Perdum v. Wells Fargo Home Mortgage et al

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

N.D. Ga.May 12, 2017

1 4821-5874-4392 v1 2937137-000072 05/12/2017 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CYNTHIA D. PERDUM, Plaintiff, v. WELLS FARGO HOME MORTGAGE; SHAPIRO PENDERGAST & HASTY, LLP, NATIONWIDE TITLE CLEARING, INC.; AND US DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendants. Civil Action File No.: 1:17-cv-00972-SCJ-JCF DEFENDANT WELLS FARGO HOME MORTGAGE, A DIVISION OF WELLS FARGO BANK, N.A.'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT COMES NOW Defendant Wells Fargo Home Mortgage, a division of Wells Fargo Bank, N.A. ("Wells Fargo"), by special appearance, and through its undersigned counsel, and moves 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. Case 1:17-cv-00972-SCJ-JCF Document 27 Filed 05/12/17 Page 1 of 3 2 4821-5874-4392 v1 2937137-000072 05/12/2017 WHEREFORE, Wells Fargo 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 12th day of May, 2017 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 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 Defendant Wells Fargo Home Mortgage, a division of Wells Fargo Bank, N.A. Case 1:17-cv-00972-SCJ-JCF Document 27 Filed 05/12/17 Page 2 of 3 3 4821-5874-4392 v1 2937137-000072 05/12/2017 CERTIFICATE OF SERVICE This is to certify that I have this day served all parties in the foregoing matter with a copy of DEFENDANT WELLS FARGO HOME MORTGAGE, A DIVISION OF WELLS FARGO BANK, N.A.'S 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: Cynthia D. Perdum pro se 5100 King Arthur Lane Ellenwood, GA 30294 (via U.S. Mail only) Denise Rainwater Griffin Shapiro Pendergast & Hasty, LLP 295 South Culver Street, Suite B Lawrenceville, Georgia 30046 Jeremy B. Ross Thompson O'Brien Kemp & Nasuti, P.C. 40 Technology Parkway South, Ste. 300 Norcross, Georgia 30092 This 12th day of May, 2017. 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 Defendant Wells Fargo Home Mortgage, a division of Wells Fargo Bank, N.A. Case 1:17-cv-00972-SCJ-JCF Document 27 Filed 05/12/17 Page 3 of 3 1 4836-5329-1079 v1 2937137-000040 05/11/2017 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CYNTHIA D. PERDUM, Plaintiff, v. WELLS FARGO HOME MORTGAGE; SHAPIRO PENDERGAST & HASTY, LLP, NATIONWIDE TITLE CLEARING, INC.; AND US DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendants. Civil Action File No.: 1:17-cv-00972-SCJ-JCF BRIEF IN SUPPORT OF DEFENDANT WELLS FARGO HOME MORTGAGE, A DIVISION OF WELLS FARGO BANK, N.A.'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT COMES NOW Defendant Wells Fargo Home Mortgage, a division of Wells Fargo Bank, N.A. ("Wells Fargo"), by special appearance, by and through its undersigned counsel, and shows this Honorable Court that Plaintiff's Complaint should be dismissed pursuant to Federal Rule of Civil Procedure 12(b) as follows: Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 1 of 27 2 4836-5329-1079 v1 2937137-000040 05/11/2017 INTRODUCTION Plaintiff Cynthia D. Perdum (“Plaintiff”) filed this lawsuit in yet another attempt to rid herself of the obligations owed under a duly executed Security Deed and Promissory Note. In multiple prior lawsuits, Wells Fargo was granted judgments on all of Plaintiff's claims. Therefore, this lawsuit constitutes nothing more than an effort to reassert claims previously adjudicated and dismissed and should be barred by the doctrines of res judicata and collateral estoppel. Furthermore, Plaintiff's claims fail as a matter of law and should be dismissed pursuant to Federal Rule of Civil Procedure 12(b). Finally, Plaintiff's "unclean hands" bars her request for equitable relief. For each of these reasons, as discussed in further detail below, Plaintiff's present Complaint must be dismissed with prejudice in its entirety. STATEMENT OF FACTS On or about September 21, 2000, Plaintiff purchased the property at issue in this dispute, 5100 King Arthur Lane, Ellenwood, Georgia 30294. (the "Subject Property"). The Warranty Deed evidencing title of the Subject Property to Plaintiff is attached hereto as Exhibit "A" and is recorded at Deed Book 11616, Page 703 Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 2 of 27 3 4836-5329-1079 v1 2937137-000040 05/11/2017 DeKalb County Records.1 On or about November 22, 2002, Plaintiff refinanced her original mortgage loan with a mortgage loan (the "Subject Loan") in the amount of $121,439.00 from Washington Mutual Bank, FA ("Washington Mutual"). To secure the Subject Loan, Plaintiff executed a Security Deed ("Security Deed"), secured by the Subject Property, in favor of Washington Mutual. The Security Deed is recorded at Deed Book 13931, Pages 454 - 463, DeKalb County Records and is attached hereto as Exhibit "B." On or about December 2, 2006, Washington Mutual assigned (the "Assignment") the Security Deed to Wells Fargo Bank, N.A. The Assignment is recorded at Deed Book 19478, Page 358, DeKalb County Records and is attached hereto as Exhibit "C." PRIOR LAWSUITS On or about May 3, 2013, Petitioner filed a Complaint against Wells Fargo in the DeKalb Superior Court . A copy of the Complaint is attached hereto as Exhibit "D." See Cynthia D. Perdum v. Wells Fargo Bank N.A., Civil Action 1A 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 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”). Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 3 of 27 4 4836-5329-1079 v1 2937137-000040 05/11/2017 No.: 13-CV-5259-7 (2013). Wells Fargo removed the action to this Court. See Cynthia D. Perdum v. Wells Fargo Bank N.A., Civil Action No.: 1:13-CV-01889- SCJ (2013). On or about, February 6, 2014, this Court granted Wells Fargo's Motion to Dismiss and dismissed Petitioner's Complaint. A copy of the Order and Judgment of dismissal are attached collectively hereto was Exhibit "E." On December 31, 2013, Petitioner filed a new lawsuit in the United States District Court for the Northern District of Georgia. See Cynthia D. Perdum v. Wells Fargo Bank N.A., Civil Action No.: 1:13-cv-4304-AT (2013). A copy of Petitioner's Complaint and Amended Complaint are attached collectively hereto as Exhibit "F." On May 29, 2014, the Northern District granted Wells Fargo's Motion to Dismiss and dismissed Petitioner's second lawsuit. A copy of the Order is attached hereto as Exhibit "G." Petitioner appealed the dismissal to the Eleventh Circuit Court of Appeals. The Appeal was dismissed on October 15, 2015. A copy of the Order dismissing the appellate matter is attached hereto as Exhibit "H." Plaintiff filed a new lawsuit in the Superior Court of DeKalb County, Georgia on or about October 31, 2016. See Cynthia D. Perdum v. Wells Fargo Bank N.A., Civil Action No.: 116-cv11502-5 (2016). This matter was voluntarily dismissed without prejudice by Plaintiff on or about January 6, 2017. Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 4 of 27 5 4836-5329-1079 v1 2937137-000040 05/11/2017 STANDARD OF REVIEW Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes this Court to dismiss Plaintiff's lawsuit against Wells Fargo because Plaintiff 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 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, 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 Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 5 of 27 6 4836-5329-1079 v1 2937137-000040 05/11/2017 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) (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. PLAINTIFFS' CLAIMS ARE BARRED BY THE DOCTRINE OF RES JUDICATA. The doctrine of res judicata requires the dismissal of this Lawsuit because Plaintiff's claims were previously adjudicated in the prior two lawsuits. The doctrine of res judicata, or claim preclusion, "prevents parties in a suit in which a final judgment is rendered from re-litigating a subsequent suit based on the same cause of action." Howkins v. Caldwell, 587 F.Supp. 98, 103 (N.D. Ga. 1984). In order for a prior judgment to bar a subsequent action, the following requirements must be met: (a) the prior judgment must have been rendered by a court of Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 6 of 27 7 4836-5329-1079 v1 2937137-000040 05/11/2017 competent jurisdiction; (b) there must have been a final judgment on the pleadings; (3) the parties must be identical in both suits; and (4) the same cause of action must be involved in both suits. See Id. Each of these elements are clearly met in the instant case. First, this Court in two of the prior lawsuits granted Wells Fargo's Motion to Dismiss. This constitutes an adjudication on the merits. See Lobo v. Celebrity Cruises, Inc., 704 F.3d 882, 893 (11th Cir. 2013) ("We also conclude that the [prior] order was an adjudication on the merits because the order was a Rule 12(b)(6) dismissal with prejudice."); see also Hall v. Tower Land & Inv. Co., 512 F.2d 481, 483 (5th Cir. 1975) ("[G]ranting defendant's motion to dismiss for plaintiff's failure to state a claim upon which relief can be granted operates as an adjudication on the merits.")2; Marcus v. Postmaster General, U.S. Postal Service Se. Area, 2011 WL 5119539, at *1 (11th Cir. Oct. 29, 2011) ("[U]nder Federal Rule of Civil Procedure 41(b), a judgment of dismissal usually has the effect of an adjudication on the merits even when the court's order fails to state whether it is with or without prejudice." (citation omitted). 2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 7 of 27 8 4836-5329-1079 v1 2937137-000040 05/11/2017 Next, the previous actions included Plaintiff and Wells Fargo in the same position as Plaintiff and Defendant. Finally, Plaintiffs' prior lawsuits involve the same cause of action because "the same set of facts triggered [the] suits." In Re Justice Oaks II, Ltd., 898 F.2d 1544, 1551 (11th Cir. 1990). "Claims are part of the same cause of action when they arise out of the same transaction or series of transactions." Id.; see also Olmstead v. Amoco Oil Co., 725 F.2d 627, 632 (11th Cir. 1984) (res judicata "extends not only to the precise legal theory presented in the previous litigation, but to all legal theories and claims arising out of the same `operative nucleus of fact'"). Plaintiff previously challenged the validity of the Note, Security Deed, and Assignment as well as Wells Fargo's right to foreclose. Additionally, any allegedly new claims would be barred as well because Plaintiffs could have been brought them in prior lawsuit and did not. See QOS Networks Ltd. v. Warburg, Pincus & Co., 294 Ga.App. 528, 541, 669 S.E.2d 536 (2008) ("[R]es judicata bars subsequent actions as to all matters put in issue or which could have been put in issue. In other words, one must assert all claims for relief concerning the same subject matter in one lawsuit and any claims for relief concerning that same subject matter which are not raised will be res judicata."); see also Neely, 298 Ga. App. at 887, 681 S.E.2d 677 ("The doctrine of res judicata ... prevents re-litigation of Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 8 of 27 9 4836-5329-1079 v1 2937137-000040 05/11/2017 matters that were or could have been litigated in a previously-adjudicated action.”). Accordingly, these claims have been dismissed with prejudice by a court of competent jurisdiction and Plaintiff's present Complaint should dismissed under the doctrine of res judicata. II. PLAINTIFFS' CLAIMS ARE BARRED BY THE DOCTRINE OF COLLATERAL ESTOPPEL. Similarly, Plaintiffs' present lawsuit is barred by the Doctrine of Collateral Estoppel. "Collateral estoppel precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies." In re T.M.G., 275 Ga. 543, 544, 570 S.E.2d 327 (2002). "Like res judicata, collateral estoppel requires the identity of the parties or their privies in both actions. However, unlike res judicata, collateral estoppel does not require identity of the claim--so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re- litigated, even as part of a different claim." Waldroup v. Greene County Hosp. Authority, 265 Ga. 864, 867, 463 S.E.2d 5 (1995). Here, Plaintiff's claims are based on the underlying allegation that Wells Fargo lack the authority to foreclose based on the Assignments and/or the issues involving the validity of the Note and Security Deed. These have already been Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 9 of 27 10 4836-5329-1079 v1 2937137-000040 05/11/2017 reviewed and dismissed by this Court. Therefore, Plaintiffs' claims are barred by the doctrine of collateral estoppel and her Complaint should be dismissed. III. PLAINTIFFS FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED AGAINST WELLS FARGO. Even if the Court finds that Plaintiffs' claims are not barred by the doctrine of res judicata, which they are, Plaintiffs' Complaint would still be subject to dismissal as a result of Plaintiffs' failure to state a valid claim against Wells Fargo upon which relief can be granted. A. Plaintiff Has Not Stated A Claim For Breach Of Contract. The elements for any breach of contract claim are (1) the breach, (2) and the resultant damages, (3) to the party who has the right to complain about the contract being broken. Techbios, Inc. v. Champagne, 301 Ga. App. 592, 595 (2009) citing Kuritzky v. Emory Univ., 294 Ga.App. 370, 371, (2008). Plaintiff enumerates the "Application of Payments", "Fees", and "Grounds for Acceleration of Debt" as the sections of the Security Deed which were allegedly breached by Wells Fargo. (Compl. ¶106-110.) However, Plaintiff does not make any specific allegation under these sections. Rather, her claim is based on the allegation that "[Wells Fargo] had no standing on their own to accelerate the loan, and attempt to auction the property through sale under power, which [Wells Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 10 of 27 11 4836-5329-1079 v1 2937137-000040 05/11/2017 Fargo] has attempted numerous times." (Compl. ¶109.) Yet, this allegation has not only been adjudicated by this Court, but also fails