Banks v. Wells Fargo Bank, NA et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM with Brief In Support

N.D. Ga.July 28, 2016

1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION SHARRON KIMIN BANKS (Potential Anneewakee Falls Homeowners) (Potential Anneewakee Trials Homeowners) Civil Action File No. 1:16-cv-01617-RWS-JFK Plaintiff, v. WELLS FARGO BANK, N.A., WELLS FARGO HOME MORTGAGE.; MERSCORP HOLDINGS, INC., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., MORRIS HARDWICK SCHNEIDER, LLC, US BANK NATIONAL ASSOCIATION; SOUTHSTAR FUNDING, LLC, WEEKLY HOMES, LP; FEDERAL RESERVE SYSTEM; HSBC BANK USA, N.A., TRUSTEE, ON BEHALF OF CERTIFICATE HOLDS OF ASSET BACKED SECURITIES CORPORATION LOAN TRUST SERIES WFHET 2005-1; SECURITIES EXCHANGE COMMISSION; ALDRIDGE PITE, LLP (FORMERLY ALDRIDGE CONNORS, LLP); RUSSEL VINEYARD, UNITED STATES COMMISSIONERS IN THE INDIVIDUAL AND OFFICIAL CAPACITY, CLERK OF COURT ATTORNEY GENERAL FOR THE STATE OF GA. Defendant. Case 1:16-cv-01617-RWS-JFK Document 38 Filed 07/28/16 Page 1 of 4 2 DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT COME NOW Defendants Mortgage Electronic Registration Systems, Inc., ("MERS"), MERSCORP Holdings, Inc. ("MERSCORP"), and U.S. Bank National Association, as Trustee for MASTR Asset Backed Securities Trust 2005-WF1 ("U.S. Bank") (collectively referred to as the "Defendants"), the properly named Defendants, and by special appearance, and by and through their undersigned counsel move this honorable Court to dismiss Plaintiff's Complaint pursuant to Fed. R. Civ. P. 12(b). This motion is based upon the allegations contained in Plaintiff's Complaint, the supporting Brief filed with this Motion, and all other pleadings of record. WHEREFORE, the Defendants respectfully request that the Court grant this Motion, dismiss Plaintiff's Complaint with prejudice, and tax Plaintiff with all costs of this action. Respectfully submitted, this 28th day of July, 2016. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. Monarch Plaza, Suite 1600 3414 Peachtree Road, N.E. Atlanta, Georgia 30326 Phone: (404) 577-6000 dhoward@bakerdonelson.com dmoore@bakerdonelson.com / s/ Daniel P. Moore Dylan W. Howard -GA Bar No. 370267 Daniel P. Moore - GA Bar No. 940480 Attorneys for Defendants Mortgage Electronic Registration Systems, Inc., MERSCORP Holdings, Inc., and U.S. Bank National Association, as Trustee for MASTR Asset Backed Securities Trust 2005-WF1 1 Case 1:16-cv-01617-RWS-JFK Document 38 Filed 07/28/16 Page 2 of 4 3 CERTIFICATE OF SERVICE This is to certify that I have this day served all parties in the foregoing matter with a copy of DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT by the CM/ECF online filing system with the U.S. District Court for the Northern District of Georgia which will automatically send email notification to all counsel of record or by U.S. First Class Mail, postage prepaid and properly addressed upon the following: Sharron Kimin Banks, pro se 4675 Lightning Bolt Trail Douglasville, Georgia 30135 via U.S. First Class Mail only Dallas R. Ivey Kimberly R. Weber Allison S. Giardina Larry J. Jones Aldridge Pite, LLP Fifteen Piedmont Center 3575 Piedmont Road NE Suite 500 Atlanta, Georgia 30305 via CM/ECF only John C. Amabile Schiff Hardin, LLP One Atlantic Center, Suite 2300 1201 West Peachtree Street, N.W. Atlanta, Georgia 30309 via CM/ECF only Case 1:16-cv-01617-RWS-JFK Document 38 Filed 07/28/16 Page 3 of 4 4 This 28th day of July, 2016. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. Monarch Plaza, Suite 1600 3414 Peachtree Road, N.E. Atlanta, Georgia 30326 Phone: (404) 577-6000 Facsimile: (404) 221-6501 dmoore@bakerdonelson.com / s/ Daniel P. Moore Daniel P. Moore Georgia Bar No. 940480 Attorney for Defendants Mortgage Electronic Registration Systems, Inc., MERSCORP Holdings, Inc., and U.S. Bank National Association, as Trustee for MASTR Asset Backed Securities Trust 2005-WF1 Case 1:16-cv-01617-RWS-JFK Document 38 Filed 07/28/16 Page 4 of 4 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION SHARRON KIMIN BANKS (Potential Anneewakee Falls Homeowners) (Potential Anneewakee Trials Homeowners) Civil Action File No. 1:16-cv-01617-RWS-JFK Plaintiff, v. WELLS FARGO BANK, N.A., WELLS FARGO HOME MORTGAGE.; MERSCORP HOLDINGS, INC., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., MORRIS HARDWICK SCHNEIDER, LLC, US BANK NATIONAL ASSOCIATION; SOUTHSTAR FUNDING, LLC, WEEKLY HOMES, LP; FEDERAL RESERVE SYSTEM; HSBC BANK USA, N.A., TRUSTEE, ON BEHALF OF CERTIFICATE HOLDS OF ASSET BACKED SECURITIES CORPORATION LOAN TRUST SERIES WFHET 2005-1; SECURITIES EXCHANGE COMMISSION; ALDRIDGE PITE, LLP (FORMERLY ALDRIDGE CONNORS, LLP); RUSSEL VINEYARD, UNITED STATES COMMISSIONERS IN THE INDIVIDUAL AND OFFICIAL CAPACITY, CLERK OF COURT ATTORNEY GENERAL FOR THE STATE OF GA. Defendant. Case 1:16-cv-01617-RWS-JFK Document 38-1 Filed 07/28/16 Page 1 of 15 2 BRIEF IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT COME NOW Defendants Mortgage Electronic Registration Systems, Inc., ("MERS"), MERSCORP Holdings, Inc. ("MERSCORP"), and U.S. Bank National Association, as Trustee for MASTR Asset Backed Securities Trust 2005-WF1 ("U.S. Bank") (collectively referred to as the "Defendants"), the properly named Defendants, by special appearance and through their undersigned counsel, and show this Honorable Court that Plaintiff's Complaint should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) as follows: INTRODUCTION Plaintiff Sharron Kimin Banks1 (“Plaintiff”) claims against MERS, MERSCORP and U.S. Bank are based on a "junior lien" which was satisfied and canceled in November, 2011 rather than the "mortgage loan" that was the subject of the non-judicial foreclosure sale which provided the basis for Plaintiff's substantive claims. The junior lien is a completely separate transaction. As a result, MERS, MERSCORP, nor U.S. Bank had any involvement with the 1 Plaintiff appears to have also filed suit on behalf of "Potential Anneewakee Falls Homeowners" and "Potential Anneewakee Trails Homeowners". To the extent these entities and/or individuals allege claims against the Defendants, the Defendants object to such claims on the grounds that Plaintiff does not appear to be a licensed attorney and there cannot represent other entities or individuals in this Court. Case 1:16-cv-01617-RWS-JFK Document 38-1 Filed 07/28/16 Page 2 of 15 3 mortgage loan, the assignment of the security deed related to the mortgage loan, or any efforts to foreclose on the property at issue. Moreover, any claim relating to the junior lien's origination, assignment, or satisfaction would be barred by the statute of limitations. For each of these independently sufficient reasons, the Defendants respectfully request that this Court grant their Motion to Dismiss and dismiss this lawsuit against them with prejudice. STATEMENT OF FACTS On or about April 15, 2005, Plaintiff obtained a second mortgage loan (the "Second Mortgage ") from SouthStar Funding, LLC ("SouthStar") in the original principal amount of $39,771.00. To ensure payment of the Second Mortgage, Plaintiff executed a Security Deed (the "Second Security Deed") in favor of MERS as grantee and nominee for SouthStar and SouthStar's successors and assigns. The Second Security Deed is recorded at Deed Book 2141, Pages 502 - 510, Douglas County, Georgia records and is attached hereto as Exhibit "A." 2 2A federal court, at any stage of the proceeding, “may judicially notice a fact that is not subject to reasonable dispute because it…can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b) and (d). The court may take judicial notice on its own or if a party requests it and the court is supplied with the necessary information. Fed. R. Evid. 