the secured interest in my property, any documents that are contrary to my ownership, are either a product of fraud, or forgery, and/or the documents that led McCurdy & Candler, or any other entity, to come to the conclusion that they had authority or power to transfer the property from my name, were the product of fraud
and/or forgery, and was possibly obtained by illegal/criminal acts. LEE E. FOWLER Sworn to and Subscribed before me, this 26th day of Spetember, 2011 _________________________________ NOTARY PUBLIC, State of Georgia EXHIBIT 1: The Supreme Court Of Georgia Ruled In A Certification SUPREME COURT OF GEORGIA Atlanta March 25, 2011 EXHIBIT “1”
The Honorable Supreme Court met pursuant to adjournment. The following order was passed: It appearing that the enclosed opinion decides a second-term appeal, which must be concluded by the end of the April term on April 14, 2011, it is ordered that a motion for reconsideration, if any, must be filed and received in the Clerk’s office by 4:30 p.m. on Monday, April 4, 2011. SUPREME COURT OF THE STATE OF GEORGIA Clerk’s Office, Atlanta I hereby certify that the above is a true extract from the minutes of the Supreme Court of Georgia Witness my signature and the seal of said court hereto affixed the day and year last above written. In the Supreme Court of Georgia Decided: March 25, 2011 S10Q1564. U.S. BANK NATIONAL ASSOCIATION v. GORDON. NAHMIAS, Justice.
The United States District Court for the North District of Georgia has certified a question to this Court regarding the 1995 Amendment to OCGA § 44-14-33. See Ga. L. 1995, p. 1076, § 1. The question is whether the 1995 Amendment means that, in the absence of fraud, a security deed that is actually filed and recorded, and accurately indexed, on the appropriate county land records provides constructive notice to subsequent bona fide purchasers, where the security deed contains the grantor’s signature but lacks both an official and unofficial attestation (i.e., lacks attestation by a notary public and also an unofficial witness). For the reasons that follow, we answer the certified question in the negative. 1. In October 2005, Bertha Hagler refinanced her residence through the predecessorin-interest to U.S. Bank National Association (U.S. Bank) and granted the predecessor a first and a second security deed to her residence. The security deeds were recorded with the Clerk of the Fulton County Superior Court in November 2005, but the first security deed was not attested or acknowledged by an official or unofficial witness. According to the district court’s certification order: Gordon, the Chapter 7 Trustee in Hagler’s bankruptcy case, sought to avoid or set aside the valid, but unattested, first security deed to the residence through the “strong-arm” power of Section 544 (a) (3) of the Bankruptcy Code. See 11 U.S.C. § 544 (a) (3). Gordon argued that under the proper interpretation of § 44-14-33 of the Georgia Code, a security deed that is not attested by an official and unofficial witness cannot provide constructive notice to a subsequent purchaser even if it is recorded. U.S. Bank argued, in opposition, that a 1995 amendment to § 44-14-33 changed the law to enable an unattested security deed to provide constructive notice. Gordon argued in response that the 1995 amendment served only to recognize constructive notice from a security deed with a “latently” defective attestation, meaning an irregular attestation that appears regular on its face; a deed with a
“patently” defective attestation, meaning an attestation that is obviously defective on its face, would not provide constructive notice. The bankruptcy court ruled in Gordon’s favor, concluding that, under the 1995 Amendment, a security deed with a facially defective attestation would not provide constructive notice, while a security deed with a facially proper but latently defective attestation would provide constructive notice. See Gordon v.U.S. Bank Natl. Assn. (In re Hagler), 429 BR 42, 47-53 (Bankr. N.D. Ga. 2009). Concluding that the issue involved an unclear question of Georgia law and that no Georgia court had addressed the issue after the 1995 Amendment, the District court certified the question to this Court. We conclude that the bankruptcy court properly resolved the issue. 