as a matter of law. Plaintiff freely admits that she executed the Promissory Note and Security Deed. (Compl. ¶10.) The Security Deed was then assigned to Wells Fargo. Ex. "B." As a result, Wells Fargo is entitled to foreclose regardless of the position of the note. See You v. J.P. Morgan Chase Bank, N.A., 293 Ga. 67, 74 (2013) ("Under current Georgia law, the holder of a deed to secure debt is authorized to exercise the power of sale in accordance with the terms of the deed even if it does not also hold the note or otherwise have any beneficial interest in the debt obligation underlying the deed."). Furthermore, Plaintiff lacks standing challenge the validity of the Assignment as a matter of law. See Ames v. JP Morgan Chase Bank, N.A., 783 S.E.2d 614, 619-21 (Ga. 2016) (holding that the plaintiffs had no standing to challenge the validity of the assignment of the security deed to a third party); see also Montgomery v. Bank of America, 321 Ga. App. 343, 345 (2013) see also Larose v. Bank of America, 321 Ga. App. 465 468 (2013). Accordingly, Wells Fargo has the authority to foreclose and Plaintiff's claims to the contrary fail. Next, Plaintiff's vague assertion that "the account had been mismanaged and the money for the payments did not align with the application of payments, thereby breaching the contract" does not state a claim. (Compl. ¶111.) To begin with, Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 11 of 27 12 4836-5329-1079 v1 2937137-000040 05/11/2017 Plaintiff has not adequately alleged what payments she believe have not been properly applied. See Jenkins v. BAC Home Loan Servicing, LP, 822 F.Supp.2d 1369 (M.D. Ga., 2011). Instead, Plaintiff's claim is wholly based on her assertion Wells Fargo's alleged failure to provide a payment history is evidence of mismanagement. (Compl. ¶111.) However, the alleged failure to provide a payment history cannot amount to a sufficient allegation of mismanagement of those payments. See Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1302 (11th Cir.2007)(Plaintiff must “provide more than conclusory grounds for relief.") Put another way, to establish a breach of contract claim based on the misapplication of payments, Plaintiff must allege that specific payment has been improperly applied and that she suffered damages as a result. Because she has not, her claim should be dismissed. Furthermore, Plaintiff has not demonstrated that the alleged misapplication of payments caused her damage. Critically, Plaintiff does not allege that she has been making mortgage payments or that she ceased making payments due to any alleged misapplication of funds. Instead, her Complaint (as well as the prior lawsuits) establish that she has not been making payments due to her erroneous belief that Wells Fargo lacks standing to foreclose. As a result, Plaintiff has not Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 12 of 27 13 4836-5329-1079 v1 2937137-000040 05/11/2017 established that the alleged misapplication of funds did cause the true damage in this matter i.e. the acceleration of the loan. Finally, Plaintiff has not plead any damages resulting from Wells Fargo's purported violation of the HUD requirements. See Bates v. JPMorgan Chase Bank, NA, 768 F.3d 1126, 1133 (11th Cir. 2014)("…for a mortgagor… to succeed, she must show that the premature or improper exercise of some power under the deed (acceleration or sale) resulted in damages that would not have occurred but for the breach."). Critically, Plaintiff could have simply reinstated the Loan at any time prior to acceleration and/or foreclosure under the terms of the Note and Security Deed. See Bates, 768 F.3d at 1133. ("Because all Bates must do, even now, is simply pay all of the outstanding monthly payments and associated fees admittedly owed, Chase's exercise of the power to accelerate the note could not have caused her harm, and therefore, she has failed to substantiate two important elements of her claim for breach of contract: causation and damages."). Accordingly, there is no set of facts upon which the alleged violation of HUD regulations caused harm to Plaintiff and dismissal of this claim is appropriate. In sum, Plaintiff has not stated a breach of contract claim and this Court should dismiss this claim. Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 13 of 27 14 4836-5329-1079 v1 2937137-000040 05/11/2017 B. Plaintiff Has Failed To Allege A Wrongful Attempted Foreclosure Claim. To plead a claim for wrongful attempted foreclosure, Plaintiff must establish "a knowing and intentional publication of untrue and derogatory information concerning the debtor's financial condition, and that damages were sustained as a direct result of this publication." Aetna Finance Co. v. Culpepper, 171 Ga. App. 315, 319 (1984); see also Sale City Peanut & Milling Co. v. Planters & Citizens Bank, 107 Ga. App. 463, (1963). Plaintiff may not proceed past the pleading stage on a claim for wrongful attempted foreclosure without these showings, meaning that plaintiff may not simply show that notice was published but the sale was cancelled. Id. Where a plaintiff cannot point to specific derogatory financial statements, there is no claim for attempted wrongful foreclosure. Culpepper, 171 Ga. App. at 319. Here, Plaintiff fails to point to any specific publication of untrue and derogatory information. Rather, she vaguely asserts that "[Wells Fargo] did not have the authority of the Secretary to foreclose". (Compl. ¶121.) Yet, this allegation alone cannot support a claim because she has not alleged that she is current on her mortgage loan. Therefore, Plaintiff's claim fails to cross this threshold and should be dismissed. Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 14 of 27 15 4836-5329-1079 v1 2937137-000040 05/11/2017 Next, Plaintiff has not pled that damages were sustained as a direct result of the alleged untrue publication. She vaguely asserts that she was harmed. Yet, the damage alleged in this instance, i.e. the noticing of the foreclosure sale occurred due to Plaintiff's own default on the Subject Loan, not Wells Fargo's conduct. Therefore, Plaintiff has clearly not pled damages proximately caused by a false publication. Lastly, Plaintiff's wrongful attempted foreclosure claims fail because Plaintiff has not alleged that she has tendered the amount secured by the Security Deed. "Failure to make the proper loan payments or tender the amount due defeats any wrongful foreclosure or attempted wrongful foreclosure claims." White v. Bank of America, N.A., et al., 2013 WL 1963786 *3 (N.D.Ga.). Plaintiff's failure to satisfy the Subject Loan defeats Plaintiff's wrongful attempted foreclosure claims. For each of these independently sufficient reasons, Plaintiff's wrongful attempted foreclosure claim should be dismissed. C. Plaintiffs' Cannot Establish The Elements Of Conversion. "To make out a prima facie case, in an action for damages for conversion of personal property, the plaintiff must show title to the property, possession by the defendant, demand for possession, and refusal to surrender the property, or an Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 15 of 27 16 4836-5329-1079 v1 2937137-000040 05/11/2017 actual conversion prior to the filing of the suit." Taylor v. Powertel, Inc., 250 Ga. App. 356, 358 (2001) (citing Atlantic Coast Line R. Co. v. McRee, 12 Ga.App. 137 (1913). "The general rule is that money is not a type of property that is subject to an action for conversion." City of Atlanta v. Hotels.com, L.P., 332 Ga.App. 888, 891 (2015) “While money constitutes personal property, money is intangible property that is fungible, because it belongs to a class of property which cannot be differentiated by specific identification unless there has been created a specific fund that has been set aside from other money.” Taylor, 250 Ga.App. at 359. In other words, "money held is not subject to a claim for conversion unless the funds allegedly converted are specific and identifiable. Id., 250 Ga. App. at 358. Here, Plaintiff's claim involves money but she has not specifically alleged any funds were converted. Rather, Plaintiff again asserts that Wells Fargo "mismanaged her payments". (Compl. ¶123.) However, this vague allegation does not support her claims. See Chung v. JP Morgan Chase Bank, N.A., 975 F.Supp.2d 1333 (N.D. Ga., 2013) ("[Bank's] failure to apply the payments to the Plaintiff's account did not constitute conversion.") Furthermore, even if Plaintiff had sufficiently identified such claims, she would not have title to the funds because she was already obligated to make the mortgage payments. See Habel v. Tavormina, 266 Ga. App. 613, 615 (2004). ("If [the defendant] has a right to assert Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 16 of 27 17 4836-5329-1079 v1 2937137-000040 05/11/2017 ownership, the act of dominion is not wrongful and does not constitute conversion.") Dismissal is appropriate. D. Plaintiff's Claims For Negligence Fails On Its Face. Plaintiff's Complaint alleges counts of negligence and gross negligence. The essential elements of a negligence claim are the existence of a legal duty, breach of that duty, a causal connection between the defendant's conduct and the plaintiff's injury, and damages. Boller v. Robert W. Woodruff Arts Ctr., Inc., 311 Ga.App. 693, 695, 716 S.E.2d 713 (2011). Therefore, “[t]he threshold issue in a negligence action is whether and to what extent the defendant owes a legal duty to the plaintiff.” Id. This is an issue of law. Id. Furthermore, "[i]t is well settled that mere failure to perform a contract does not constitute a tort." ServiceMaster Co., L.P. v. Martin, 252 Ga. App. 751, 754 (2001). Rather, "[a] plaintiff in a breach of contract case has a tort claim only where, in addition to breaching the contract, the defendant also breaches an independent duty imposed by law." Id. Plaintiff's claim is based on the assertion that "[Wells Fargo] was negligence in the maintenance, accounting and servicing of her mortgage". (Compl. ¶125.) Plaintiff vaguely asserts that "the contract imposed a legal duty, which existed apart from the specific obligation of the contract." (Compl. ¶126.) Yet, there is no factual or legal support for this legal conclusion. Accordingly, Plaintiff has not Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 17 of 27 18 4836-5329-1079 v1 2937137-000040 05/11/2017 cited any duty which Wells Fargo allegedly owed to Plaintiff and her negligence claim fails. Finally, Plaintiff has not plead any causation or damages. As demonstrated above, the noticing of the foreclosure sale was caused by Plaintiff's own failure to make her monthly mortgage payments and not by Wells Fargo's conduct. See Heritage, 601 S.E.2d at 845. Accordingly, Plaintiff's negligence and gross negligence claims fail from the start and should be dismissed. E. Plaintiff's TILA Claim Must Be Dismissed as a Matter of Law. Plaintiff's TILA claim first alleges that "[Wells Fargo] failed and refuse to confirm the identify of, and to provide the address and telephone number for the owner of the subject obligation contrary to 15 U.S.C. § 1641(f)(2)" (Compl. ¶ 126.) 15 U.S.C. § 1641(f)(2) provides that, "[u]pon written request by the obligor, the servicer shall provide the obligor, to the best knowledge of the servicer, with the name, address, and telephone number of the owner of the obligation or the master servicer of the obligation." 15 U.S.C. § 1641(f)(2). However, Plaintiff has not attached the letter and thus it cannot be ascertained whether such a request was appropriate and complied with TILA itself. See Wallace v. Wells Fargo Bank, N.A., No. 1:15-cv-1418-WSD (N.D. Ga., 2016). Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 18 of 27 19 4836-5329-1079 v1 2937137-000040 05/11/2017 Next, Plaintiff asserts that Wells Fargo failed to provide an accurate payoff statement contrary to 15 USC § 1639g. (Compl. ¶130) Again, Plaintiff has not attached the relevant documents. Furthermore, Plaintiff concedes that Wells Fargo did respond to such request and advised her to call Wells Fargo for a detailed quote as the amount could vary daily. (Compl. ¶44.) Plaintiff does not allege that she called Wells Fargo. As a result, Plaintiff has not alleged any valid basis for this claim. Moreover, Plaintiff has not alleged any damages required for a TILA claim. See Turner v. Beneficial Corp., 242 F.3d 1023, 1028 (11th Cir. 2001) ("[D]etrimental reliance is an element of a TILA claim for actual damages . . . a plaintiff must present evidence to establish a causal link between the financing institution's noncompliance and his damages.") Plaintiff has not alleged that had she received an accurate payoff quote, she would have paid off the loan or otherwise benefited. Furthermore, Plaintiff has not alleged that she would have benefited (or been affected in any way) had she received the address and telephone number for the owner of the subject obligation. In other words she has not alleged a claim under TILA and this claim should be dismissed. Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 19 of 27 20 4836-5329-1079 v1 2937137-000040 05/11/2017 F. Plaintiff's RESPA Claim Must Be Dismissed as a Matter of Law. Plaintiff's RESPA claim is based on the allegation that "[Wells Fargo] did not provide adequate responses to numerous request for information within the required timeframe." (Compl. ¶141.) To begin with, Plaintiff concedes that multiple responses were made by Wells Fargo. Plaintiff's confusion and/or satisfaction with the answer cannot create any damages under RESPA. See Bates., 768 F.3d at 1135 (11th Cir. 2014). Additionally, there is no duty which required Wells Fargo to respond to a "follow up" requested, when an answer has been provided. Bates, 768 F.3d at 1135. Furthermore, the scope of a QWR under RESPA is limited to information related to the servicing of loans. 