201(c). Specifically, a court may take judicial notice of public property records, such as security deeds or assignments of security deeds, where those records are attached to a party’s motion. Taylor v. Johnson & Freedman, LLC, 2009 U.S. Dist. LEXIS 130825 at *14-15 (N.D. Ga. 2009) (taking judicial notice of property Case 1:16-cv-01617-RWS-JFK Document 38-1 Filed 07/28/16 Page 3 of 15 4 On or about May 13, 2011, MERS assigned the Second Security Deed to U.S. Bank. The Assignment is recorded at Deed Book 2937, Page 944, Douglas County, Georgia Records and is attached hereto as Exhibit "B." On November 4, 2011, the Second Mortgage was paid in full and the Second Security Deed was discharged. The Discharge is recorded at Deed Book 2975, Page 83, Douglas County, Georgia Records and is attached hereto as Exhibit "C." MERSCORP was not directly involved with any transaction involving Plaintiff. STANDARD OF REVIEW Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes this Court to dismiss Plaintiff's lawsuit against the Defendants because Plaintiff has failed to state any claim upon which relief can be granted. “[A] pleading cannot survive dismissal when it consist[s] only the barest of conclusory allegations without notice of the factual grounds on which they purport to be based.” Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1271 (11th Cir. 2004). “Dismissal for failure to state a claim is proper if the factual allegations are not enough to raise a right to relief above the speculative level.” Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010) (internal quotations and citations omitted). That is, “a records attached to a lender’s motion to dismiss a borrower’s suit challenging the validity of a nonjudicial foreclosure sale, in part, because the records were “central to and referenced in Plaintiff’s complaint"). For the convenience of the Court, copies of the recorded instruments are attached hereto. Case 1:16-cv-01617-RWS-JFK Document 38-1 Filed 07/28/16 Page 4 of 15 5 complaint must be dismissed when a plaintiff fails to plead enough facts to state a claim to relief that is plausible on its face.” White v. Clayton Cnty. Sheriff, Civ. No. 1:10-cv-1343-WSD, 2010 WL 2196593, *1 (N.D. Ga. May 28, 2010) (internal quotations and citations omitted) (emphasis added). Further, “[i]f the allegations . . . show that relief is barred by the applicable state of limitations, the complaint is subject to dismissal for failure to state a claim.” Jones v. Bock, 549 U.S. 199, 215 (2007). A cause of action fails to state a “claim upon which relief can be granted” if, inter alia, it fails to comply with the requirements of Rule 8(a)(2) of the Federal Rules of Civil Procedure. See Buerger v. Southwestern Bell Tel. Co., 982 F. Supp. 1247, 1249-50 (E.D. Tex. 1997); Bank of Abbeville & Trust Co. v. Commonwealth Land Title Ins. Co., 201 F. Appx. 988, *2 (5th Cir. Oct. 9, 2006) (“a Rule 12(b)(6) motion to dismiss for failure to state a claim may be a proper vehicle to challenge the sufficiency of a pleading under Rule 8”). Rule 8 requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). In the recent case of Ashcroft v. Iqbal, the United States Supreme Court clearly stated that Rule 8 does not “require detailed factual allegations, but it demands more than an unadorned, the- defendant-unlawfully-harmed-me accusation.” 129 S. Ct. 1937, 1949 (2009) Case 1:16-cv-01617-RWS-JFK Document 38-1 Filed 07/28/16 Page 5 of 15 6 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007)). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Id. ARGUMENTS AND CITATION OF AUTHORITY I. PLAINTIFF'S COMPLAINT SHOULD BE DISMISSED BECAUSE IT FAILS TO MEET THE BASIC FEDERAL PLEADING STANDARD. The allegations in Plaintiff's Complaint fail to meet the basic Federal pleading standard. Fed. R. Civ. P. 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” In the case of Ashcroft v. Iqbal, the United States Supreme Court held that Rule 8 does not "require detailed factual allegations, but it demands more than an unadorned, the-defendant- unlawfully-harmed-me accusation." 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007)). "A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do." Id. In Bell Atlantic Corp. v. Twombly, the Supreme Court stated that "Rule 8(a)(2) still requires a showing rather than a blanket assertion, of entitlement to relief…[w]ithout some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only fair notice of the nature of the claim, but also grounds on which the claim rests.” 127 S. Ct. 1955, 1964-65 (2007). Case 1:16-cv-01617-RWS-JFK Document 38-1 Filed 07/28/16 Page 6 of 15 7 Plaintiff's Complaint fails to adequately plead what actions or omissions MERS, MERSCORP, or U.S. Bank committed that provide the basis for any of her claims. Plaintiff lumps her allegations related to her first mortgage loan and the Second Mortgage together while making a blanket reference to all Defendants. As such, the Defendants are forced to speculate to their detriment as to what claims and facts Plaintiff is actually alleging against them. Accordingly, because Plaintiff has failed to provide a statement of her claims that would satisfy the pleading requirements under Twombly, and its progeny, the Court should dismiss Plaintiff's Complaint pursuant to Fed. R. Civ. P. 8(a)(2). II. PLAINTIFF FAILED TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED. A. Plaintiff's Claims Are Barred By Applicable Statute of Limitations. Plaintiff's vague claims against the Defendants are barred by the applicable statute of limitations. Fraud and misrepresentation claims are subject to a four- year statute of limitations. O.C.G.A. § 9-3-31. RESPA claims are subject to either a one or three year statute of limitations, depending on the nature of the alleged violation and the requested remedy. See 12 U.S.C. § 2614. TILA, damages claims are subject to a one year statute of limitations. See 15 U.S.C. §§ 1640. Case 1:16-cv-01617-RWS-JFK Document 38-1 Filed 07/28/16 Page 7 of 15 8 Additionally, a party seeking rescission under TILA must rescind within three years of the closing of the loan. 15 U.S.C. § 1635(f). Here, the Second Mortgage was originated on April 15, 2005, assigned on May 13, 2011 and discharged on November 4, 2011. See Exhs. "A," "B," and "C." Therefore, any claim based on the origination of the Second Mortgage would have expired on April 15, 2009 and any claim based the discharge of the Second Mortgage would have expired on November 4, 2015, at the least. Plaintiff did not file her lawsuit until this year; therefore, her claims against the Defendants, such that they are, are barred by the applicable statute of limitations. B. Plaintiff's Vague Claims Against The Defendants Fail To State a Claim. Plaintiff's claims (insofar as she has made claims against the Defendants, which the Defendants dispute) appear to be based on MERS' assignment to U.S. Bank. [ECF No. 1, ¶¶89-90] see also Ex. "B." Plaintiff challenges the Assignment based on the assertion that "MERS has been declared illegal to assign or transfer any properties." [ECF No. 1, ¶85.] Further, Plaintiff appears to assert that she conveyed a benefit to MERS, which entitles her to damages. However, there is a litany of case law describing and validating MERS's role in the mortgage loan process. See, e.g., Taylor, Bean & Whitaker Mortgage Corp., et. al. v. Brown, 276 Ga. 848 (2003). Moreover, Plaintiff lacks standing to challenge the Assignment in Case 1:16-cv-01617-RWS-JFK Document 38-1 Filed 07/28/16 Page 8 of 15 9 the first place. See Ames v. JP Morgan Chase Bank, N.A., S15G1007, 2016 WL 854582 (Ga. Mar. 7, 2016); see also Montgomery v. Bank of America, 321 Ga. App. 343, 345 (2013); Larose v. Bank of America, 321 Ga. App. 465 468 (2013). Accordingly, there is no factual basis or support in law to Plaintiff's claims against MERS, MERSCORP, and/or U.S. Bank and any such claims should be dismissed. Next, because neither MERS, MERSCORP, nor U.S. Bank actually originated the Second Mortgage, Plaintiff's vague claim of predatory lending is not properly alleged against them. Furthermore, the Second Mortgage Loan and the first mortgage loan were separate loan transactions. Plaintiff has not properly alleged that MERS and/or U.S. Bank were involved in the origination, servicing, or foreclosure of the first mortgage loan, the foreclosure of which Plaintiff is attempting to enjoin. As a result, MERS, MERSCORP and U.S. Bank are not proper parties to any such claim. In sum, Plaintiff obtained a Second Mortgage Loan and executed a Second Security Deed in favor of MERS, as nominee for her lender and such lender’s successors and assigns. MERS then assigned the Security Deed to U.S. Bank. Plaintiff then satisfied the Second Mortgage Loan and Second Security Deed was canceled. These allegations do not support a claim as a matter of law. The Defendants Motion to Dismiss should therefore be granted. Case 1:16-cv-01617-RWS-JFK Document 38-1 Filed 07/28/16 Page 9 of 15 10 C. Plaintiff's Complaint does not assert any claim against MERSCORP. Plaintiff's Complaint does not include a single factual allegation of wrongdoing by MERSCORP. In fact, other than the case caption, there is not a single mention of MERSCORP in the body of the Complaint. Accordingly, Plaintiff has not stated a claim and her Complaint should be dismissed as to MERSCORP. III. PLAINTIFF FAILED TO PROPERLY SERVE MERS OR U.S. BANK WITH THE COMPLAINT AND SUMMONS. Plaintiff failed to properly serve U.S. Bank or MERS in accordance with either the Federal or Georgia law. The Federal Rules of Civil Procedure provide several ways to effect proper service upon a corporation, partnership or association. F.R.C.P. 4(h)(1)(b) provides that a may be served: … by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and--if the agent is one authorized by statute and the statute so requires--by also mailing a copy of each to the Defendants. F.R.C.P. 4(h)(1)(b). In addition, Georgia law provides that a corporation can be served by mail only where the corporation has failed to maintain a registered agent in Georgia. O.C.G.A. § 14-2-504(b). Such service must be addressed to the secretary of the corporation at its principal office and a copy of the process must Case 1:16-cv-01617-RWS-JFK Document 38-1 Filed 07/28/16 Page 10 of 15 11 also be served upon the Secretary of State. O.C.G.A. § 14-2-1510(b). After the sufficiency of service of process has been challenged, the Plaintiff bears the burden to establish that service was valid. Sanders v. Fluor Daniel, Inc., 151 F.R.D. 138, 139 (M.D. Fla. 1993) (citing Systems Signs Supplies v. U.S. Dept. of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990)). A pro se party is not excused from complying with the procedural rules. Id.; see also Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002). The fact that the Defendants obtained actual notice of the suit does not cure defective service. Manufacturers Hanover Trust Co. v. Ponsoldt, 51 F.3d 938, 940 (11th Cir. 1995). The Docket is devoid of any attempt at service on MERS or U.S. Bank. Accordingly, since MERS and U.S. Bank have not been properly served, this Court lacks jurisdiction over U.S. Bank or MERS and Plaintiff’s claims should be dismissed. CONCLUSION Plaintiff's Complaint does not state a claim related to the Second Mortgage or Second Security Deed. As a result of this failure to lay proper grounds for her Complaint against the Defendants, Plaintiff's lawsuit should be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(6). Finally, the Court should grant the Defendants their costs and expenses in having to defend this action. Case 1:16-cv-01617-RWS-JFK Document 38-1 Filed 07/28/16 Page 11 of 15 12 Respectfully submitted, this 28th day of July, 2016. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. Monarch Plaza, Suite 1600 3414 Peachtree Road, N.E. Atlanta, Georgia 30326 Phone: (404) 577-6000 dhoward@bakerdonelson.com dmoore@bakerdonelson.com / s/ Daniel P. Moore Dylan W. Howard Georgia Bar No. 370267 Daniel P. Moore Georgia Bar No. 940480 Attorneys for Defendants Mortgage Electronic Registration Systems, Inc., MERSCORP Holdings, Inc., and U.S. Bank National Association, as Trustee for MASTR Asset Backed Securities Trust 2005-WF1 1 Case 1:16-cv-01617-RWS-JFK Document 38-1 Filed 07/28/16 Page 12 of 15 13 FONT CERTIFICATION The undersigned counsel for Defendants Mortgage Electronic Registration Systems, Inc., MERSCORP Holdings, Inc. and U.S. Bank National Association hereby certifies that the within and foregoing was prepared using Times New Roman 14-point font in accordance with Local Rule 5.1. This 28th day of July, 2016. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. Monarch Plaza, Suite 1600 3414 Peachtree Road, N.E. Atlanta, Georgia 30326 Phone: (404) 577-6000 Facsimile: (404) 221-6501 dmoore@bakerdonelson.com / s/ Daniel P. Moore Daniel P. Moore Georgia Bar No. 940480 Attorney for Defendants Mortgage Electronic Registration Systems, Inc., MERSCORP Holdings, Inc., and U.S. Bank National Association, as Trustee for MASTR Asset Backed Securities Trust 2005-WF1 Case 1:16-cv-01617-RWS-JFK Document 38-1 Filed 07/28/16 Page 13 of 15 14 CERTIFICATE OF SERVICE This is to certify that I have this day served all parties in the foregoing matter with a copy of BRIEF IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT by the CM/ECF online filing system with the U.S. District Court for the Northern District of Georgia which will automatically send email notification to all counsel of record or by U.S. First Class Mail, postage prepaid and properly addressed upon the following: Sharron Kimin Banks, pro se 4675 Lightning Bolt Trail Douglasville, Georgia 30135 via U.S. First Class Mail only Dallas R. Ivey Kimberly R. Weber Allison S. Giardina Larry J. Jones Aldridge Pite, LLP Fifteen Piedmont Center 3575 Piedmont Road NE Suite 500 Atlanta, Georgia 30305 via CM/ECF only John C. Amabile Schiff Hardin, LLP One Atlantic Center, Suite 2300 1201 West Peachtree Street, N.W. Atlanta, Georgia 30309 via CM/ECF only Case 1:16-cv-01617-RWS-JFK Document 38-1 Filed 07/28/16 Page 14 of 15 15 This 28th day of July, 2016. BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. Monarch Plaza, Suite 1600 3414 Peachtree Road, N.E. Atlanta, Georgia 30326 Phone: (404) 577-6000 Facsimile: (404) 221-6501 dmoore@bakerdonelson.com / s/ Daniel P. Moore Daniel P. Moore Georgia Bar No. 940480 Attorney for Defendants Mortgage Electronic Registration Systems, Inc., MERSCORP Holdings, Inc., and U.S. Bank National Association, as Trustee for MASTR Asset Backed Securities Trust 2005-WF1 Case 1:16-cv-01617-RWS-JFK Document 38-1 Filed 07/28/16 Page 15 of 15 RETURN TO: Marlstliaadtteitgaysidit 800 Commarcs Dein Suite 202 Pear-have Citx OA 3021111 .Anier Recordation Rettirri to: SouthStar Funding, LLC 400 Northridge Road. Suite 1000, Atlanta, GEORGIA 30350 AlVIRANINEW LEI liII Con IC: CO0934030009 Tope: GLR Filed: 04/20/ 2005 at 09:18:00 AM Fee Ant: Pace 1 of 9 CoJalas County Georaia raurtC;Indv Chaffin Clerk Suoerlcr B.2141 PG502-510 SECURITY DEED THIS DEED is made this 15th. day of April. 