2. OCGA § 44-14-61 provides that “[i]n order to admit deeds to secure debt . . . to record, they shall be attested or proved in the manner prescribed by law for mortgages.” OCGA § 44-14-33 provides the law for attesting mortgages: In order to admit a mortgage to record, it must be attested by or acknowledged before an officer as prescribed for the attestation or acknowledgment of deeds of bargain and sale; and, in the case of real property, a mortgage must also be attested or acknowledged by one additional witness. In the absence of fraud, if a mortgage is duly filed, recorded, and indexed on the appropriate county land records, such recordation shall be deemed constructive notice to subsequent bona fide purchasers. The second sentence of this Code section was added by the 1995 Amendment. 3. We first address Gordon’s contention that the 1995 Amendment does not apply at all to security deeds. He contends that only the first sentence of § 44-14-33, which expressly deals with attestation, is applicable to security deeds through § 4414-61 and that, because the 1995 Amendment addresses constructive notice, it does not apply to security deeds. We disagree. The General Assembly chose to enact the 1995 Amendment not as a freestanding Code provision but as an addition to a Code provision clearly referenced by § 44-14-61. Moreover, “[t]he objects of a mortgage
and security deed . . . under the provisions of the Code are identical – security for a debt. While recognizing the technical difference between a mortgage and security deed hereinbefore pointed out, this court has treated deeds to secure debts . . . as equitable mortgages.” Merchants & Mechanics’ Bank v. Beard, 162 Ga. 446, 449 (134 SE 107) (1926). The General Assembly is presumed to have been aware of the existing state of the law when it enacted the 1995 Amendment, see Fair v. State, 288 Ga. 244, 252 (702 SE2d 420) (2010), so the placement of the amendment makes complete sense. Indeed, no reason has been suggested why the General Assembly would want the same type of recording to provide constructive notice for mortgages but not for security deeds. Accordingly, we conclude that the 1995 Amendment is applicable to security deeds. 4. Turning back to the certified question, we note that the “recordation” that is deemed to provide constructive notice to subsequent purchasers clearly refers back to “duly filed, recorded, and indexed” deeds. U.S. Bank argues that a “duly filed, recorded, and indexed” deed is simply one that is in fact filed, recorded, and indexed, even if unattested by an officer or a witness. We disagree. Particular words of statutes are not interpreted in isolation; instead, courts must construe a statute to give “‘“sensible and intelligent effect” to all of its provisions,’” Footstar, Inc. v. Liberty Mut. Ins. Co., 281 Ga. 448, 450 (637 SE2d 692) (2006) (citation omitted), and “must consider the statute in relation to other statutes of which it is part.” State v. Bowen, 274 Ga. 1, 3 (547 SE2d 286) (2001). In particular, “statutes ‘in pari materia,’ i.e., statutes relating to the same subject matter, must be construed together.” Willis v. City of Atlanta, 285 Ga. 775, 776 (684 SE2d 271) (2009). Construing the 1995 Amendment in harmony with other recording statutes and longstanding case law, we must reject U.S. Bank’s definition of “duly filed, recorded, and indexed.” Its definition ignores the first sentence of § 44-14-33, which provides that to admit a security deed to record, the deed must be attested by or acknowledged
before an officer, such as a notary public, and, in the case of real property, by a second witness. See OCGA § 44-2-15 (listing the “officers” who are authorized to attest a mortgage or deed). Other statutes governing deeds and mortgages similarly preclude recording and constructive notice if certain requirements are not satisfied. See OCGA § 44-2-14 (“Before any deed to realty or personality or any mortgage, bond for title, or other recordable instrument executed in this state may be recorded, it must be attested or acknowledged as provided by law.”); OCGA § 44-14-61 (“In order to admit deeds to secure debt or bills of sale to record, they shall be attested or proved in the manner prescribed by law for mortgages”). Indeed, U.S. Banks’ construction of the 1995 Amendment contradicts OCGA § 44-14-39, which provides that “[a] mortgage which is recorded . . . without due attestation . . . shall not be held to be notice to subsequent bona fide purchasers.” Thus, the first sentence of § 44-14-33 and the statutory recording scheme indicate that the word “duly” in the second sentence of § 44-14-33 should be understood to mean that a security deed is “duly filed, recorded, and indexed” only if the clerk responsible for recording determines, from the face of the document, that it is in the proper form for recording, meaning that it is attested or acknowledged by a proper officer and (in the case of real property) an