12 U.S.C. § 2605(e)(1)(B). Such information does not include the lender's title and right to foreclose. See Liggion v. Branch Banking & Trust, No. 1:11-cv-01133-WSD (N.D. Ga., 2011) (Borrower's correspondence regarding lender/servicer right to foreclose on the Property did not constitute a QWR.); see also Johnson v. Midfirst Bank, No. 1:14-CV-0573-CC (N.D. Ga., 2014)("Because Plaintiff does not allege that MidFirst Bank failed to respond to servicing-related requests, the RESPA claim is due to be dismissed.") Dynott v. Nationstar Mortg., LLC, 1:13-cv-1474-WSD (N.D. Ga., 2014) ("the letter that Plaintiff allegedly sent does not qualify as a QWR because it requests Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 20 of 27 21 4836-5329-1079 v1 2937137-000040 05/11/2017 information about matters well beyond the mere servicing of Plaintiff's individual loan."). Thus, anything outset the scope of RESPA is therefore not an actionable QWR. Accordingly, Plaintiff has failed to state a valid violation of RESPA that could entitle him to any relief whatsoever. G. Plaintiff’s Anti-Trust Claims Fail At the outset. Plaintiff's vague "Violation of the Sherman and Clayton Acts" claim is based on the allegation that the "[t]he Short-Sale Conspiracy and Agreement…is a violation of the Federal Antitrust laws… because the short-sale purchaser would be required by the agreement to sign an affidavit to an "arm's length" transaction and represent to the defendant that the Plaintiff is not going to wind up living in the mortgage property or having an interest in the mortgage property after the completion of a short sale to the Plaintiff." (Compl. ¶150) Such allegations fail to demonstrate both antitrust injury and injury-in-fact necessary to establish standing to pursue Sherman Act claims. 15 U.S.C. § 15(a). To begin with, Plaintiff has not adequately plead any aspect of a claim under the Sherman Act or Clayton Act. See Bell Atl. Corp. v. Twombly, 550 U.S. 554, 553-54 (2007); see also United States v. Topco Assocs., Inc., 405 U.S. 596 (1972). Specifically, Plaintiff has not alleged a conspiracy to restrict trade or commence or Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 21 of 27 22 4836-5329-1079 v1 2937137-000040 05/11/2017 attempt to monopolize. Furthermore, Plaintiff has not alleged that she has been injured in any way from ant such policy or conspiracy. Moreover, it should be noted that a mortgagor has no duty under Georgia or Federal law to enter into loss mitigation much less a short sale agreement. See Ceasar v. Wells Fargo Bank, N.A., 744 S.E.2d 369, 322 Ga. App. 529 (2013) ("Wells Fargo had no duty to modify the [plaintiffs'] loan or Security Deed."). As a result, such agreement cannot be considered a restriction upon trade or a monopolization combined with a conspiracy. As a result, this cannot state a claim. H. The FDCPA Claim Should Be Dismissed As A Matter Of Law. 1. A mortgage loan foreclosure does not come within the purview of the FDCPA. A plaintiff seeking relief under the FDCPA must first show that she has been the object of consumer debt collection activity. Gass v. CitiMortgage, Inc., No. 1:11-CV-3713-RWS-JSA, 2012 WL 3201400, *14 (N.D. Ga. June 25, 2012) (citing Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1361 (S.D. Fla. Mar. 14, 2000)). The enforcement of a mortgage through a foreclosure process is not debt collection activity for purposes of the FDCPA. See Warren v. Countrywide Home Loans, Inc., 342 F. App'x 458, 460-61 (11th Cir. 2009) (agreeing with "nearly every court" that foreclosing on a home does not qualify as debt collection for purposes of § 1692g); Miller v. Wells Fargo Bank, N.A., Inc., No. 1:12-CV-2708- Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 22 of 27 23 4836-5329-1079 v1 2937137-000040 05/11/2017 RWS, 2013 WL 1189503, at *5 (N.D. Ga. Mar. 21, 2013). Here, the only conduct by Wells Fargo that Plaintiff identifies which could arguably be described as "debt collection activity" is the noticing of the foreclosure sale. (Compl. ¶154.) Such conduct, however, does not come within the purview of the FDCPA and Plaintiff’s attempt to link any activity related to the foreclosure proceedings to the FDCPA fails as a matter of law. Additionally, as shown above, Wells Fargo was assigned the Security Deed. See Exh. "C." 2. Wells Fargo is not a "debt collector" as defined under the FDCPA. A person seeking relief under the FDCPA must also show that the alleged wrongdoer is a "debt collector" as defined by the FDCPA. Gass, 2012 WL 3201400, at *14; Ga. ex rel Saunders v. Mortg. Elec. Registration Sys., Inc., No. 1:10-CV-3419-TWT-RGV, 2011 WL 1335824, *8 (N.D.Ga. Mar. 11, 2011). The FDCPA defines a “debt collector” as any person who uses any instrumentality of interstate commerce or the mail in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. 15 U.S.C. § 1692a(6). Here, Plaintiff appears to argue that Wells Fargo is a debt collector subject to the FDCPA for various reasons. Plaintiff’s FDCPA claim fails as a matter of Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 23 of 27 24 4836-5329-1079 v1 2937137-000040 05/11/2017 law because it is well-established that creditors and mortgage servicers are excluded from the purview of the FDCPA. See Brown v. Fed. Nat'l Mortg. Ass'n, No. 1:10-CV-03289-TWT-GGB, 2011 WL 1134716, *7 (N.D. Ga. Feb. 28, 2011); Buckley v. Bayrock Mortg. Corp., No. 1:09-CV-1387-TWT, 2010 WL 476673, *6 (N.D. Ga. Feb. 5, 2010) (same); Sabeta v. Baptist Hosp. of Miami, Inc., 410 F.Supp.2d 1224, 1242 (S.D. Fla. 2005) (same); Trent v. Mortg. Elec. Registration Sys., Inc., 618 F.Supp.2d 1356, 1360 (M.D.Fla.2007) (same); Humphrey v. Wash. Mut. Bank, F.A., No. 1:06-CV-1367-JOF, 2007 WL 1630639, at *2 (N.D. Ga. June 1, 2007). As a secured creditor, Wells Fargo would not come within the purview of the FDCPA. Thus, because Plaintiff has failed to allege facts indicating that Wells Fargo is a "debt collector" who engaged in "debt collection activity" as contemplated by the FDCPA, Plaintiff's FDCPA claim should be dismissed. I. "Plaintiff's Recordation Of Falsified Documents Into Public Record" Are Not Alleged Against Wells Fargo And Even If They Were They Do Not State A Claim. (Count IV) Plaintiff's ninth claim for relief is explicitly alleged against NTC only. (Compl. ¶¶152-157.) As a result, Wells Fargo will not address these claims in depth. To the extent that such claims are perceived to be raised against the Wells Fargo, Wells Fargo states that Plaintiff's claim fails for the reasons stated supra., Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 24 of 27 25 4836-5329-1079 v1 2937137-000040 05/11/2017 including that Plaintiff lacking standing to challenge the assignment. Dismissal of this claim is appropriate. CONCLUSION For the reasons shown herein his lawsuit should be dismissed pursuant to Rule of Civil Procedure 12(b). Respectfully submitted, this 12th day of May, 2017. 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 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 Defendant Wells Fargo Home Mortgage, a division of Wells Fargo Bank, N.A. Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 25 of 27 26 4836-5329-1079 v1 2937137-000040 05/11/2017 FONT CERTIFICATION The undersigned counsel for Defendant Wells Fargo Home Mortgage, a division of Wells Fargo Bank, N.A. hereby certifies that the within and foregoing was prepared using Times New Roman 14-point font in accordance with Local Rule 5.1. This 12th day of May, 2017. /s/ Daniel P. Moore Daniel P. Moore Georgia Bar No. 940480 Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 26 of 27 27 4836-5329-1079 v1 2937137-000040 05/11/2017 CERTIFICATE OF SERVICE I have this day served upon all necessary parties of record with a copy of BRIEF IN SUPPORT OF DEFENDANT WELLS FARGO HOME MORTGAGE, A DIVISION OF WELLS FARGO BANK, N.A.'S 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: Cynthia D. Perdum pro se 5100 King Arthur Lane Ellenwood, GA 30294 (via U.S. Mail only) Denise Rainwater Griffin Shapiro Pendergast & Hasty, LLP 295 South Culver Street, Suite B Lawrenceville, Georgia 30046 Jeremy B. Ross Thompson O'Brien Kemp & Nasuti, P.C. 40 Technology Parkway South, Ste. 300 Norcross, Georgia 30092 This 12th day of May, 2017. 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 Defendant Wells Fargo Home Mortgage, a division of Wells Fargo Bank, N.A. Case 1:17-cv-00972-SCJ-JCF Document 27-1 Filed 05/12/17 Page 27 of 27 00 -1077 RETURN TO: GERBER & GERBER, P.C. 5491-A ROSWELL ROAD, SECOND FLOOR ATLANTA, GEORGIA 30342 (404) 257-1011 Deed Book 1 1616 Pg 703 Filed and Recorded Sep-29-2030 01:00pe 2000-01 1 1326 Real Estate Transfer Tam 1132,20 Jeanette Ron r Clerk of Stgoertor Court Dekalb Eq. ea, 111111N111111111111111111111111111•1111 L IMITED WARRANTY DEED STATE OF GEORGIA COUNTY OF FULTON This Indenture made this 21st day of September, in the year Two Thousand , Letween RIVERCREST BUILDERS, INC., of Fulton County, Georgia, BS party or parties of the first part, hareinender cared Grantor, end CYNTHIA D. PERDUM, , BS party or portion of the second part, hereinafter called Grantee (the words "Grantor" and "Grantee" to include thee respective hobs, successors and assigns wham the context requires or parings) W I T N E S S E T H that: Grantor, for and In consideration of the sum. of TEN AND 00/100'S ($10.00) Dollars and other good and valuable considerations in hand paid at and before the sealing and delivery of these presents, the receipt whereof Ix hereby acknowledged, has granted, bargained, sold, aliened, conveyed and confirmed, and by those presents does grant, bargain, sell, ellen, convey end ConlUrn unto the said Grantee, ALL THAT TRACT OR PARCEL OF LAND LYING AND BEING IN LAND LOT 30, OF THE 15TH DISTRICT, DEKALB COUNTY, GEORGIA, AND BEING LOT 143, BLOCK A, CAMELOT, UNIT ONE, AS PER PLAT RECORDED IN PLAT BOOK 112, PAGES 83-90, AND RERECORDED IN PLAT BOOK 112, PAGES 97-104, AND RERECORDED IN PLAT BOOK 114, PAGES 28-35, DEKALD COUNTY, GEORGIA RECORDS, WHICH RECORDED PLAT IS INCORPORATED HEREIN BY REFERENCE FOR A MORE COMPLETE DESCRIPTION OF SAID PROPERTY. This conveyance Is made subject to all eaaements, restrictions and covenants of record. TO HAVE AND TO HOLD the said tract or parcel of land, with all and singular the rigets members end appurtenances thereof, to the some being, belonging, or In anywise appertelnIng, to tee only props, use, benefit and behcof of the sold Grantee forever in FEE SIMPLE. AND THE SAID Grantor will warrant and forever defend the right and title to the above descrione property 11110 the sad Grantee egabst the claims of all persons through or under Grantor, IN WITNESS WHEREOF, Grantor hes hereunto sot grantor's hand and seal this d• and year net eby9. written. Stoned, sealed and delivered presence or' RIVE PRE EST eE lERS ee it ...... y„ranr,,t'Seal) Case 1:17-cv-00972-SCJ-JCF Document 27-2 Filed 05/12/17 Page 1 of 1 After Recordation Return to: Washington Mutual Bank, FA c/o ACS Image Solutions 12691 Pala Dr. Garden Grove, CA 92841 State of Georgia Prepared By: Michael J Brudenell Downers Grove, IL 60515 Deed Bosh 1 393 1 Pg 454 Filed and Recorded Dec-02-2002 01:34pm 2002-017986,2 Georgia Intangible Tax Paid $364.58 Linda Carter Clerk of B prior Court Dakalb Cty, 6a. 1 111111M11111111111111111•111111111111111111 !space Above Thls tine For Rtrording Dot.' SECURITY DEED THIS SECURITY DEED ("Security Instrument") is given on The Grantor is Cynthia D Perdum FDA Case No 105-0910407-2038 Lender 4: 0046997336 November 22, 2002 , and whose address is 5100 King Arthur Ln Ellenwood, GA 30294 (''Borrower"). This Security Instrument in given to Washington Mutual Bank, PA which is organized and existing under the laws of United States of America , and whose address is 9451 Corbin Ave. Northridge, CA 91324 ("Lender"). Borrower owes Lender the principal SUM of One Hundred Twenty One Thousand Four Hundred Thirty Nino and 00/100 Dollars (U.S, S 121,439. 00 ). This debt is evidenced by Borrower's note dated the same date as this Security Instrument CNote"), which provides for FHA Georgia Seeorlly Deed -4/96 P4R(GA) 105551 P•ge ot OUP MORT., Foxes E0,3j521-,2Y1 A U - S T A T E L E G A L ° EXHIBIT Case 1:17-cv-00972-SCJ-JCF Document 27-3 Filed 05/12/17 Page 1 of 10 Deed Book 13931 Pg 455 11111111111111111111111111111111111111111111.1 monthly payments, with the full debt, if not paid earlier, due and p ayable on December 1 , 2032 This Security Instrument secures to Lender: (a) the repayment of the debt evidenced b y the Note, with interest, and all renewals, extensions and modifications of the Note; (h) the payment of all other sum s, with Interest, advanced under paragraph 7 to protect the security of this Security Instrument; and (e) the performan ce of Borrower's covenants and agreements under this Security Instrument and the Note, For this purpos e, Borrower does hereby grant and convey to the Lender and Lender's successors and assigns, with power of sale, the fo llowing described property located in De Kalb County, Georgia: Legal description attatched hereto and made a pert thereof. which has the address of 5100 King Arthur Ln, Ellenwo od [Street, Citvi, Georgia 30294 [7t1, cede] ("Property Address"); TO HAVE AND TO HOLD this property unto Lender and lender 's successors and assigns, forever, together with all the improvements now or hereafter erected on the property, and all easements, appurtenances and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security Instrument. All of the foregoing is referred to its this Security Instrument as the "Property." BORROWER COVENANTS that Borrower is lawfully seized of the estate hereby con veyed and has the right to grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record. THIS SECURITY INSTRUMENT combines uniform covenants for national use and n onuniform covenants with l imited variations by jurisdiction to constitute a uniform security i nstrument covering real property. Borrower and Lender covenant and agree as follows: UNIFORM COVENANTS. I. Payment of Principal, Interest and Late Charge. Borrower shall pay