2005 Sharron K Banks, Unmarried Woman MIN 100190825300003595 , between the Grantor, GEORGIA INTANGIBLE TAX PAID $ ta () /50 DATE If' '0 CINDY W. CHAFFIN, CSC (herein "Borrower"), and the Grantee, Mortgage Electronic Registration. Systems, Inc., ("81012.5"), solely as nominee for Lender, as hereinafter defined. and Lender's successors and assigns). NIERS is organized and existinn under the laws of Delaware and has an address and telephone number of P.O. Box 2026, Flint, MI 48501-2026, tel. (888} 679-MERS. SouthStar Funds ng , LLC ("Lender") is organized and existing under the laws of DELAWARE and has tm addre.s: cif 403 Northridge Road Suite 1000 Atlanta, GEORGIA 30350 WHEREAS, Borrower is indebted to Lender in the principal sum of U.S. S 39.771.00 which indebtedness is evidenced by Borrower's note dated Apr i 1 15 , 2005 and extensions and renewals thereof (herein "Note"), providing for monthly installments of principal and interest, with the balance of the indebtedness, if not sooner paid, due and payable on May 01, 2035 TO SECURE to Lender the repayment of the indebtedness evidenced by the Note, with interest thereon: the payment of ail other sums, with interest thereon, advanced in accordance herewith to protect the security of this Deed to Secure Debt; and the performance of the covenants and agreements of Borrower herein contained, Harrower does hereby grant and convey to MFRS, (solely as nominee for Lender and Lender's successors and assigns), and the successors and aStiitMS of MERS, with power of sale. the following described property located in the County of Doug- es which has the address of 4675 Lightning Bolt Trail Douglasville ;eay,iGeoreia 30135 2530000359 GEORGIA - SECOND MORTGAGE - 1/80 - FNMA/FHLMC UNIFORM INSTRUMENT WITH MERS 75NI(G A ; 35/, c't 0.0,1,•5454 Form 3811 A mariderl 7192 . State of Georgia: Smell Codej (herein "Property Address"): Case 1:16-cv-01617-RWS-JFK Document 38-2 Filed 07/28/16 Page 1 of 9 2 TO HAVE AND TO HOLD such property unto MERS (solely as nominee for Lender and Lender's successors and assigns) and to the sucessors and assigns of MERS, forever, together with all rim improvements now or hereafter erected on the property, and all easements, rights, appurtenances and rents, all of which shall be deemed to be and remain a tact of the property covered by this Deed; and all of the foregoing, together with said property (or the leasehold estate if this Deed is on a leasehold) ate hereinafter referred to as the "Property." Borrower understands and agrees that NIERS holds only legal title to the interests granted by Borrower in this Deed; but, if necessary to comply with law or custom, NIERS, (as nominee tint Lender and Lenders successors and assigns), has [lie right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing or canceling this Deed. Borrower covenants that Borrower is lawfully seised of the estate hereby conveyed and has the right to greet and convey the Property, and that the Property is unencumbered, except for encumbrances of record. Borrower covenants that Borrower warrants and will defend generally, the title to the Property against all claims and demands, subject to eneurnbrances of record. UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows: I. Payment of Principal and Interest. Borrower shall promptiy pay when due the principal and interest indebtedness evidenced by the Note and late charges as provided its the Note. 2. Funds for Taxes and Insurance. Subject to applicable law or a written waiver by Lender, Borrower shall pay to Lender on the day monthly payments of principal and interest are payable under the Note, until the Note is paid in fell, a sum (herein "Funds") equal to one-twelfth of the yearly taxes and assessments (including condominium and planned unit development assessments, if any) which may attain priority over this Deed, and ground rents on the Property, if any, plus one-twelfth of yearly premium installments for hazard insurance, plus one-twelfth of yearly premium installments for mortgage insurance, if any, all as reasonably estimated initially and from time to time by Lender on the basis of assessments arid hills and reasonable estimates thereof. Borrower shall not be obligated to make such payments of Funds re Lender to the extent that Borrower makes such payments to the holder of a prior security' deed, mcrugage or deed of trust if such holder is an institutional lender. If Borrower pays Funds to Lender, the Funds shrill be held in an institution the deposits or accounts of which are insured or guaranteed by a federal or state agency (including Lender if Leader is such an institution). Lender shall apply the funds to pay said taxes, assessments, insurance premiums and ground rents. Lender may not charge for so holding and applying the Funds, analyzing said account or verifying and compiling said assessments and bills, unless Lender pays Borrower interest on the Funds and applicable law permits Lender to make such a charge. Borrower and Lender may agree in writing at the time of execution ()Finis Deed that interest on the Funds shall be paid to Borrower, and unless such agreement is made or applicable law requires such interest to be paid, Lender shall nor he required to pay Borrower any interest or earnings on the Funds. Lender shall give to Borrower, without charge, an annual accounting of the Funds showing credits and debits to the Funds and the purpose for which each debit to the Funds was made. The Funds are pledged as additional security for the sums secured by this Deed. If the amount of the Funds held by Lender, together with the future monthly installments of Funds payable prior to the due dates of taxes, assessments, insurance premiums and ground rents, shall exceed the amount required to pay said taxes, assessments, insurance premiums and ground rents as they fall due, such excess shall be, at Borrower's option. either promptly repaid to Borrower or credited to Borrower on monthly installments of Funds. lithe amount of the Funds held by Lender snail not be sufficient to pay taxes, assessments, insurance premiums and ground rents as they fall due, Borrower shall pay to Lender any amount necessary to make up the deficiency in one or more pat:menus as Lender may require. Upon payment in full of all sums secured by this Deed, Lender shall promptly refund to Borrower any Funds held by Lender. If under paragraph 17 hereof the Property is sold or the Property is otherwise acquired by Lender, Lender shall apply, no later than immediately prior to the sale of the Property or its acquisition by Lender, any Funds held by fender at the time of application as a credit against the sums secured by this Deed. 3. Application of Payments. Unless applicable law provides otherwise, all payments received by Lender under the Note and paragraphs I and 2 hereof shall be applied by Lender first in payment of amounts payable to Lender by Borrower under paragraph 2 hereof, then to interest payable on the Note, and then to the principal of the Note. 4. Prior Deeds to Secure Debt; Nlortgag,es and Deeds of Trust; Charges; Liens. Borrower shall perform all of Borrower's obligations under any security deed, mortgage, deed of trust or other security agreement with a lien which has priority over this Deed, including Borrower's covenants to make payments when due. Borrower shall pay or cause to be paid all taxes, assessments and other charges, fines and impositions attributable to the Property' which may attain a priority over this Deed, rind leasehold payments or ground rents, if any. 5. Hazard Insurance. Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire, hazards included within the term "extended coverage," and such other hazards as Lender may require and in such amounts and for such periods as Lender may require. The insurance carrier providing the insurance shall be chosen by Borrower subject to approval by Lender; provided, that such approval shall not be unreasonably withheld. All insurance policies and renewals thereof shal l be in a form acceptable to Lender and shall include a standard mortgage clause in favor of and in a form acceptable to Lender. Lender shall have the right to hold the policies and renewals thereof, subject to the terms of any security deed, mortgage, deed of trust or other security agreement with a lien which has priority over this Deed. l it tile event of loss, Borrower shall give prompt notice to the insurance carrier and Lender, Lender may make proof of loss if not made promptly by Borrower. If the Property is abandoned by Borrower. or if Borrower rails to respond to Lender within 30 days from the date notice is mailed by Lender to Borrower that the insurance carrier offers to settle a claim for insurance benefits, Lender is authorized to collect and apply the insurance proceeds at Lender's option either to restoration or repair of the Property or to the sums secured by this Deed. 6. Preservation and Maintenance of Property; Leaseholds; Condominiums; Planned Unit Developments. Borrower shall keep the Property in good repair and shall not commit waste or permit impairment or deterioration of the Property and shall comply with tine provisions of any lease if this Deed is on a leasehold. If this Deed is on a unit in a condominium or a planned unit development. Borrower shall perform all of Borrower's obligations cruder the declaration or covenants creating or governing the condominium or planned unit development, the by-laws and regulations of the condominium or planned unit development, and constituent documents. 7. Protection of Leader's Security, If Bonowier fails to perform the covenants and agreements contained if) this Deed, or if any action or proceeding is commenced which materially affects Lender's interest in the Property, then Lender, at Lender's option, upon notice to Borrower, may make such appearances, disburse such sums, including reasonable attorney's' fees, and take such action as is necessary to protect Lender's interest. If Lender required mortgage insurance as a condition of :caking the loan secured by this Deed. Borrower shall pay the premiums required to maintain such insurance in effect until such time as the requirement for such insurance terminates in accordance with Borrower's and Lender's written agreement or applicable law, Any amounts disbursed by Lender pursuant to this paragraph 7, with interest thereon, at the Note rate, shall become additional indebtedness of Borrower secured by this Deed. Unless Borrower and Lender agree to other terms of payment, such amounts shall be payable upon notice from Lender to Borrower requesting payment thereof Nothing contained in this paragraph 7 shall require Lender to incur any expense or take any action hereunder. 2530000359 12.;-76N[GAho Form 3811 Case 1:16-cv-01617-RWS-JFK Document 38-2 Filed 07/28/16 Page 2 of 9 2 1 '1 I . 8. Inspection. Lender may make or cause to he made reasonable entries upon and inspections of the Property, provided that Lender shall give Borrower notice prior to any such inspection specifying reasonable cause therefor related to Lendeds interest in the Property. 9. Condemnation. Die proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of the Property, or part thereof, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to Lender, subject to the terms of any security deed, mortgage, deed of trust or ether security agreement with a lien which has priority over this Deed. 10. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension oldie time for payment or modification of amortization of the sums secured by this Deed granted by Lender to any successor in interest of Borrower shall not operate to release, in any manner, the liability of the original Borrower and Borrower's successors in interest. Lender shall not be required to commence roceedings against such successor or refuse to extend time for payment or otherwise modify amortization of the sums secured yy this Deed by reason of tiny demand made by the original Borrower and Borrower's successors in interest. Any forbearance by Lender in exercising any right or remedy hereunder, or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of any such right or remedy. I I. Successors and Assigns Bound; Joint and Several Liability; Co-signers. The covenants and agreements herein contained shall bind, and the rights hereunder shall lucre to, the respective successors and assigns of lender and Borrower, subject to the provisions of paragraph 16 hereof Alt covenants and agreements of Borrower shall be joint and several. Any Borrower who co-signs this Deed, but does not execute tire Note, (a) is co-signing ;his Deed only to grant and convey that Borrower's interest in the Property to Lender under the terms of this Deed, (h) is not personally liable on the Note or under this Deed, and (c) agrees that Lender and any other Borrower hereunder may agree to extend, modify, forbear, or make any other -accommodations with regard to the terms of this Deed or the Note, without that Borrower's consent and without releasing that Borrower or modifying this Deed as to that Borrower's interest in the Property. 1 2. Notice. F.xcept for any notice required under applicable law to be given in another manner, (a) any notice to Borrower provided for in this Deed shall he given by delivering it or by mailing, such notice by certified raai, addressed to Borrower at the Property Address or at such other address as Borrower may designate by notice to Lender as provided herein, and (b) any notice to Lender shall be given by certified mail to Lender's address stated herein or to such other address as Lender may designate by notice to Borrower as provided herein. Any notice provided for in this Deed shall be deemed to have been given to Borrower or Lender when giver. in the manner designated herein. 13. Governing Law; Severability. The state and 'Local laws applicable to this Deed shall be the laws of the jurisdiction in w hich the Property is located. The foregoing sentence shall not limit the applicability of federal law to this Deed. in the event that any provision or clause of this Deed or the Note conflicts with applicable lass, such conflict shall not affect other provisions of this Deed or the Note which can be given effect without the conflicting provision, and to this end the provisions of this Deed and the Note arc declared to be severable. As used herein, "costs," "expenses" and "attorneys' fees" include all sums to the extent not prohibited by applicable hisv or limited herein,. 14. Borrower's Copy. Borrower shall be furnished a conformed copy of the Note and of this Deed at the time of execution or alter recordation hereof. 15. Rehabilitation Loan Agreement. Borrower shall fulfill all of Borrower's obligations under any home rehabilitation, improvement, repair, or other loan agreement which Borrower enters into with Lender. Lender, at Lender's option, may require Borrower to execute and deliver to Lender, in a form acceptable to Lender, an assignment of any rights, claims cr defenses which Borrower may have against patties who supply labor, materials or services in connection with improvements oracle to the Property. 