additional witness. This construction of the 1995 Amendment is also consistent with this Court’s longstanding case law, which holds that a security deed which appears on its face to be properly attested should be admitted to record, see Thomas v. Hudson, 190 Ga. 622, 626 (10 SE2d 396) (1940); Glover v. Cox, 137 Ga. 684, 691-694 (73 SE 1068) (1912), but that a deed that shows on its face that it was “not properly attested or acknowledged, as required by statute, is ineligible for recording.” Higdon v. Gates, 238 Ga. 105, 107 (231 SE2d 345) (1976). We note that at the time the 1995 Amendment was considered and enacted, the appellate courts of this State had “never squarely considered” whether a security deed with a facially valid attestation could provide constructive notice where the attestation
contained a latent defect, like the officer or witness not observing the grantor signing the deed. Leeds Bldg. Prods. v. Sears Mortg. Corp., 267 Ga. 300, 301 (477 SE2d 565) (1996). The timing of the amendment suggests that the General Assembly was attempting to fill this gap in our law as the Leeds litigation worked its way through the trial court and the Court of Appeals before our decision in 1996. See Gordon, 429 BR at 50. We ultimately decided in Leeds that, “in the absence of fraud, a deed which, on its face, complies with all statutory requirements is entitled to be recorded, and once accepted and filed with the clerk of court for record, provides constructive notice to the world of its existence.” 267 Ga. at 302. We noted that Higdon remained good law, because in that case the deed was facially invalid, did “not entitle [the deed] to record,” and “did not constitute constructive notice to subsequent purchasers.” Leeds, 267 Ga. at 302. Because we reached the same result as under the 1995 Amendment, we did not have to consider whether the amendment should be applied retroactively to that case. See id. at 300 n.1. Our interpretation of the 1995 Amendment also is supported by commentators that have considered the issue. See Frank S. Alexander, Georgia Real Estate Finance and Foreclosure Law, § 8-10, p. 138 (4th ed. 2004) (stating that “[a] security deed that is defective as to attestation, but without facial defects, provides constructive notice to subsequent bona fide purchasers”); Daniel F. Hinkel, 2 Pindar’s Georgia Real Estate Law and Procedure, § 20-18 (6th ed. 2011) (without mentioning deeds with facial defects, explaining that the 1995 Amendment to § 44-14-33 and Leeds “provide that in the absence of fraud a deed or mortgage, which on its face does not reveal any defect in the acknowledgment of the instrument and complies with all statutory requirements, is entitled to be recorded, and once accepted and filed with the clerk of the superior court for record, provides constructive notice to subsequent bona fide purchasers”); T. Daniel Brannan & William J. Sheppard, Real Estate, 49 Mercer L. Rev. 257, 263 (Fall 1997) (without mentioning deeds with facial defects, stating that
the 1995 Amendment to § 44-14-33 resolves “the issue that was before the court in [Leeds]”). As noted by the bankruptcy court, if Hinkel and the law review authors thought that the 1995 Amendment altered longstanding law with regard to deeds containing facial defects as to attestation, they surely would have said so. See Gordon, 429 BR at 52-53. Finally, it should be recognized that U.S. Bank’s interpretation of the 1995 Amendment to § 44-14-33 “would relieve lenders of any obligation to present properly attested security deeds” and “would tell clerks that the directive to admit only attested deeds is merely a suggestion, not a duty,” and this would risk an increase in fraud because deeds no longer would require an attestation by a public officer who is sworn to verify certain information on the deeds before they are recorded and deemed to put all subsequent purchasers on notice. Gordon, 429 BR at 51-52. Moreover, while “it costs nothing and requires no special expertise or effort for a closing attorney, or a lender, or a title insurance company to examine the signature page of a deed for missing signatures before it is filed,” U.S. Bank’s construction would “shift to the subsequent bona fide purchaser and everyone else the burden of determining [possibly decades after the fact] the genuineness of the grantor’s signature and therefore the cost of investigating and perhaps litigating whether or not an unattested deed was in fact signed by the grantor.” Id. at 52. For these reasons, we answer the certified question in the negative. Certified question answered. All the Justices concur.