when due the principal of, and interest on, the debt evidenced by the Note and late charges due under the Note. 2. Monthly Payment of Taxes, Insurance and Other Charges. Borrowe r shall include in each monthly payment, together with the principal and interest as set forth in the Note and any late charges, a sum for (a) taxes and special assessments levied or to be levied against the Prope rty, (b) leasehold payments or ground rents on the Property, and (c) premiums for insurance required under paragraph 4. In any yea r in which the Lender must pay a mortgage i nsurance premium to the Secretary of Housing and Urban Development ("Secretary"), or in any year in which such premium would have been required if Lender still held the Security I nstnanent, each monthly payment shall also include either: (I) a sum for the annual mortgage Insurance premium to be paid by Lender to the Secretary, or (ii) monthly charge instead of a mortgage insurance premium if thi s Security Instrument is held by the Secretary, in a reasonable amount to be determined by the Secretory, Exce pt for the monthly charge by the Secretary, these items arc called "Escrow, Items" and the sums paid to tender are called "Escrow Fu nds." Lender may, at any time, collect and hold amounts for Escrow I tems in an aggregate amount nut to exceed the P4R(GA) (0205) Poo 2a18 Iritieit Case 1:17-cv-00972-SCJ-JCF Document 27-3 Filed 05/12/17 Page 2 of 10 Deed Book 13931 Pg 456 111111111111111111111111111111111111111111111 maximum amount that may be required for Borrower's escrow account under the Real Estate Settlement Procedures Act of 1974, 12 U.S.C. Section 2601 et seq. and implementing regulations, 24 CFR Part 3500, as they may be amended from time to time ("RESPA"), except that the cushion or reserve permitted by RESPA for unanticipated disbursements or disbursements before the Borrower's payments are available itt the account may not be based on amounts due for the mortgage insurance premium. If the amounts held by Lender for Escrow Items exceed the amounts permitted to be held by RESPA, Lender shall account to Borrower for the excess funds as required by RESPA. If the amounts of funds held by Lender at any time are not sufficient to pay the Escrow Items when due, Lender may notify the Borrower and require Borrower to make up the shortage us permitted by RESPA. The Escrow Funds are pledged as additional security for all sutns secured by this Security Instrument, It Borrower tenders to Lender the full payment of all such sums, Borrower's account shall be credited with the balance remaining for all installment items (a), (h), and (c) and any mortgage insurance premium installment that Lender has not become obligated to pay to the Secretary, and Lender shall promptly refund any excess funds to Borrower. Immediately prior to a foreclosure sale of the Property or its acquisition by Lender, Borrower's account shall be credited with any balance remaining for all installments for items (a), (b), and (c). 3. Application of Payments. All payments under paragraphs t and 2 shalt be applied by Lender as follows: First, tan the mortgage insurance premium to he paid by Lender to the Secretary or to the monthly charge by the Secretary instead of the monthly mortgage insurance premium; Second to any taxes, special assessments, leasehold payments or ground rents, and fire, flood and other hazard insurance premiums, as required; Third, to interest due under the Note; Fourth, to amortization of the principal of the Note; and Fifth, to late charges due under the Note. 4. Fire, Flood and Other Hazard Insurance. Borrower shall insure all improvements on the Property, whether now in existence or subsequently erected, against any hazards, casualties, and contingencies, including Ste, for which Lender requires insurance. This insurance shall be maintained In the amounts and for the periods that Lender requires. Borrower shall also insure all improvements on the Property, whether now in existence or subsequently eructed, against loss by floods to the extent required by the Secretary. All Insurance shall be carried with companies approved by tender. The insurance policies and any renewals shall be held by Lender and shall include loss payable clauses in favor of, and in a form acceptable to, Lender. the event of loss, Borrower shall give Lender immediate notice by mail. Lender finny make proof of lass if not made promptly by Borrower. Each insurance company concerned is hereby authorized and directed to make payment for such loss directly to Lender, instead of to Borrower and to Lender jointly. All or any part of the insurance proceeds may be applied by Lender, at its option, either (a) to the reduction of the indebtedness under the Nolo and this Security I nstrument, first to any delinquent amounts applied in the order in paragraph 3, and then to prepayment of principal, or (b) to the restoration or repair of the damaged Property. Any application of the proceeds to the principal shall not extend or postpone the due date of the monthly payments which are referred to in paragraph 2, or change the amount of such payments. Any excess insurance proceeds over an amount required to pay all outstanding indebtedness under the Note and this Security Instrument shell be paid to the entity legally entitled thereto. I n the event of foreclosure of this Security Instrument or other transfer of title to the Property that extinguishes the i ndebtedness, all right, title and interest of Borrower In and to insurance policies in force shall pass t o the purchaser. 5, Occupancy, Preservation, Maintenance and Protection of the Property; Borrower's Loan Application; Leaseholds, Borrower shall occupy, establish, and use the Property as Borrower's principal residence within si xty days after the execution of this Security Instrument (or within shay days Gin later sale or transfer of the Property) and shall continue to occupy the Property us Borrower's principal residence for at least one year after the dale of occupancy, unless Lender determines that requirement will cause undue hardship for Borrower, o r unless extenuating circumstances exist which are beyond 13orrosver's control. Borrower shall notify Lender o f any extenuating circumstances. Borrower shall not commit waste or destroy, damage or substantially change the Pr operty or allow the Property to deteriorate, reasonable wear and tear excepted, Lender may inspect the Property if the Property is vacant or abandoned or the loan is in default. Lender may take reasonable action to protect and prese rve such vacant or P4R(GA)(7205 19,90,10 Case 1:17-cv-00972-SCJ-JCF Document 27-3 Filed 05/12/17 Page 3 of 10 Deed Bosh 1 393 1 Pg 457 1.111111111111111111111111111111111111111i abandoned Property. Borrower shall also be in default if Borrower , during the loan application process, gave materially false or inaccurate information or statements to Lender (or failed to provide L ender with any material information) in connection with the loan evidenced by the Note, including, but not limited to , representations concerning Borrower's occupancy of the Property as a principal residence. If this Security Instrument is on a leasehold, Borrower shall comply with the provisions of the lease. If Borrower acquires fee title to the Pr operty, the leasehold and fee title shall not be merged unless Lender agrees to the merger in writing. 6, Condemnation, The proceeds of any award or claim for dama ges, direct or consequential, in connection with any condemnation or other taking of any part of the Property, or for conveyanc e in place of condemnation, are hereby assigned and shall he paid to Lender to the extent of the full amou nt of the Indebtedness that remains unpaid under the Note and this Security Instrument. Lender shall apply suc h proceeds to the reduction of the indebtedness under the Note and this Security Instrument, first to any delinquent amounts applied in the order provided in paragraph 3, and then to prepayment of principal. Any application of the proceeds to the princip al shall not extend or postpone the due dote of the monthly payments, which are referred to in paragrap h 2, or change the amount of such payments. Any excess proceeds over an amount required to pay all outstandi ng indebtedness under the Note and this Security Instrument shall he paid to the entity legally entitled thereto, 7, Charges to Borrower and Protection of Lender's Rights in the P roperty. Borrower shall pay all governmental or municipal charges, fines and impositions that are not included In paragraph 2. Borrower shall pay these obligations on time directly to the entity which is owed the payment, I f failure to pay would adversely affect Lender's interest in the Property, upon Lender's request Borrower shall promptly furnish to Lender receipts evidencing these payments. If Borrower fails to make these payments or the payments require d by paragraph 2, or fails to perform any other covenants and agreements contained in this Security Instrument, or the re Is a legal proceeding that may significantly affect Lender's rights its the Property (such as a proceeding in bankruptcy, f or condemnation or to enforce laws or regulations), then Lender may do and pay whatever is necessary, to protect the value of the Property and Lender's rights i n the Property, including payment of taxes, hazard insurance and other I tems mentioned in paragraph 2. Any amounts disbursed by Lender under this paragraph shall b ecome an additional debt of Borrower and be secured by this Security Instrument. These amounts shall h ear Interest from the date of disbursement, at the Note rate, and at the option of Lender, shall be Immediately due and payable. Borrower shall promptly discharge any lien which has priority over this Securi ty Instrument unless Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender; (b) contests in goad faith the lien by, or defends against enforcement of the lien in, le gal proceedings which in the Lender's opinion operate to prevent the enforcement of the lien; or (c) secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security Instrument. If Lender dete rmines that any part of the Property is subject to a lien which may attain priority over this Security Instrument, Lende r may give Borrower a notice identifying the lien. Borrower shall satisfy the lien or take one or tnore of the actions s et forth above within 10 days of the giving of notice. 8. Fees, Lender may collect fees and charges authorized by the Se cretary. 9, Grounds for Acceleration of Debt. (a) Default. Lender may, except as limited by regulation s issued by the Secretary, in the case of payment defaults, require immediate payment in full of all sums secured by this Se curity Instrument if: (i) Borrower defaults by failing to pay in full any monthly payment re quired by this Security Instrument prior to or on the due date of the next monthly payment, or (ii) Borrower defaults by failing, for a period of thirty days, to pe rform any other obligations contained in this Security Instrument. (b) Sale Without Credit Approval. Lender shall, if permitted by appli cable law (including Section 341(d) of the Garn-St. Germain Depository Institutions Act of 1982, 12 U.S.C. 1701j-3(d)) and with the prior approval of the Secretary, require immediate payment in full Of all sums secured by this Security Instrument if P4R(GA) own) pool c(19 Case 1:17-cv-00972-SCJ-JCF Document 27-3 Filed 05/12/17 Page 4 of 10 Deed Book 13931 Pg 458 111111111111111111111111111111111111111101111111111 (i) All or part of the Property, ore beneficial interest in a trust owning all or part of the Property, is sold or otherwise transferred (other than by devise or descent), and (ii) The Property is not occupied by the purchaser or grantee as his or her principal residence, or the purchaser or grantee does so occupy the Property but his or her credit has not been approved in accordance with the requirements of the Secretary. (c) No Waiver. If circumstances occur that would permit Lender to require immediate payment in Full, but Lender does not require such payments, Lender does not waive ins rights with respect to subsequent events. (d) Regulations of HUD Secretary. In many circumstances regulations is sued by the Secretary will limit Lender's rights, in the case of payment defaults, to require Immediate payment in full and foreclose if not paid. This Security Instrument does not authorize acceleration or foreclosur e if not permitted by regulations of the Secretary. (e) Mortgage Not Insured. Borrower agrees that if this Security Instrument and the Note are not determined to he eligible for insurance under the National Housing Act within 60 d ays from the date hereof, Lender may, at its option, require immediate payment in full of all sums secu red by this Security Instrument. A written statement of any authorized agent of the Secretary dated subsequent to 60 days from the date hereof, declining to insure this Security Instrument and the Note, shall he deemed c onclusive proof of such ineligibility,. Notwithstanding the tOregoing, this option may not be exercised b y Lender when the unavailability of i nsurance is solely due to Lender's failure to remit a mortgage insurance premium to the Secretary. 