10. Transfer of the Property or a Beneficial interest in Borrower. If all or any pan of the Property or any interest in it is sold or transferred (or if a beneficial interest in Borrower is sold or transferred and Borrower is not a natural person) without Lender's prior written consent, Lender may, at its option, require immediate payment in full of all sums secured by this Security Deed. However, this option shall not be exercised by Lender if exercise is prohibited by federal law as of the date of this Security Deed. If Lender exercises this option, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days fiorn the date tile notice is delivered or mailed within which Borrower must pay all sums secured by this Security Deed. If Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this Security Deed without further notice or demand on Borrower. NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows: 17. Acceleration; Remedies. Except as provided in paragraph 16 hereof, upon Borrower's breach of any covenant or agreement of Borrower in this Deed, including the covenants to pay when due any sums secured by this Deed, Lender prior to acceleration shall give notice to Borrower as provided in paragraph 12 hereof specifying; (I) the breach; (2) the action required to cure such breach; (3) a date, not less than 10 days from the date the notice is mailed to Borrower, by w hich such breach must be cured; and (4) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed, and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the nonexistence of a default or any other defense of Borrower to acceleration and sale. If the breach is not cured on or before the date specified in the notice, Lender, al Lender's option, may declare all of the sums secured by this Deed to be immediately due arid payable without further demand and may invoke the power of sale herein granted (and Borrower hereby appoints Lender the agent and attorney-in-fact for Borrower to exercise said power of sale) and any other remedies permitted by applicable law. Lender shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph 17, including, but not limited to, reasonable attorneys' fees. If Lender invokes the power of sale, Lender shall mail a copy of a notice of sale to Burrower in the manner provided in paragraph 12 hereof and shall give notice of sale by public advertisement for the tinic and in the manner prescribed by applicable law. Lender, without further demand on Borrower, shall sell the Property at public auction to the highest bidder at the time and place and under the terms designated in the notice of sale in one or more parcels and in such order as Lender may determine. Lender or Lender's designee may purchase the Property at any sale. Lender shall deliver to the purchaser Lender's deed to the Property in fee simple and Borrower hereby appoints Lender Borrower's agent and attorney-in-fact to make such conveyance. The recitals in Lender's deed shall be prima facie evidence of the truth of the statements made therein. Borrower covenants and agrees that Lender shall apply' the proceeds of the sale in the following order: (a) to all reasonable costs and expenses of the sale, including, but not limited to, reasonable attorneys' fees and costs of title evidence; (b) to all sums secured by this Deed; and (c) the excess, if any, to the person or persons legally entitled thereto. The power and agency hereby' granted are coupled with an interest, are irrevocable by death or otherwise and are cumulative to the remedies for collection of said indebtedness as provided by law. If the Property is sold pursuant to this paragraph 17, Borrower, or any person holding possession of the Property through Borrower, shall immediately surrender possession of the Property to the purchaser at such sale. If possession is not surrendered, Borrower or such person shall be a tenant holding over and may be dispossessed in accordance with applicable law'. 2530000359 7EN(GA) Pag( v, Form 3811 Case 1:16-cv-01617-RWS-JFK Document 38-2 Filed 07/28/16 Page 3 of 9 2 1 H 18. Borrower's Right to Reinstate. Notwithstanding Lender's acceleration of the sums secured by this Deed due to Borrower's breach, Borrower shall have the right to hava any proceedings begun by Lender to enforce this Deed discontinued at any time prior to the earlier to occur of (i) the fifth day before sale of the Property pursuant to the power of sale contained in this Deed or (ii) entry of a judgment enforcing this Deed if: (a) Borrower pays Lender all sums which would he then due under this Deed and the Note had no acceleration occurred; (b) Borrower cures all breaches of any other covenants or agreements of Borrower contained in this Deed; (c) Borrower pays all reasonable expenses incurred by Lender in enforcing the covenants and agreements of Borrower contained in this Deed, and in enforcing Lender's remedies as provided in paragraph 17 hereof, including, hat not limited to, reasonable attorneys' fees; and (d) Borrower takes such action as Lender may reasonably require to assure that the lien of this Deed, Lender's interest in the Property and Borrower's obligation to pay the stuns secured by this Deed shall continue unimpz.sircd. Upon such payment and cure by Borrower, this Deed and the obligations secured hereby shall restrain in full force and effect as if no acceleration had occurred. 19. Assignments of Rents; Appointment of Receiver; Lender in Possession. As additional security hereunder. Borrower hereby assigns to Lender the rents of the Property, provided that Borrower shall, prior to acceleration under paragraph 17 hereof or abandonment of the Property, have the right to collect and retain such rents as they become due and payable. U pon acceleration under paragraph 17 hereof or abandonment of the Property, Lender, in person, by agent or by judicially appointed receiver shall be entitled to enter upon. take possession of and manage the Properly and to collect the rents of the Property including those past due. All rents collected by Lender or the receiver shall he applied first to payment of the costs of management of the Property and collection of rents. including, but not limited to, receiver's fees, premiums on receiver's bonds and reasonable attorneys' fees, and then to the sums secured by this Deed. Lender and the receiver shall be liable to account only for those rents actually received. 20. Release. Upon payment, of all sums secured by this Deed. Lender shall cancel this Deed without charge to Borrower. Borrower shall pay all costs of recordation, if any. 21. Waiver of Homestead. Borrower hereby waives all right of homestead exemption in the Property. 22. Assumption Not a Novation. Lender's acceptance of an assumption of the obligations of this Deed and the Note. and any release of Borrower in connection therewith, shall not constitute a novation. 23. Deed to Secure Debt. This conveyance is to be construed under the existing laws of the State of Georgia as a security deed passing title, and not as a mortgage, and is intended to secure the payment of all sums secured hereby. REQUEST FOR NOTICE OF DEFAULT AND FORECLOSURE UNDER SUPERIOR SECURITY DEEDS, MORTGAGES OR DEEDS OF TRUST Borrower and Lender request the holder of any security deed, mortgage, deed of trust or other encumbrance with a lien w hich has priority over this Security Deed to give Notice to Lender, at Lender's address set forth on page one of this Security Deed, of any delimit under the superior encumbrance and of any sale or other foreclosure action. I N WITNESS WI IEREOF, RROWER has executed and sealed this Deed. (Seal) Sharron K Barks (Seal) -Berr:wer (Seal) -Berru, er r (Seal) STATE OF GEORGIA, Signed, sealed and delivered in the presence of: 2530700359 q-s •761,1(GA) P1O1) -Burrow°, (Seal) -Her root -Burro wcr (S-al( -13 orro,cr- [Si,7 0,iginai Only] I County ss: f 4 noftlural Witness ,k ./ No:arY St3re of (3 cur Lea of Form 3811 Case 1:16-cv-01617-RWS-JFK Document 38-2 Filed 07/28/16 Page 4 of 9 21 ` 1 r".'-'CO PLANNED UNIT DEVELOPMENT RIDER THIS PLANNED UNIT DEVELOPMENT RIDER is made this 15th day of April 2005 , and is incorporated into and shad be deemed to amend and supplement the Mortgage, Deed of Trust, or Security Deed (the "Security Instrument") of the same date, given by the undersigned (the 'Borrower") to secure Borrower's Note to SouthStar Funding, LLC (the "Lender') of the same date and covering the Property described in the Security I nstrument and located at: 4E75 Lightr'ng Bolt Trail , Doug] asv,. 