1 0. Reinstatement. Borrower has a right to he reinstated if Lender has required immediate payment in full because of Borrower's failure to pay an amount due under the Note or this Security Instrument. This right applies even after foreclosure proceedings arc instituted. To reinstate the Security I nstrument, Borrower shall tender in a lump runt all amounts required to bring Borrower's account current Including, to the extent they are obligations of Burrower under this Security instrument, foreclosure costs and reasonable and c ustomary attorneys' fees and expenses properly associated with the foreclosure proceeding. Upon reinstatement by Borrower, this Security Instrument and the obligations that it secures shall remain in effect as iF Lender had not requir ed immediate payment in full, However, Lender is not required to permit reinstatement if (i) Lender has acce pted reinstatement after the commencement of foreclosure proceedings within two years immediately preceding the co mmencement of a current foreclosure proceeding, (il) reinstatement will preclude foreclosure on different grounds in the future, or (iii) reinstatement will adversely affect the priority of the lien created by this Security I nstrument, i t. Borrower Not Released; Forbearance Ry Lender Not a Waiver. Extension of the time of payment or modification of amortization of the sums secured by this Security Ins trument grunted by Lender to any successor in interest of Borrower shall not operate to release the liability of the original Borrower or Borrower's successor in interest. Lender shall not be required to commence proceeding s against any successor in interest or refuse to extend time for payment or otherwise modify amortization of the sums secur ed by this Security Instrument by reason of any demand made by the original Borrower or Borrower's successors in in terest. Any forbearance by Lender in exercising any right or remedy shall not he a waiver of or preclude the exer cise of any right or remedy. 12, Successors and Assigns Hound; Joint and Several Liabili ty; Co-Signers. The covenants and agreements of this Security Instrument shall bind and benefit the successors and assigns of Lender and Borrower, subject to the provisions of paragraph 9(b). Borrower's cements and agreements shall be joint and several. Any Burrower who co-signs this Security Instrument but does not execute the Note, (a) is co-signing this Security Instrument only to mortgage, grant and convey that Borrower's interest in the Property under the terms of this Security Instrument; (b) is not personally obligated to pay the sums secured by this Securit y Instrument; and (c) agrees that Lender and any other Borrower may agree to extend, modify, forbear or make any accommod ations with regard to the terms of this Security Instrument or the Note without that Borrower's consent. PAR(GA) (020,1 Case 1:17-cv-00972-SCJ-JCF Document 27-3 Filed 05/12/17 Page 5 of 10 Deed Book 1 393 1 Pg 459 11.11111111111111111111111111111111111111111 13. Notices. Any notice to Borrower provided for in this Security Instrumen t shall be given by delivering it or by mailing it by first class mail unless applicable law requires use of another method. The no tice, shall he directed to the Property Address or any other address Borrower designates by notice to Lend er. Any notice to Lender shall be given by first class mail to Lender's address stated herein or any address Lender designates by noti ce to Borrower. Any notice provided for in this Security Instrument shall be deemed to have been given to Borrower or Le nder when given as provided in this paragraph. 14. Governing Law; SeverabIllty. This Security Instrument shall be govern ed by Federal law and the law of the jurisdiction in which the Property is located, In the event that any provision or claus e of this Security Instrument or the Note conflicts with applicable law, such conflict. hall not affect other provisi ons of this Security Instrument or the Note which can be given effect without the conflicting provision. To this end the provisions of this Security Instrument and the Note are declared to be severable. 15. Borrower's Copy. Borrower shall be given one conformed copy of the Note and of this Security Instrument. l b. Hazardous Substances. Borrower shall not cause or permit the presence, use, disposal, storage, or release of any Hazardous Substances on or in the Property. Borrower shall not do, nor allow anyone else to do, anything affecting the Property that is in violation of any Environmental Law. The preceding two sentences shall not apply to the presence, use, or storage on the Property of small quantities of Hazardous Substances that are generally recognized to be appropriate to normal residential uses and to maintenance of the Property. Borrower shall promptly give Lender written notice of any investigation, cl aim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the P roperty and any Hazardous Substance or Environmental Law of which Borrower has actual knowledge. If Borrower le arns, or is notified by any governmental or regulatory authority, that any removed or other remediation of any Hazar dous Substances affecting the Property is necessary, Borrower shall promptly take all necessary remedial actions in accordanc e with Environmental Law, As used in this paragraph 16, "Hazardous Substances" are those substances de fined as toxic or hazardous substances by Environmental Law and the following substances: gasoline, ke rosene, other flammable or toxic petroleum products, toxic pesticides and herbicides, volatile solvent s, materials containing asbestos or formaldehyde, and radioactive materials. As used in this paragraph 16, "Environm ental Law" means federal laws and laws of the jurisdiction where the Property is located that relate to health, safety or environment al protection. NON-UNIFORM COVENANTS. Borrower and Lender farthe r covenant and agree as follows: 57. Assignment of Rents. Borrower unconditionally assigns and transfers to Lende r all the rents and revenues of tire Property, Borrower authorizes Lender or Lender's agents to collect the re nts and revenues and hereby directs each tenant of the Property to pay the rents to Lender or Lender's agents. However, prior to Lender's notice to Borrower of Borrower's breach of any covenant or agreement in the Security Instrument, Borrower shall collect and receive all rents and revenues of the Property as trustee for the benefit of Lender and Borrow er. This assignment of rents constitutes an absolute assignment and not an assignment for additional security onl y. If Lender gives notice of breach to Borrower: (a) all rents received by Borrower shall be held by Borrower as trustee for benefit of Lender only, to be applied to the sums secure d by the Security Instrument; (b) Lender shall be entitled to collect and receive all of the rents of the Property; and (c) each te nant of the Properly shall pay all rents due and unpaid to Lender or Lender's agent on Lender's written demand to the tenant. • Borrower has not executed any prior assignment of the rents a nd has not and will not perform any act that would prevent Lender from exercising its rights under this paragraph 17. Lender shall not he required to enter upon, take control of or maintain the Property before or offer giving notice of breech to Borrower. However, Lender or a Judicially appointed recei ver may do so at any time there is a breach. Arty application of tents shall not cure or waive any default or invali date any other right or remedy of Lender. This assignment of rents of the Property shall terminate when the debt secured by the Security Instrument is paid in full. P4R(GA) Peo,6,0 imne Case 1:17-cv-00972-SCJ-JCF Document 27-3 Filed 05/12/17 Page 6 of 10 Deed Book 1 393 1 Pg 460 111011111111111NOINIIIIII111111011111 1 8, Foreclosure Procedure, If Lender requires immediate payment in full of all sums under pa ragraph 9, Lender may Invoke the power of sale granted by Borrower and any other remedi es permitted by applicable law. Borrower appoints Lender the agent and attorney-In-fact for Borrower to exercise the power of sale. Lender shall he entitled to collect all expenses incurred in pursuing the remedies provided in this paragraph 18, including, but nut limited to, reasonable attorneys' fees and costs of title evidence. If Lender invokes the power of sale, Lender shall give a copy of a notice of sale to Burr ower In the manner provided in paragraph 13 and shall give notice of sale by public advertisement for the lime and in the manner prescribed by applicable law. Lender, without further demand on Bo rrower, shall sell the Property at public auction to the highest bidder at the time and place and under the term s designated in the notice of sale in one or more parcels and in any order Lender determines. Lender or its designee may purchase the Property at any sale. Lender shall convey to the purchaser indefeasible title to the Property, and Borrosve r hereby appoints Lender Borrower's ;went and attorney-in-fact to make such conveyance. The recitals i n the Lender's deed shall be prima facie evidence of the truth of the statements made therein. Bo rrower covenants and agrees that Lender shall apply the proceeds of the sale in the following order: (a) to all expenses of the sale, Including, but not limited to, reasonable attorneys' fees; (b) to n11 SUMS secured by this S ecurity Instrument; and (e) any excess to the person or persons legally entitled to it The power and agency granted are coupled with nil interest, are irrevocable by death or otherwise and are cumulative to the remedies f or collection of debt as provided by law. If the Property is sold pursuant to this paragraph IS, Borrower, or any person holding posses sion of the Property through Borrower, shall immediately surrender possession of the Property to the purchaser at the sale. If possession is not surrendered, Borrower or such person shall he a tenant holding over and may be dispossessed in accordance with applicable law. If the Lender's interest In this Security Instrument is held by the Secretary and the Secretary requires immediate payment in full under Paragraph 9, the Secretary may Invo ke the rionJudicial power of sale provided in the Single Family Mortgage Foreclosure Act of 1994 ("Act") (12 U.S.C . 3751 et seq.) by requesting a foreclosure commissioner designated under the Act to commence foreclos ure and to sell the Property as provided In the Act. Nothing in the preceding sentence shall deprive the Secretary of any rights otherwise available to a Lender under this Paragraph 18 or applicable law, 19. Release. Upon payment of all sums secured by this Security Instrument, Len der shall cancel this Security Instrument without charge to Borrower. Borrower shall pay any recordation costs. 20, Waiver of Homestead. Borrower waives all rights of homestead exemption in the Property. 21. Assumption not a Novatlon. Lender's acceptance of an assumption of the obligations of this Security Instrument and the Note, and any release of Borrower in connectio n therewith, shall not constitute a novation. 22, Security Deed. This conveyance is to he construed under the existing laws of the State of Georgia as a deed passing title, and not as a mortgage, end is intended to secure the payment of all sum s secured hereby. 23. Riders to this Security Instrument. If one or mere riders are executed by Borrow er and recorded together with this Security Instrument, the covenants of each such rider shall be Incorporated into and shall amend and supplement the covenants and agreements of this Security Instrument as if the rider(s) were a part of this Security Instrument, [Check applicable box(es)]. ❑ Condominium Rider ❑ Growing Equity R ider ED Other [specify] P Planned Unit Development Rider Graduated Payme nt Rider NR(GAhom51 Pape 7 es w, \.) Case 1:17-cv-00972-SCJ-JCF Document 27-3 Filed 05/12/17 Page 7 of 10 Deed Book 1 393 1 Pg 46 1 1411111111111111111111111111111111111111111101 BY SIGNING BELOW, Borrower accepts and agrees to the terms contained in this Security Instrument and in any rider(s) executed by Borrower end recorded with it. Signed, sealed and delivered in the presence of: 6 QMPoi,-/L) lloolficiel Cynthia D Pardum (Seal) •Dorro,ter (Seal) -Borrower (Seal) (Seal) -Lloriower -BoBowez (seal) .Burrower P4R(GA) lona) (Seal) -Borrower (Seal) (Seal) •Borrowor -Borro wer gpBNB County Case 1:17-cv-00972-SCJ-JCF Document 27-3 Filed 05/12/17 Page 8 of 10 EXHIBIT "A" LEGAL DESCRIPTION: Deed Book 13931 Pg 462 II9111111111111111§NIM11111111111111161 Lend referred to In this comm itment Is described as al l that certain property situated In the County of DE KALB and stets of GA end being described in a d eed dated Sep-21-2000, and recor ded Sep-29-2000, among the land records of t he County and state set forth a bove, and referenced as follows: Rook I IGIG a nd Page 703, T he fol lowing describe al l that t rect or parcel of land lying and being in a nd Lot 30, of the 10th district, Dekalh County, Georgia, and being Lnt 143, G luck A, Camelot, Unit One, as per Pla t Recorded in Plat Book 1 12, Pages H3-90, and rerecorded In Plat Bonk 1 12, Pages 97-104, and rerecorded in Pint Book 1 14, Peges 2B-35, Dekalb Uountg, Georgia Records, which recorded Plat Is i ncorporated herein by refere nce for a more complete description of said p rup2rty. Tax I .D. 11 1 10161703 R ecording Data: Gep-29-2000. Exe cullun date Sap-21-2000 Case 1:17-cv-00972-SCJ-JCF Document 27-3 Filed 05/12/17 Page 9 of 10 Deed Book 13931 Py 463 G E0 PITA - G RANTOR: Cynthia D Perdum Undo Carter Clerk of Superior Court Dekalb Ctv Ga. LENDER: Weahington Mutual Flank, FA, a Corporation 1111101111011MMIIIIIIIIIIIIIIM1611111 D ATE OF SECURITY DEED: November 22, 2002 LENDER //: 0046897336 WAIVER OF BORROWER'S RIGHTS CASE 0 105-0910407 BY EXECUTION OF THIS PARAGRAPH, GRANTOR EXPRESSLY: 111 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; Ill 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; (SI 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 TD EXECUTING THIS DEED; 14) ACKNOWLEDGES THAT ALL WAIVERS O F THE AFORESAID RIGHTS OF GRANTOR HAVE BEEN MADE KNOWINGLY, INTENTIONALLY AND WILLINGLY BY GRANTOR AS PART OF A BARGAINED FOR LOAN TRANSACTION; AND 151 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: Cynthia D Perdum (Seal) - Grantor NormaPublic CLOSING ATTORNEY'S AFFIDAVIT (Seel/ C cantor (Seal) 43 rumor (Seal) Grantor Before the undersigned attesting officer personally appeared the undersigned closing attorney, who, having been first duly sworn according to law, states under oath as follows: I n closing the above loan, but prior to the execution of the Deed to Secure Debt and "Waiver of the Borrower's Rights" by the Borrowerls1, I reviewed with and explained to the Borrower(sl the terms and provisions of the Deed to Secure Debt and particularly the previsions thereof authorizing the Lender to sell the secured property by a n onjudicial foreclosure under a power of sale, together with the "Waiver of Borrower's Rights" and informed the Bon-marls) of Borrower's rights under the Constitution of the State of Georgie 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 Borrowerls) of Borrower's rights. After said review with and explanation to Borrowerlsr, Borrowerls) executed the Deed to Secure Debt end "Waiver of Borrower's Rights." Based on said review with and explanation to the Borrowerlsl, It Is my opinion that Borrower(sl knowingly, Intentionally and willingly executed the waiver of Borrower's constitutional rights to notice and Judicial hearing prior to any such nonjudicial foreclosure. S worn to and subscribed before me , FORECLOSURE NO DISCL'O'SURE on the date set forth above. .105 Attorney 0.C.G.A. Section 7-1-1014(31 requires that we Inform you that If you fell to meet any condition 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 rTmlasterltrin through foreclosure. Cynthia D Perdum RI P9801CW '94011. RECIPONIC LASER FOAMS, NC 15001311 roil 1 ice Case 1:17-cv-00972-SCJ-JCF Document 27-3 Filed 05/12/17 Page 10 of 10 When Recorded Return To: Nationwide 'Fide Clearing 2100 Alt. 19 North Palm Harbor, FL 34633 WAMU #: 0046897336 Wells*: 0254829252 Pool *: GNMA 00603371CD ASSIGNMENT OF MORTGAGE/DEED Deed Book 1 9478 P9 358Filed and Recorded Dec-15-2006 hlt4one2006- 0 229341 Linda Curter Clerk or Superior Court DeKalb Countvr Georsla FOR GOOD AND VALUABLE CONSIDERATION, the sufficiency of which is hereby acknowledged, the undersigned, WASHINGTON MUTUAL BANK F/K/A WASHINGTON MUTUAL BANK, FA, WHOSE ADDRESS IS 2210 ENTERPRISE DRIVE , FLORENCE, SC 29501, (ASSIGNOR), by these presents does convey, grant, sell, assign., transfer and set over the described mortgage/deed together with the certain note(s) described therein together with all interest secured thereby, all liens, and any rights due or to become due thereon to WELLS FARGO BANK, NA, A CALIFORNIA CORPORATION, WHOSE ADDRESS IS 1 HOME CAMPUS , DES MOINES, IA 55121, ITS SUCCESSORS OR ASSIGNS, (ASSIGNEE). Sold mortgage/deed is executed by CYNTHIA D. PERDUM to WASHINGTON MUTUAL BANK, P.A. and recorded in Deed Book 13931 page 454 and/or as Instr. Number 2002-21'9B62 in the office of the Clerk of the Superior Court of DE KALB County, Georgia. In witness whereof, the undersigned has set his hand and seal has hereunto se Mei ands THIS 02ND DAY OF DECEMBER IN THE YEAR 2006 WASHINGTO MUTUAL B F/K/A WASHINGTON MUTUAL BANK, FA (seal) Co W4shinwor,By: IPOrate Searn-'"utialiaanMARY 70 ASST. VICE PRESIDENT a8 Not De, Ak domed Signed, s - and delivered on the dale above shown. SUSAN STEAA NN Witness CRYST MOORE Witness STATE OF FLORIDA COUNTY OF PINELLAS On THIS 02ND DAY OF DECEMBER IN THE YEAR 2006 , before me appeared MARY JO MCGOWAN , to me personally known, who, being by me duly sworn, did may that he is the ASST. VICE PRESIDENT of WASHINGTON MUTUAL BANK F/K/A WASHINGTON MUTUAL BANK, FA and that the seal affixed to said instrument is the corporate seal of maid corporation, and that maid instrument was signed and sealed on behalf of said corporation by authority of its board of directors, and maid MARY JO,D GOWAN acknowledged said instrument to be the free act and deed of mai orporation MAR NOR I IS Notary Public My ceramist/ expiresz 05/26/2009 Document 1'repared By: J. Lesinskl/NTC,2100 Alt, 19 North, Palm Harbor, FL 34683 (800)346-9152 II MWALEONORGERHOLDNoliry PuNkastecf9061 :My Cons NO,""" May 26, 2009_ D0 3021eonded th moo) 43.2-42s4 1 111 111 III III 111 III WF WMASN 6362334 TM1179316 (c1,61}11,10A1 A L L S T A T E L E G A L ° EXHIBIT Case 1:17-cv-00972-SCJ-JCF Document 27-4 Filed 05/12/17 Page 1 of 1 IN THE SUPERIOR COURT OF -DEKALB COUNTY .-. STATI?, OF GEORGIA CYNTHIA D. PERDUM vs CIVIL ACTION NO.: WELLS; FARCiO BANK. N.A. §' 13(1/5 Defendant. 7 COMPLAINT FOR WRONGFUL ATTEMPTED FORECLOSURE, TITLE FRAUD, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS ANDDAMAGES CONIES NOW CYNTHIA D. PERDUM. Plaintiff' in the above captioned action. and complains aeainsi the Defendant for Wrongful Foreclosure. Deelaratory Relief, Injunctive R el ief. and Daina2es. and shows that Defendant violated the provisions of O.C.G.A. 2i-2- 1 14 et seq. Plaintiff suNinits that Wells Fargo Bank, N.A., submitted fraudulent documents and hri aldnuv lied to this .Honorable (i.''.eurt; Defendant fraudulently represents that they have standing, and that they had coinplied with the statutory prerequisite to eNcrcise the power of sale under power aJ2Jtinst Plaintiff in violation o1.0.C.Ci,A. §44-14-162 et seq. I n the Complaint. Plaintiff seeks an entry elan Order enjoining the foreclosure on the erontds Li t. imer 0110 Wells Farce Bank.. N.A., hereinafter Defendant, is euilty of attempted \\,ronJ21111 foreclosure. paiTicipating in a mortgauc scant. Intentional Infliction of Emotional Distres. and title fraud. Defendant has no standinu to foreclose on Plaintiff's loan. PLdivilIbrings this action s this is her only remaining option. In the Complaint. Plaintiff seeks the entry elan Order enjoinini2 the foreclosure sale Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 1 of 27 FACTS 1 . On Or about September 21. 2000. Plaintiff purchased a home tborn Rivercrest Builders, Inc. located in 5 I no king Arthur lane. killenwood. Ga. 30294, plaintiff c x ec uted a prom t ssotA t note und security in Favor of Sun America Ntlort2a2e Corporation whose busi ness address is 5775-C. Cilenrid,tc Drive. Suite 200, .Atlanta. Georgia 30328. in eNehange for a loan in the amount of One I lundred Twenty One Thousand Five Hundred (8121 ;550,00) Dollars: d uly %coaled September 29. 2000 in Dekalb County Superior Court. Deed Book 1 1616 at bitter 70T,710. On or about September 2 , 2000 Plaintiff's deed was assigned to Fleet Mortgage Corporation, whose business address is Florence Mall 1945 West Palmetto, Street; Florence. South Carolina.29501: duly recorded September 29, 2000 in Dekalb County Superior Court. Deed Book 1 1616 at Pane 71 1 , 2. on or about November 22. 2002. Plainti li refinanced in favo r of Washington Mutual Bank [A. \\ hos,cimsiness address is 9451 Corbin Avenue. Nort bridile, CA, 91324 in eNchant2e t'or loan in the amount of One Hundred Twenty One Thousand Four Hundretd T hirty Nine t tS 1 -1 1 .-09.0o) Dollars: duly recorded December 2. 2002 in Dekalb County Superior COUr1, Deed Book 1:1 931 at Pa 's 454-462. 1. on or about November 22, 2002. Plaintiff eNccuted a Waiver of B orrowers Rights: duly recorded December 2. 2002. in Dekalb County Superior Court. Deed Book 13931 it Pane 46Tt. Plaintiff submits that her fifth and fourteenth amendment r ights are inalienable. and as such. cannot be waived. on or Llboui March 18. 20I0. Subordinate Deed or Trust fm- yl Pieintilitcy HI ID and \Voshin.lon Mutual Bank F.A. as Trustee in the amount or 6.206,85i duly recorded ilun(!. 17. Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 2 of 27 002. in Deka11-, County Superior Court, Deed Book 13330 at Pate 35. On or about October 16, 21109 a Cancellation Deer/ was. filed hi' ilori:an Chase 1V..,1. rrs .Su ccessor merger to Washinvem Buick dub, recorded December 2. 2 002 in Dekalb County' Superior Court. Deed Book 21691 at Paoe 30. (.•, On or about February 1 1 , 2003. it Cancellation Deed was Filed by Washin!non Mutual Bank F. A in Cava . of Sun America .Mortoaie Corporation; duly re corded December 3. 2003 in Dekalb County Superior Court, Deed Book 14279 at Page 53. on or about December 2. 2006. Assignment or Security Deecl ssas tiled by ll'ashiavoii Ihitaa/ Bank lAa Washington Mutual Bank FA. whose busines s address is 2110 1 nterprise Dri\•e, llorencc. SC 24501. us ASSii.11101', and sold. assigned. conveyed and transferr ed Plaini i lis loan to Irells FarQio Bank, a California Corporation, whose business address is 1 Home Campus. Des Moines. Iowa 55121. as Assignee; duly recorded December 15. 2(.106. in Dekalb County Superior Court. Deed Book 19478 at Page 358. 8 On or about March 15. 2013, Plaintiff received a foreclosu re Notice. from the law office of Shapiro & SwvIrt2er, 1.,1..1) whose business address is 2872 Woodcock Blvd., Atlanta. Ga. Th .'14 t. Pl:tiuti l'i is :at :il l times herein mentioned. in possession of s aid property. I U. Plaintiff submits that she is a pawn in a mortoaac scam, orchestrated by Defendant who submitted fraudulent and unpersuasive evidence to this honorable court in violation of OCG.A §44-14-162 et seq. 1 i . Plaintiff s inlOrmed and believes and thereupo n alleges that Shapiro & Swelfeger. LLP 2V12 Woodcock 131yd., Adanta, 3041 Walls Dunn Bank, N.A. ntin, as attorney for Defendant Bank. Wells Faruo Bank. N.A. and each of them. cfaim an Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 3 of 27 interest in the property adv;:a.tre to Plaintiff's herein. However, the claim of s aid Defendant is without nny rioht vviittttsoever. and said Defendant has no legal or equitable rit2ht , claim_ or i nterest in said property. CI' therefore seeks a validation of' Defendant's legal interest in the title to the subject property as Plaintiff submits that title is vested in her a lone. i 3. Plaintiff brines this action as this is her only remainiry2. opt ion, In the Complaint, Plaintiff seeks the entry of an °Mer enjoining the foreclosure sale as Defe ndant is attempting to take t itle to Plnintifris properly using tt fraudulent assignment. WRONGFUL FORECLOSURE 4. Plaintirr leueslhat Wells 1=ar2o Bank. N.A. is attempting to forec lose on N,lay 7. 2013 even though they ate not the secured creditor with authority to foreclose und er Georgia 1 5. Cleorein courts have reco2nized claims for injuncti ve relief to (1) set aside a past wroneful foreclosure. (2.) danlages arisine out of a past wromlful foreclosure, (.3) injunctive relief to prevent on untiuthori /..ed foreclosure and (4) kinages arising out of an attempted un,,tuthori».ed foreclosure. Cur/ ;-. Fed. Say.d. Loon, 244 S.E. 2 SI?, 812 (Oa, 1978): Cu/170/f)? 13(:Ink v. Dickens. 4.'23S.L. 2" (Cia. 1944 ); Wes/ r. Kootäratt. .584 S.E. 2" 664. 665 (Ca. I l)89); Sole City Peanut il./i/tih,et, Co. t'. P/umers 1 6, Where at l'ore.closure sale has not occurred. the Court assesses whether the Plaintiff has pled t he elements required to support tt claim fOr damas2es based on wrongful attempt ed foicelosure car t:or injunetive relief to prevent ;An unauthorized roreclosure . Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 4 of 27 . CC ivcot4riimi a C lint for damages based on wrongful attempted foreclosure where a foreclosure action was commenced but not completed wher e pi -d intiff has shown that defendant knowingly published an untrue and derogatory statement conc:ernino. the Plainti is financial condition and that dumages were sustained as a direct result of this Plaintiff has repeatedly asked the Defendant to validate the de bt pursuant to die fair Debt Collections Practices Act. IP, ,a.iil :2applied and was :approved for Horne Sate (jcori,ia Hardest Hit fund. August 2012. When Home Safe requested that the debt be ifl idated. Itt)CPA I a 1 Sf ;i 1092f (6) (a) ). DclLnd5flt could not and did not do so resulting in Plainti lit-s application being terminated. (See Exhibit A.) h. Ph:drai h l. has (men repeatedly requesting tin affordable loan pa yment since 2009. Although Plaintiff has repeatedl requested a modification; principal reduction or any indication th at DQRndant mac willing to work with Plaintiff pursuant to 201 1 OCC Consent order. She made it clear that she is a divorcee. with a medically fragile child however she was never offered a solution. 1 9. dihe Fraud EnfOrcement and Recovery Act of 20.09 was to improve enforcement of triortkiae fraud, securities and commodities fraud, financial institution fraud, and other frdirds related to re(/era/ as.s.i.slante owl relief protfrom.v. l'or the recovery of funds lost to t hee: frauds, and for other purposes. :o. At the height ()tithe niong c crisis, millions of dollars were given to the hanks to assist hoinco\\ and these funds were never applied or misappropriated. 2 1 . Plaintiff submits that she is entitled to have access to the Fun ds which were allocated on her She is entitled to applY tor and he considered for the Federal programs which were initiated and funded for her use and benclit. Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 5 of 27 22.'1 1 ;,2 False Claims Act (IS LLSC.§ 372) et s ,) 10 protect trout hood the Federal c[sSIStapi;L: and relief runts eNpended in response to our current economic crisis. Plaintiff stihmiJs that ,J lie ha:i been deprived of access to these resources in violation 01: 1S U.S.C. et seq. A . Plaintiff submits that Defendant intentionally and knowin ly published false in tormalion, .As a result of Defendant's acts. Plaintiff sustained great and irreparable injury. Defendant i l leJjally placed a notice copy which has been published in a general circulation newspaper within the county \\ here the property is situated. for a period of four succeeding weeks prior to the she date. Plaintiff have been libcled, \vrongfully humiliated, ernharrasscd, and tJ.ronelull\ subjected to public scrutiny. ridicule. and embarrassment since. Defendant has no atithoritY to foreclose. 24, PILiin[iIT submits that in spite or her repeated pleas to validate the debt. Defendant has 51Anckred her by reporting false information. Although Defendant claims they are the sceured creditor as allegedly evidenced hi' a 2006 assignment, it is clear that her lo an was cancelled in 20(10 H. .1 1) Morgan Chase and not Defendant. 