1 le, GEORGIA 30135 [Property Address] The Property includes, but is not limited to, a parcel of land improved with a dwelling. together with other such parcels and certain common areas and fac,lities, as deserted in Declarations of Covenants, Conditions, ant Restrictions (the "Declaration"). The Property is a part of a planned unit development known as Bridge Station [Name of Planned Unit Development] (the "PUD"). The Property also includes Borrower's interest in the homeowners association or equivalent entity owning or managing the common areas and facilities of the PUD (the "Owners Association") and the uses, benefits and proceeds of Borrower's interest. PUD COVENANTS. in addition to the covenants and agreements made in the Security I nstrument, Borrower and Lender further covenant and agree as follows: A, PUD Obligations. Borrower shall perform al l of Borrower's obligations under the POD'S Constituent Documents. The "Constituent Documents" are the (i) Declaration; (i i) articies of i ncorporation, trust instrument or any equivalent document which creates the Owners Association: and (iii) any by-laws or other rules or regulations of the Owners Association. Borrower shalt promptly pay, when due, all dues and assessments imposed pursuant to the Constituent Documents, 2530000359 MULTISTATE PUD RIDER - Single Family - Fannie Mae/Freddie Mac UNIFQPM Form 3150 1/01 11 11[1 Page 1 of 3 CP-7R (0411) VMP Mortgage Solutions, Inc. (800)521-7291 Case 1:16-cv-01617-RWS-JFK Document 38-2 Filed 07/28/16 Page 5 of 9 2 I -1 B. Property Insurance. So :ong as the Owners Association maintains, with a generally accepted insurance carrier, a "master" or "blanket" policy insuring the Property which is satisfactory to Lender and which provides insurance coverage in the amounts (including deductible levels), for the periods, and against loss by fire, hazards included within the term "extended coverage," and any other hazards, including, but not limited to, earthquakes and floods, for which Lender requires insurance, theft (i) Lender waives the provision in Section 3 for the Periodic Payment to Lender of the yearly premium installments for property insurance on the Property; and CO Borrower's obligation under Section 5 to maintain property insurance coverage on the Property is deemed satisfied to the extent that the required coverage is provided by the Owners Assoc ation policy. What Lender requires as a condition of this waiver can change during the term of the loan. Borrower shall give Lender prompt notice of any lapse in required properly insurance coverage provided by the master or blanket policy. I n the event of a cistribution of property insurance proceeds in lieu of restoration or repair following a loss to the Property, or to common areas and facilities of the PUD, any proceeds payable to Borrower are hereby assigned and shall be paid to Lender. Lender shall apply the proceeds to the sums secured by the Security Instrument, whether or not then due, with the excess, if any, paid to Borrower. C. Public Liability Insurance. Borrower shat, take such actions as may be reasonable to i nsure that the Owners Association maintains a public liability insurance policy acceptable in form, amount, and extent of coverage to Lender D. Condemnation. The proceeds of any award cr claim for damages, direct or consequential, payable to Borrower in connection with any condemnation or other taking of all or any part of the Property or the common areas and facilities of the PUD, or for any conveyance in lie❑ of condemnation, are hereby assigned and snail be paid to Lender Such proceeds shall be applied by Lender to the sums secured by the Security Instrument as provided in Section 11. E. Lender's Prior Consent. Borrower shall not, except after notice to Lender and with Lender's prior written consent, either partition or subdivide the Property or consent to: () the abandonment or termination of the PUD, except for abandonment or termination required by law in the case of substantial destruction by fire or other casualty or in the case of a taking by condemnation or eminent domain; (ii) any amendment to any provision of the "Constituent Documents' if the provision is for the express benefit of Lender, (iii) termination of professional management and assumption of self-management of the Owners Association; or (iv) any action which would have the effect of rendering the public liability Insurance coverage maintained by the Owners Association unacceptable to Lender. F. Remedies. If Borrower does not pay PUD dues and assessments when due, then Lender may pay them Any amounts disbursed by Lender under this paragraph F shall become additional debt of Borrower secured by the Security Instrument. Unless Borrower and Lender agree to other terms of payment, these amounts shall bear interest from the date of disbursement at the Note rate and shall be payable, with interest, upon notice from Lender to Borrower requesting payment. 2530000359 Initials: ©,-7R (C411) Page 2 of 3 Form 3150 1101 Case 1:16-cv-01617-RWS-JFK Document 38-2 Filed 07/28/16 Page 6 of 9 2 4 1 BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this PUD Rider, Sharron K Banks (Seal) {Seal) -Borrower -Borrower (Seal) (Seal) -Borrower -Borrower (Seal) (Seal) -Borrower -Borrower (Seal) (Seal) -Borrower -Borrower 2530000359 Cp-7R (0411) Page 3 of 3 Form 3150 1(01 Case 1:16-cv-01617-RWS-JFK Document 38-2 Filed 07/28/16 Page 7 of 9 2 1 I., I EXHIBIT A C ALL THAT TRACT OR PARCEL OF LAND LYING AND BELNG IN LAND LOT 123 OF THE 1ST DISTRICT, 5TH SECTION, DOUGLAS COUNTY, GEORGIA, BEING LOT 19, OF HIDDEN BRANCHES AT ANNEEWAKEE TRAILS SUBDIVISION, UNIT TWO, AS PER PLAT RECORDED IN PLAT BOOK 31, PAGE 11, IN THE OFFICE OF THE CLERK OF SUPERIOR COURT OF DOUGLAS COUNTY, GEORGIA RECORDS, WHICH PLAT IS INCORPORATED HEREIN BY REFERENCE AND MADE A PART OF THIS DESCRIPTION. 4675 LgtollIng Bolt Tralr, Douglasville, GA, 31)155 fh.-scripon ;PCT-Cf 2SP 51711PC Case 1:16-cv-01617-RWS-JFK Document 38-2 Filed 07/28/16 Page 8 of 9 GEORGIA - GRANTOR. Sharron K Barks LENDER SouthStar Furdlng. LL: 2 I 4 I Li 5 I 0 L._ DATE OF SECURITY DEED: 4/15/2005 WAIVER OF BORROWER'S RIGHTS BY EXECUTION OF THIS PARAGRAPH, GRANTOR EXPRESSLY: (1) ACKNOWLEDGES THE RIGHT TO ACCELERATE THE DEBT AND THE POWER OF ATTORNEY GIVEN HEREIN TO LENDER TO SELL THE PREMISES BY NONJUDICIAL FORECLOSURE UPON DEFAULT BY GRANTOR WITHOUT ANY JUDICIAL HEARING AND WITHOUT ANY NOTICE OTHER THAN SUCH NOTICE AS IS REQUIRED TO BE GIVEN UNDER THE PROVISIONS HEREOF; (2) WAIVES ANY AND ALL RIGHTS WHICH GRANTOR MAY HAVE UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES, THE VARIOUS PROVISIONS OF THE CONSTITUTION FOR THE SEVERAL STATES, OR BY REASON OF ANY OTHER APPLICABLE LAW TO NOTICE AND TO JUDICIAL HEARING PRIOR TO THE EXERCISE BY LENDER OF ANY RIGHT OR REMEDY HEREIN PROVIDED TO LENDER, EXCEPT SUCH NOTICE AS IS SPECIFICALLY REQUIRED TO BE PROVIDED HEREOF; (3) ACKNOWLEDGES THAT GRANTOR HAS READ THIS DEED AND SPECIFICALLY THIS PARAGRAPH AND ANY AND ALL QUESTIONS REGARDING THE LEGAL EFFECT OF SAID DEED AND ITS PROVISIONS HAVE BEEN EXPLAINED FULLY TO GRANTOR AND GRANTOR HAS BEEN AFFORDED AN OPPORTUNITY TO CONSULT WITH COUNSEL OF GRANTOR'S CHOICE PRIOR TO EXECUTING THIS DEED; (4) ACKNOWLEDGES THAT ALL WAIVERS OF THE AFORESAID RIGHTS OF GRANTOR HAVE BEEN MADE KNOWINGLY, INTENTIONALLY AND WILLINGLY BY GRANTOR AS PART OF A BARGAINED FOR LOAN TRANSACTION; AND (5) AGREES THAT THE PROVISIONS HEREOF ARE INCORPORATED INTO AND MADE A PART OF THE SECURITY DEED. READ AND AGREED BY GRANTOR: Signed, Sealed and delivered in the presence of: (,- (Seal) -GrantorSharron K Banks (Seal) -Grantor (Seal) -Grantor (Seal) -Grantor CLOSING ATTORNEY'S AFFIDAVIT Before the undersigned attestinc officer personally appeared the undersigned closing attorney, who, having been first duty sworn according to law. states under oath as follows: I n closing the above loan, but prier to the execution of the Deed to Secure Debt and "Waiver of the Borrower's Richts" by the Borrower(s), I reviewed with and explained to the Borrower(s) the terms and provisions of the Deed to Secure Dent and particolarly the provisions thereof authorizing the Lender to sell the secured proper ty by a nonjudtial foreclosure under a power of sale, together with the 'Waiver of Borrower's Rights" and informed the Borrower(s) of Borrower's rights under the Constitution of the State of Georgia and the Constitution of the United Slates to notice and a judicial hearing prior to such foreclosure in the absence of a knowing, intentional and willing contractual waiver by Borrower(s) of Borrower's rights. After said review with and explanation to Borro wer(s), Borrower(s) executed the Deed to Secure Debt and "Waiver of Borrower's Rights. Based on said review with and explanation to the Borrower(s), it is my opinion that Borrower(s) knowingly, i ntentionally and willingly executed the waiver of Borrower's constitutional rights to notice and judiciaN-cearing prier to any such nonjudicral foreclosure. . • '..) L b,r,-4,, I Sworn to and subscribed before me on the date s.et:f ataci e. '1,-. / r.• 0 z .. •. • : - / i / , .--4.1 )• (- t-V ' II -,- '' - / I ,,,,,ryvt.4 / Closing Attorneythe undersigned Noary Ftibtt: FORECLOSURE CLOSING DISCLOSURE 0.C.G.A. Section 7-1-1014(3) requires that we Inform you that if you fail to meet any condltIon or term of the documents that you sign in connection with obtaining a mortgage loan you may lose the property that serves as collateral for the mortgagg,,loanthrough foreclosure. Sharron K Banks 2530000359 ©•960(GA) SO, (,2'71521,201 7103 Case 1:16-cv-01617-RWS-JFK Document 38-2 Filed 07/28/16 Page 9 of 9 Doc rafted and prepared by: • S rson Recorded Return to: Wells Fargo-San Antonio Image Capture 4101. Wiseman Blvd, Bldg 108 San Antonio, TX 78251-4200 Attn: MAC Si 17408-01F MIN: 100180825300003595 MERS Phone 1-888-679-6377 I LI I i 1 I INFM111414 Doc ID: 003584700002 Type: 81.14 Filed: 05/20/2011 at 02:12:00 PM Fre Amt: 89.00 Page 1 of 2 CoJplaa county Georgia RHONDA G PAYNE Clerk Superior Court .<2937 ,,944-945 (Space above this line for county recorder use only) ASSIGNMENT OF SECURITY DEED For value received, Mortgage Electronic Registration Systems, Inc., (MERS) as nominee for Southstar Funding, LLC, its successors and assigns, herein "Assignor", whose address is PO Box 2026, Flint, MI 48501-2026, the undersigned hereby grants, assigns, and transfers tc: US Bank National Association, as Trustee for MASTR Asset Backed Securities Trust 2005•WF1 4801 Frederica Street, Owensboro, KY 42301 herein "Assignee" Its successors and/or assigns, all its right, title, and all beneficial interest under that certain Security Deed, herein "Security Instrument" executed by Sharron K Banks, Unmarried Woman, dated April 15, 2005, in the amount of 539,771.00 and given to Mortgage Electronic Registration Systems, Inc., (MERS) as nominee for Southstar Funding, LLC and recorded on April 20, 2005 as Document or Instrument Number 000934030009 and/or in Book 2141, Page 502-510, of Official Records in the County Recorder office of Douglas County, Georgia, describing :and therein as: Property Address: 4675 Lightning Bolt Trail, Douglasville, Georgia 30135 Legal Description: See Attached Signed this 5 1 r51 es,: Witnes Mortgage Electronic Registration Systems, Inc. cy\ Assistant Secretary Attested by: z...',A0/ ,f, 4 .4., Assistant Secretary GEORGIA ALL PURPOSE NOTARY ACKNOWLEDGEMENT STATE OF MINNESOTA COUNTY OF DAKOTA On this 1 ) before me, ! ‘ 1?2_n ' Nth , personally appeared: Assistant Secretary, Mortgage Electronic Registration Systems, I nc., and CV I -).-Lh INN i rZ Assistant Secretary, Mortgage Electronic Registration Systems, Inc., ❑ personally known to me - OR - proved to me on the basis of satisfactory evidence to be the person(s) whose names) is/are subscribed to the within Instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. 11"al,l2/at, ( ,&KK.1)7/ X9-) Notary: ('g '5 F 4 r•- dc;', My Commission Expires: MAUREEN P. SHERIDAN N OTARY PUBLIC MINNESOTA My Conmromlen C.,. January 31.2015 Page 1 of 1 Case 1:16-cv-01617-RWS-JFK Document 38-3 Filed 07/28/16 Page 1 of 2 8K 2 Q. .1 7 EGO U5 Legal Description ALL THAT TRACT OR PARCEL OF LAND LYLNG AND BEING IN LAND LOT 123 OF THE 1ST DISTRICT. 5TH SECT[ON, DOUGLAS COUNTY, GEORGIA, BEING LOT 19, OF HIDDEN BRANCHES AT ANNEEWAKEE TRAILS SUBDIVISION, UNIT TWO, AS PER PLAT RECORDED IN PLAT BOOK 31, PAGE I I, IN THE OFFICE OF THE CLERK OF SUPERIOR COURT OF DOUGLAS COUNTY, GEORGIA RECORDS, WHICH PLAT IS INCORPORATED HEREIN BY REFERENCE AND MADE A PART OF THIS DESCRIPTION. RECORDED j3 D8 2011 1,41-..o,cla G. Payno ,V46, S1.4).4, Court 'noi.c+43 Gour4. GA Case 1:16-cv-01617-RWS-JFK Document 38-3 Filed 07/28/16 Page 2 of 2 V IN 11 [11,1 11 1111[ ICoo /0: 003753050001 Type: GLRFiled: 11/15/2011 at 04:38:00 P11Fee Amt: 812,00 Page 1 cf 1Douglas County Georgia ;HONDA D PAYNE Clerk Superior Court .2975 ,G83 Recording Requested I. FARGO HOME MORTGAGE When Recorded Return N RELEASE DEPT., WELLS FARGO HOME MORTGAGE 1003 E BRIER DR MAC X0501-022, SAN BERN DINO, CA 92408 ElITTIIIIIff[11111iiflf11111i11(111 DISCHARGE OF DEED TO SECURE DEBT WPH.M - CLIENT 708 tP0143151918 'BANKS" Lender ID. R58071/0143151918 Douglas, Georgia Prepared By: Angelina Serrano, WELLS FARGO HOME MORTGAGE X0501-022, 1003 E BRIER DR, San Bernardino, CA 92408 800-572-3358 The indebtedness referred to in that certain Deed to Secure Debt from SHARRON K BANKS, UNMARRIED WOMAN to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Dated: 04/15/2005 and filed cf record on 04/20/2005 in Book/Reel/Libor: 2141, Page/Folio: 502, of the office of the Clerk of the Superior Court of Douglas County, Georgia as Instrument No.: 000934030009 having been paid in full and cancelled by the undersigned on the date shown below and the undersigned being the present record holder and owner of such deed; or the undersigned being the present owner of such secured interest by virtue of being the original grantee or the heir, devisee, executer, administrator, successor, transferee or assignee, or the servicing agent to whom indebtedness was paid on behalf of or by grantor, The Clerk of such Superior Court is authorized and directed to cancel that deed of record, as provided in Code Section 44-14-4 of the 0. C. G. A. for other mortgage cancellations. Property Address: 4675 LIGHTNING BOLT TRAIL, DOUGLASVILLE, GA 30135 In witness whereof, the undersigned has set hand and seal. U.S. Bank National Association, as Trustee, by Wells Fargo Bank, N.A., successor by merger to WeHs Fargo Home Mortgage, Inc. its Attorney-in-Fact On November 4th 3011 By: KIMBERLY WHITE, Vice President Loan Documentation WITNESS &&-( ,& DENICE MENDOZA 4Y2-2,d,c, STATE OF California COUNTY OF San Bernardino On November 4th, 2011 before me, ANGIE SERRANO, Notary Public, personally appeared KIMBERLY WHITE , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the enfty upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. RECORDED WITNESS my hand and official seal, ANGIE SERRANO Notary Expires: 08/02/2014 41898209 .... , ANGIE SERRANO COMM. #1898209 NOTARY FLE.I1C • CALIFORNIA SAN BF_RNAR5N0 COUNTY COM Expires Aug 2.2014_ Rhonda G. Payne ourR8upertor Goad (This area for notarial seP/I•ICIss County, CA .AS1.A.nov.,FMB11/04.:011 1225:25 Pm WWCCAWFiC0,3000SC00000000‘71.33.308' GAG,EUCL• 01431613 I 8 GAS7ATE_MORT FEL 'ES ,'ASY.'VE.9- OEc 02 291 Case 1:16-cv-01617-RWS-JFK Document 38-4 Filed 07/28/16 Page 1 of 1