2 . Ph.,J,Intiff asserts that Defendant has no authority to ellfOrC:,e the foreclosure provisions a the security deed. 26. Plaintiff submits that sine(' Det'oncLni violated the strict notice requirements of 1 4- 16-, et scq and have not identified the true secured creditor; this Honorable Court should enjoin the sale Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 6 of 27 7. Plaiutiffcannot he fully compensated in damage-s, and is wit Aoti. / an adequate remedy at law because the eNact amount of:dm-mile Plaintiff has and will sustain will he difficult to determine. Plaintiffls:nnotional and physical distress c annot be measured. Plaintiri':ts.,_ierts that Defendant is i„!.tiiltv of wrought!1 foreclosure. title fraud. fraud, i ntentional nillietion of emotional distress. negligent infliction of emotional distress. and unfair business practices. 72). A> a further result or Del-end:a-It's acts. Plaintiff has sustained actual damages. If-these acts me perm ittal try continue Plaintiff \vill be further damaged in an amount to be alleged when additional itiarnapti have been detctrminutt. 30. Plaintiff submits that as a result of Defendant's acts. particularly not validating her debt when Home Safe requested it. she sustained actual damalzcs. (See ENhibi t B) VOCl/S VULII i1}11(11 V. NH-iv/age: Gre6!no. Inc. , l) G a. A pp. 121 .55t SE 20 44(1 (2001). The focus Co urt held that foreclosure is one such instance in which an injunction is appropriate because when an interest in land is threatened \\ ith harm such harm is deemed to be irrepa rable to the unique character of the p i-opertv interest. and i1101-wy damages are not adequate compen sation to protect the i t-it...Test harmed.- Land. under Georgia law. is deemed suffici ently unique that it is e ntitled to equitable remedies to protect the interest harm ed. See the f,aI Ioty i HU: Rife v. Corbett. 264 Ga. 871 145$ SE2d 581) (1995) (injunction to protect an e a..ement): Benton v. Patel. 257 Ga. 669, 672: 362 SE 2d 217 (1987), injunction to stop foreclosure): Black v. American Vendilq2, Co.. 239 Ga. 6 32. 634 238 ;r:-cl 421) (1977 ) he law rela:.ds as suffieiently unique that equity Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 7 of 27 en fereu centrelei for I', etildlsak er Icasc"); ClarL v. Cri..21e, 141 Ga, 703, 705. 706 . ( 10 .41( pcje,sific p6Tfermance of enntraut to soll lanel.) Therififerc. when an interem i n lttnel is 111N'ak:11CCI cquital-±le Hurictive relief 0 approprinle because such harnn is deurned irreparable 10 the unique charixtur of the propelly ii-nersi. i.e., mency crama2us adecivate cmnpeinsahen 10 pretect ihn intuest. hanucd. Sec ,1eneraliy Ccntral or G a. R. CO, v. Arnuricus Consitr, Co., 133 Co. 392. 398. 65 SE g55 (1900 (irl. -;parablc injurt,t dctind to enfein nuisetnee: sec alse Reih v. Conner. 235 Gra. App. 866, 868-869 ,510 550 ( 1 ')98) 10100ese5 ei granter And othirs in reArictivt er(enaras ror iheir henefl1). q uert rriav enjoin a ferccInstire sak:, \vficire the- authoritv le f oreclnsc is in c ietuicel. Arifiaai e/, In« r 527 854. 856 (G a. -'(..)00) u. DLFUNI/ANT CANNOT OBTArN STANDING BY AN ACT OF FIZAIA) 1'11,2 comurds 51 the paragraphs sut forth above nie incorporaied kies as iffully sei t fertil herein. :3. lOijnti 0 u validation Dcfencian6 legal imerest in the title to the subject pr opertv Lis PHnlift uhnii1s stondine cannot he ae.einziel hy an nute of ftcud Plairitih snhnJis ihm DcifermkinCs suriding is predicated upen 0 fratidulein assignincnt. 35. lIn 1.e•itc n eiiiira (er rclief ihm is pleusible. the plaintirr ra ust plend lectual (:.onteni that Criurt In drum 1110 reaser 0l,-2iyirercne.f.,: thei tOn cie fenci nnt i r h aNc (er ih, raiseendeut al leL2ed.- Ashc9(/// r kilird. 139 S. Co 1937. 1949 (2009). requires Liiere ihen u .shixr possibi l itv that a dCfcridonl heract ed und coniplebni thin allügei; Eicis that nye, "mcrely corl ist2111 with"linhiliiv stops shon of Ihn Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 8 of 27 line between possibi l ity and plausibility of 'entitlement to relief."' Id. (citing Tworibly, 55)) N.h. at 557). 3,6. Federal Rule of Ci':i l Procedure 9(b) FRuIt 9(b)") requires that fraud he pled with panic:id:why To satisr Rule 0(b), "the Plaintiff must allege. (I) the prec ise statements, documents. or misrer3resentntions made (2) the time, place, and person responsi ble for the :latement: (3) the content and manner in which these SIfilului.1 115 misled the nlinliff; and (4) \\ hat die defendants coined by the alleged Adcrnr.s- r, Mort. Elec. Regisirorion sot.; -)01 -]. WI. 5077356, at S (N.D. Ga. Oct. 17. 2012j There are fi ve elements to a fraud claim in Georgia: -(1) tt false representation or omission of a materi al ,ract: (2) seienter; (3) i ntention to induce the party claiming fraud to act or refrain from actin2: (4).iust ifiable reliance; rind (5) damages.' Lehman v, Keller. 677 S.E.2ei 415. 417 (Ga. Cr. App. 2) t09). 7,7. On heprember 25. 200S, Washington Mutual Bank. KA. was declared insolv ent and placed i nto recen, ership or the Federal Deposit Insurance Corpordtion. The FDIC sold Wnshiporon M uival Bank:. F.A. and its subsidiaries to JP Moreau Chase. 38, Pursuant to the notice requirement of 12 USC § 2605 (B ') ENception for certain nroeeedings The notice required under paragraph (1) shall he made to the bo rrower not more than 30 drivs ane.r the effective dare of assignment. sale, or tra nsfer or the serviciml the mol'ir2z1Ile loon (will] respect to which such notice is made) in any case in which the rISSHODACTil. uk., or Irrin:l.el• of the servicing or the mortg,:itle loan is preceded by- termination or the contract for servicing the loan for cause: ( ti) ci.)mmencement or proceedings for ban kruptcy of the seryiceK or ll.vininencement of proceedinzs ht: the Federal Deposit Insurance Corpor ation or the Resolution 1 Cotporarion for conservatorship or receivership of the service,. (or an entity ht' the servicer is. owned Or controlled). (Emphasis mine) 39. Piirsonnt to the forei4oing federal statute. JP Nlorenn Chase had 30 days to assign. and not ify Plaintiff hat the assignment recorded December 12, 2006 by Wel ls Fargo Bank would he transferrini2to IP Morcott Chose. Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 9 of 27 40, Plinntiff'4ubmits that .10 .N1or an chase filed a cancellation deed in 2009 on her behalf and not \\:cdis Fare° Bank. (See para raph 5 hereht). 4 1 . The: Wells Fargo assiuntncu[ lists a pool number for a 30 year Ginni e Mae CD Created in September 200:). Wells l arco Bank. NA is the owner of the CD. however. Ginnie Mae is n o the investor or owner. 4.2. \Yells Fargo Bank. NA allcaes they are the investor of Plaintiffs' loan. Th e Cl) is held he the New York Federal Reserve Bank. It is 30 year CD contain inO 127 bundled loans with a S" epkimber 2033 miturity (Late: Vv'ells Fargo Bank. NA is t he ow nt. r and investoL 43. Pl:iii'di IFS :111eL'-cd loan numbor (0254829252) l isted on the fa ce of the ai:signment and tille‘.c.,11\ bundled in the CD owned be Wells Fawn Bank. NA is not listed and is not pan o f the bundled loans. 44. Defendant presented fraudulent documents to this honorable cour t knowing the validity of said document:: would not be questioned. The Courts used the documents IS proof Of Defendant's alleged .,_itandinlL Damages: Defend:Int is fraudulently anal-l ink-1Q to acquire title to Plaintiff's home. 45. It is clear that Defendant created this document in ordt?.r to induce Lite Court into l2c lievin,, l ad lcnl suindin,./ to foreclose when they clearly did not. I I I, TITLE ['RAH) 40. The contents' of the paraLtiraphs set forth above are incorpo rated here as if fully set forth herein. 47, Ro"ardino the matter fraud. the law is clear; e ntities foreclosinv_ upon homeowners rnost compl , with Geor;_2ia's :itatutory prerequisites to foreclosure. The ent ity st;tt•cking to Dice lose must actual legal authority to exercise the power of sa le. Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 10 of 27 48 -Could there be a more conclusive defense to the foreclosure than that the part: proseetitinL2, it was not the holder of the debt or demand secured by the mortgage, which he failed to produce called on. mid offered nothing to show that he controlled it W to C NI)I:1111 Why it \\ tts 1101 i.01111C011111lil tlt trial." Triti71 n Alois/LT:7., 1 1 B.R. 1 .)5 (I3dflitr. cia 1 (:) 49. (icor)2ia has prescribcd non-judicial foreclosures with minimal protections for homecn,vnors. Homeowner:.; are routinely foreclosed on pursuant to t he stm utory piAa'cr.01 sale without a pre-foreclosure hearing. 0.C.G.A. §44-14-162 et seq. As the Eicor ia Coma or Appeals held. -the true identity or the secured creditor must be included in the notice of for2clost.so sale. Reeser. ['Fol./flow Fancling LI,P, 730 S.F._ 22'551 (Ga. Ct. App. 'ISrtrbb. n Book of .-Imcrico. 844 I . Stipp. 2d 1267 (N.D. Cia. 20121 The foreclosure process has become an undisciplined and lawless rush to .seize homes. )1' there existed a compliance prerequisite pursuant to 0.C.G.A. §44-14-162 et seq. many attempted foreclosure's would be plainly void under Georgia statutory and ease law. Geortlia law requires that -AI! transfers of deeds to secure debt shall be in writing siLlned h' the Ltrriniar or if the deed has been previously transrerred_ by the last transferee. and witnessed as required for deeds. 0.C.G.A. 644-14-64. As beiw ecn the parties lo ills' instrument. however, the deed is valid and bi ad i n absent a o r ry,nict . nowon r. Boil 172. Ga. App 750. 752,324 S.F. 221 477 (Ca. CI. App. 53. Si .g iltlltlre> Of FrICH:11 trlt2 SC:-;. rt::(Ittirt'd to create val id assignments security interests 0.C.G.A 04-13-33. l'i,HiutTsuhmits that I l l inois. Attorney General Lisa IViaeli i2an today filed it la \vstiii Varionicide Title Cleariot, far Ellin,~ fault): documents. count': recorders, Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 11 of 27 .',:oiionwide ride Cleaninv inc. OTC) is a Florida-based con!Lanv that prepares doc.prileuts for loorri;a0-e.s'errieers to use dt,ainst borrowers' who are in default, lotcclosura or ban krupter. FlruelLcs ix;ed \s.,:re a key contributor to the mo•eigtiat costs by ullsttermin inLii t he rind iiectiritcy of the ttiorti:icq-,to servicing and forec1osurc pro ccss.' Ation loy n yt i,•ides ii kill 's 11. thierit,tatre loaan seroices to eight of Ihe Liptl1 lenjefs and thor u2ade rs in the NI C spetaaliires in creating, tprocessing and recon,:hit i nrai't ,e \vlit it.it me mien a nd Hr a lendef to foreclose on a horntr.\,cr, n t • Co:)t; Cdurity Circuit Court. ',Wet:es numer(»sts violations at We t. or!. taner fnual and l)eceptive Praclice:i .Aei arid Decepiive Tradc Pyacii lces ihe volt to rectairc NI• IC io treview and corbeet all bei.nhedts crewed recorded in Ill inois. one pa:. hunt: Lill revenues, i.i'irtftsand .?ill .ichter eil H ti\ hole or pari due io uniaotrlul nri,letic,-e,-:;, T he suit also asks the court to iigaInst IIIC compht\ Plaintiff:sill:wits that there has been no investigation as to the abuses of Nationwide Title ct,,,arhy, Further. without the benefit of an Affidavit of Forgery; Plaintiff i i l ltotrs that the assigriMent is fraudulent. In an article written by William Alden and Rvan 'McCarthy and published 1 1 1 13/20'0 by the [-Millington Post: ìn more than two hours of video footace recently uploaded to YouTube, three aileged "roho sinners" describe how they approved thousands of mortgage documents a day without reading them, Rohn-signing is the latest ugly turn in the ongoing mortgage mess. Banks and loan servicers appear to hove illegally processed countless documents in the rush to foreclose. The scandal has spawned a host nest or lawsuits, including a Federal lawsuit brought against Ban k of America and a • by 50 state attorneys general. The three employees of Nationwide Title Clearing -- notary Crystal Moore, "signer in charge" Bryan Bly ano witness Dhurata Doko -- gave depositions to lawyer Christopher Forrest, reports the Their testimony presents a detailed and often shocking portrait of the assembly- line like process for approving documents The i?mployees admit they didn't read the thousands of documents they signed daily, and they betray gnoraitce of key aspects of the mortgage industry. in some cases. according to the testimony their signatures were affixed to documents without their knowledge. One employee admits he doesn't know how many companies he had signed for as a vice president. Another suggests she doesn't know anything at all about the mort gage industry. And the third says ore 10,N exactly what she was authorized to do on behalf of her employer -- her job was, simp'y. to "sign the documents." Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 12 of 27 Forcclosurc ol the security in the absence of a valid assignment is nul l and void, lit ite B.R. 959. 962 (N I). Ga., 1994) 7. Plaintiff submits that Defendant submitted an invalid and fraudulent assignment. In l ight of Defendant's fraud. Plaintiff fi led an Affidavit of Notice and revocation of Power of Attorney attached hereto as Exhibit C. The Defendant's fraudulent assignment slanders the tit le of any property foreclosed upon that relied upon an assignment thereby causing Plaintiff. A. 14-1 62(b'} has strict notice requirenleMS: the identity of the secured creditor mug be retooled. Defendant cannot acquire interest in a property through a fraudulen t assionment and therefore lacks standing to foreclose, Dovenpori r FISBC hook. 275 Mich, App,344: 739 NW2d 383 (2007). In Davenport, the defendant bank was ass.112nc:ci a mortidtaite interest in real properly on October 31 . 2005, by which point the plaintiff was in ciefaull,on the 111011‘1aL.N.`, hl. at 345. The defendant published its first nonce of foreclosure cii kitober 2[,)05, hi. A foreclose sale followed at some lime later. Id. In other words, in ,0 iiiuport. the defendant bank did not have a mortgage interest in the property at the i ime i t initiated titireelosure proceedings by advertisement," in Davenpori. the bank [pUritiffi d id not have a mortgage interest when it initiated foreclosure proceedings, and therefore. the -for(xlosure. proceedings 1W.C1 void 0/, at 348 .A mornlagce must have r ecord title to a mortgage both at the time of foreclosure by advertisement, and at the time of he Ibrielosurci Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 13 of 27 od. In \Veils Vargo e, Reyes. 867 N.Y.S.:1(121 (2008) the court dismissed the foreclosure with prejudice and round that the bank committed fraud on the Court and the court imposed stimetions because the court found that Wells Fargo never owned the Mortaage. , I law is clear: the lender must follow the correct procedures in order to exercise the power Or sale under the laws or ihe state of Georgia. V,./acre the lender ails to follow these strict rules: especially where there is clear indication of fraud; the attempted forcclosure sale is void ad Undo. DA M A GE S The contents of the paragraphs set librth ithove are incorporated here. as ii dliv set Forth hcA2n, Nanomil Banking. Act Rule Id LSC.b 29i states: "A national hainkirat itssociation may purchase. hold, and convey real estate for the l uhie' i tie purposes. and for no others: First. Such as shall be necessary for its accommodation in the transaction of its business. Second. Such as shall be mortiitnied to it ini:tood faith by \\ av (insecurity for debts previously contracted, Third, Such as shall be conveyed to it in satisfaction of debts previously contracted in the course of its Ldtinus, Fourth, Such its it shall purchase at sales under judgments, decrees. or mortgages held be the zi..isociiition. or shall purchase to secure debts due to it. But no such association shall hold the possession of any real estate under mortgage. or the title and possession of any real estate purelkised to Sec ore any debts due to it. ihr a longer period than live vents her real estate in the possession of a national banking association upon application be the association, the Comptroller ol. thc. Currency nine approve the possession of any such real estate h\ such itssociation :or a period longer than five years, hut llot to exceed an addidonal Federal Reserve Act Section Y Civil Money Penalty it slates: ..Any meinhcr bank v. hich. and any institution-affiliated party (within the meaning of section ..but of. lie Federal Deposit Insurance Act) with respect 1.0 such menther hank who, viclittes uunv pro\ isiom of any regulation issued pursuant thereto. shall forfeit Find pee c i ii pcTmliv of it to more than 55,000 for each (1al, (luring which such violation continues. f l,:mphasis mine) Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 14 of 27 O4 ,\s a result -)l.DQ-lenclant's fraudulent acts. Plaintiff sustained Ltreat and irreparable injury. Demand is herewith made to enjoin the sale and award Plaintiff compensatory damaues us she ins met her burden pursuant to Federal and state statutory and Geor2.ia ease law. Plaintiff cannot be rully compensated in damages. atici is without an adequate remedy at l a \\ because th: evaci amount of dainae Plaintiff hS 2fld wil l sustain is difficult to determine: s crnotio 1 and physic:al distress cannot he measured, Plaiatiff assorts ku Defendant- is (2..tiil ty of intentional infliction ot:L.rnotional distress. ne.plieent infliction of c:motional distress. unfair business practices. and v,ron,._ii.ful .5!; a further result of Defendant's acts. Plaintiff has sustained actual damages. If these acts are p2.rrrilited to continue. Plaintiff \vill be further damaged in an amount to be alleged when damalles have been determined. H 12T,F0 RE. Plaintiff prays fur judgment a(2ainst Defendant as follows: a. That the pendim! k)reclosure he enjoined: b. Thal the Court declaratory jul_unont which states that Derendams assignment is rratidltlent: I title to and possession of the subject property: u For a declaration and determination that Plaintiff is the righli-U1 holder of title to the property: For a judinnent 'brevet enjoininu said Derendala trant claimnal any estate. right, title or i nterest. in the subject proprly: For costs of Mt herein incurred: Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 15 of 27 CT In Defendant's hold submission of fraudulent documents which were. presented to the court clerk and recorded. and for Dk.rendant's violation of 12 USE. § 2605 (B): 8 3729 et seq. and National Banking Act kule 12 1.J.S.C.§ 29, Plaintiff asks that this honorable court impose sanctions pursuant to the terms of the. federal Banking Statute, \vird plaintiff actual dtitnasi2es in the amount of 5250.000 toacther with punitive damages Js so determined ho this honomble court and Sit such other and lint-ther relief as the court ma\ deem jUSI and proper. Reispectfully submitted. this day of May. 2013. D. Perdui-n Arthur Lane 1 i 1 1enwo,.)d. 30194 Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 16 of 27 EXHIBIT A Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 17 of 27 NOTICE OF WT1'FIDRAWAL Date: 1.1/2/12 hoar Cynthia D. Perdum -- 5100 King Arthur Lane, Elienwood, Ga,, 3 0294 This notice is to inform you that your application for assista nce through HomeSafe Georgia has been withdrawn effective this date, based on the following reas on(s): • Failure to provide information as requested. Borrower requested withdrawal. Other: Customer failed to reply to Approval Letter sent on 8/7/2012. n1eSC ̀r Georgia is committed to providing timely service to all applicants and is therefore unable to hold .npietel uridelierminable application longer than 30 days. If you are interested in p ursuing assistance either now or in the future, you may contact HomeSafe Georgia via email at i•Iir,.hy, .::":1ric7-,2 . • • , Your will he entered into the queue line at the time of your request, and you mus t provide any required i ntorma.tion or documentation at that time. ci email by: Felix Hull Title: Underwriting Department ...... _ _ the HomeSafe Georgia loan program is designed to provide tem porary assistance in the form of mortgage payments on • • behalri of the unemployed or underemployed in an effort to prevent foreclosure of the home. Eligibility requirements •• •- -1 Frequently Asked Questions (F5.0) can be found at ,.'.-..",".k;;;Tmnz,ffte,),,=_60.(.(,ir, Ili, (-qua; Credit Opportunity Act prohibits creditors from discriminating against credit applicants on the busts of race, color, r.:!..gfor, national arigiP. sex, marital status, age (provided that the applicant has the capacity to enter into a binding contract); h,et:o:;sc ali or parr of :he applicant's income d erives from any public assistance program; or because the applicant has in good faith exercised any right under the Consumer Credit Protec tion Act. The federal agency that administers compliance with this low rco;cernina this creditor is the Federal Trade Commission„ 6th and Pennsylvania Avenue, N, W.. Washington, DC 20.580, Phone: 202- 526-2222 Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 18 of 27 EXHIBIT B Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 19 of 27 Welk, 04(700 1-lome hiertango 140H,,r 1033 9 tlf?N Moin,111 50306•0330: (nm 2/6•3212 I 1:1» ,,,,,, ,..,,, , s E E 1.-',,,, 1-,.., Al . ,1,11,i,,,,, 11111111M----- 107/2002. *I2 4136 11/1 3 17011 MiiiilhIL_ 71 . (1000e. A c n1 lio,,,,, A((r,,,,, 1)010 )0 001001 1:,11. 01 1(.1 11001 1)I (210) 1.101 /'.1011,n OH D.110003 E'dy 00000o070/ Pe(ce, /hie 1,2 02(ceted 10001111 PI,/ 0, , “0/ /,, Y2 l',.(o 0. 00500( 10 0,,11, ,,,,,, ,,,,,,,,,,,,,, lo., io(Ivi,y tYY (01 /1(001 ,.,/- 11,1 ,11,110010 0511(oE(0 Pay Dalo (",,,, 03/0712013 6122,747 617,120 07/2011 01141 0/201:1 2t,3tu, - over 120 Days per)t Duo; Type of Account - Moi ttlupei Type of Loon - rim Itriiitt Entatc, Mortgaget Whotte Account -• Indvidual Account: Afp DITKARL INFORMATION - Consumer Disputes This Account information: Fo reclosure 12rocoss Slarterl; 160 Pnys or Mixe Rist I)ue; Fixed Nato, Account Hiutory 02121;13 0020 13 1212012 /1(7//12 1012017 00/2012 00/2912 02/2012 090017 0920(2 00/2012 0242012 0202012 01110/2. 17/2011 11(7911 /0(70/ 1 09/2011 08125,1 46401/ 07/2011 ,,ith SiZiL113 Gotnin 6 6 ti 6 6 6 6 6 6 6 6 6 6 6 5 4 3 2 1 3 3 01/201 1 12/2010 11/2010 10(2010 00/2310 (21201/3 0.1/2010 012010 02) 21110 092010 0715.007 00il2009 00/7.009 04/21-99 12121/2,1 0212000 01120/6t 12/2(303 1112008 01/2202 02/200 0 3 3 3 2 1 1 li 6 6 6 G 6 5 4 3 2 1 1 1 1 1 °Wurm 1 ( Coptinued On Next Page ) Page 1/ 0/ 12 3001032996X02-001272330- 1- 1 - S Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 20 of 27 EXHIBIT C Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 21 of 27 FRONI: C:yrithia D. i'ercluni eli correspondence to: U. .nthia D. lerdum .5:100 King Arthur Lane LI lenwood. 30294 TO: Wells Fargo an aN.A. c/o Shapiro (Kt Swerttecer. L. LP :1872 Woodcock Boulevard Duke Building. Suite 100 Atlanta. Ga. 30341 kOt i 7 .1 i13 HAY PH I: Li cc: Tf eu-, Date: May 01, 2013 Ru: Security Deed: Book No. 13931 Pages 454-461, Recorded: December 2.9009 Alled5tcc1 Loan 4: 025482925:2 AFFIDAVIT OF NOTICE. OF REVOCATION OF POWER OF ATTORNEY I Cynthia D. Perduin a Living Being: pursuant to United States Constitution Article V & United States Constitution 14 1̀' Amendment: 0.C.G.A. § 10-6-141 and § 44-14-184, do HEREBY DEC[ARL'.: Boil. due to the discovery at various elements of fraud, fraudulent inducement, misrepresentation, or a ninterial fact and intentional nondisclosure resulting in the deprivation of my property Wells Fargo Fi:itn k, N.A. its nuns and/or assignees. Following an investigation into their Vat?OUS violations of Federa l jaw : 1(.1 sate laws (0.C.G.A b 23-2-52) of the purported Loan. Trust Agreement, and Security Deed records - I. Cynthia D. Perdum. do hereby refuse to knowingly accept, or otherwise participate in any part of fined and other illegal actions involving the purported Promissory :,k1teiSecuritv Deed/ Trut Instrument; and; further do hereby revoke, rescind, and terminate all Inv s i J‘ natures relating to any and all said deeds, notes; and agreements front their inception. I. cynthin D. Pordom, do hereby revoke, terminate, and rescind all Powers of Attorney, in-[act or otherwise. previously assigned by me. implied in law, by trust or otherwise, w i th or wi thout my consent andfor knowledge. as such pertains w any property. real or personal. 'promissory note. securitY deed and mortgage sicned on the date of November 22; 2002 or oiherwise, under Security Deed: Deed Book 13931 Pages 454-461 Recorded: December 2. 2002. involving the property .-)eci i eLtHx, addressed and identified as 5100 King Arthur Lane. Ellenwood. GA 30294 with a leg,, -11 descripti n as follows: i -HAT fRACT OF LAND LYING AND BEING IN LAND LOT 30 OF THE 15th DISTRICT, COUNTY. GEORGIA. BEING LOT 143, BLOCK A. CAMELOT, UNIT I AS PER PLAT RECORDED 1N PEAT BOOK 1 12. PAGES 83-90. DEKALB COUNTY RECORDS. v.% j ncH i INe-.:oRpoR,-1 TED HEREIN BY TILLS REFERENCE AND M/\DE A PART OF THIS DESCRIPTION, WHICH HAS "f1-1E ADDRESS OF 5100 KING ARTHUR LANE, ELLENWOOD, CA 30294. Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 22 of 27 Furthcrmore I. Cynthia IA Perduni do hereby appoint myself, Cynthia D. Perdunt. as Attorney-in- tact tyvcr ihe above real property. c\ 1111-) :1 d. Perdum by appellation do hereby swear and declare under penalty of perjury under the laws of the Gaited States or America that the foreQoina is true and correct. 11_IRA -;tate a I (..ieorcia County or DEKA L.B /j•, 111-)scribed anti ffis‘N-orn to (or a rmed) before me on this day of Cynthia D. Perdu at :')100 King Arthur banc Ellenwood. GA 30294 -)013, ey_e_o/ece, proved to me on the basis of satisfactory evidence to he t ic person( s) ho appeared before mt. !'O.)tary Seal. Notary Signature; NATHALIE NOTARY PUBLIC GwInnett County State of Geo My Comm, Expires Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 23 of 27 CERTIFICATE OF SERVICE This is to certiiy !hat I Cynthia D. Perduin have this day served on the following party of record with colt of the foregoing REVOCATION OF POWER OF ATTORNEY, ho depositinu in the United Slates Mail a copy of the sane in a properly addressed envelope with sufficient postace thereon to nsure del i very on InHiOWS: "ro: Welk Fargo Bank, A. C/0 Shapiro & Si atfeger, LEP 18- 2 Wr,odenek Roulcoard 1 00 'ahlnra, (•;• -.3. 3(t3-41 A l .1 fil t,/ nLids day of.t iih,t -2013 , / ) ,,. • ! 7 / 1 ....-, /,' ---,,- ,- h-,. 1c,triciai witnc,ss- ....)._ Signature Cynthia D. Perdum. Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 24 of 27 IN THE Fi PLR ICR COURT OF THE T,ATE OF GEORGIA C OUNTY OF DEKALB CYs.':. 'CHIA D. Plaintiff. s FARCiO BANK. F.R. Defendants CERTIFICATE OF SERVICE C nthIa C, Perdum certify that th c-i CIVIL NC).: s day of .Vlay. 01 served the forqoing Complaint Cur \vronortil Foreclosure. I)cclaratury Relief', Title Fraud. and Damages with the Clerk of the s;u1),:rior court upon the Defendant. through their Attorney on file by causiat a true and correct copy to he deposited the IN PS first class mail. proper postage affixed and addressed as follows: Shapiro L SwettIcTer. LLP 2 h72 \Voodcock Blvd. 3C)3Ll i \VL'IL Fargo Bank. N.A. Registered Agent: Corporation Tcchnoloit\ PtickwL'Iy. Suite 300 »:orc.:ro:;s. (1 a. .0(193.. Cynthia D. Perdum 1 00 King Arthur Lane Ellenwood. Georgia 30294 Case 1:17-cv-00972-SCJ-JCF Document 27-5 Filed 05/12/17 Page 25 of 27 IN FHE SUPERIOR COURT OF STATE OF GEORGIA COUNTY OF OF:KALB YNTI IE\ D. PERNJM T E.I.S 1 -1Rtlin BANK. LA, Defendants CIVIL, NO.; J VERIFICATION nthid U. Perclum. am the Plaintiff in the above-entitled action. I have rend the foreo-oing complaint for \\ rong1111 foreclosure, title fraud. intentional infliction of emotional distress. deelamtory relief_ and darnftEes. and know the contents thereof'. The same is true of my own k no\\ led ,,c. except as to those !natters which are therein alleged on information and belief, and as to liaise .atters. I hjievC it to he true. I declare under penalty of perjury that the roreQoing is mae and (orreet and that thin, declaration watt executed in Atlanta. Georv,ia. 12..ated: \ lay 201 C ynthia L), Percium _51(10 Kivu Ailbur Lane Ell nr:end, 0.t,oroin 3020-4 CI