IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

CASE # 15-11262-A
ALEXANDER HARVIN,
APPELLANT

VS.
NATIONWIDE TITLE CLEARING, INC. ET.AL
APPELLEES
___________________________________________________
ON APPEAL FROM THE U.S.DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
DISTRICT COURT CASE # 1:14-cv-2130-MHC-JFK
ATLANTA DIVISION
__________________________________________________
BRIEF OF APPELLANT
__________________________________________________

Prepared By:
Alexander Harvin
Pro Se
P.O.Box 82665
Conyers, Ga. 30013
(770) 841-0784

CERTIFICATE OF INTERESTED PERSONS

Alexander Harvin

Pro Se Appellant

Hon. Mark H.Cohen

U.S. District Judge

Hon. Janet F. King

U.S. Magistrate

Jeremy B. Ross

Appellee Counsel

Dustin S. Sharpes

Appellee Counsel

Wargo French LLP

Law Firm

Georgia Homeowners and the General Public at large.

STATEMENT REGARDING ORAL ARGUMENT

This is an appeal of the district courts grant of a FRCP 12(b)(6) motion to
dismiss Alexander Harvins lawsuit which was filed against the Appellees
for violations of the Fair Debt Collection Procedure Act (hereinafter
FDCPA). Specifically the Complaint alleges that the Appellee JP Morgan
Chase Bank, N.A., (hereinafter Chase) acting thru Appellee Nationwide Title
Clearing, [NTC] created and recorded an Assignment in the public record of
Rockdale County, Georgia, that was a false, deceptive and/or misleading
representation in that it implies that Chase is the creditor with respect to
an alleged mortgage debt that Chase is attempting to collect and/ or to
foreclose on Harvins property. Harvins Complaint asserted that
misrepresenting the identity of the creditor in the Assignment constitutes a
false, deceptive, and/or misleading representation that is prohibited by
Section 1692(e) of the FDCPA.
Harvins Complaint also asserts that Harvin does not owe any money to
Chase. Harvin requests that the Court hear oral argument in this case
because it involves important, unresolved questions in this circuit regarding:
(1) whether a defendant who verbally argues that an Assignment is a
contract has the burden of providing the court with actual proof of the
underlying transaction, i.e. canceled checks, wire transfer receipts, or sworn

affidavit from a party with personal knowledge, (2) whether the district court
abused its discretion in denying limited discovery, (3) whether homeowners
are beneficiaries of the agreement between the major banks, the federal
government, and the State of Georgia that bars the creation and recordation
of fraudulent documents for the purpose of pursuing foreclosure, (4) whether
the 5th amendment to the U.S. Constitution which provides that citizens
cannot lose life, liberty, or property without due process, allows a
homeowner to challenge an Assignment, (5) whether a party who acquires a
debt via assignment after the alleged debt is in default has authority to
foreclose.
This Court has not decided these issues expressly in any published opinion,
and oral argument will materially aid the Court in resolution of these
important issues on appeal of this lawsuit, which seeks to police debt
collectors into compliance with the FDCPA. The FDCPA is a consumer
protection statue that requires debt collectors to strictly comply with the
provisions of the Act. This appeal asks the Court to hold that the FDCPA
requires that debt collectors not misrepresent to the debtor who the creditor
is with respect to the debt sought to be collected and that when they do
misrepresent the identity of the true creditor or falsely assert that they are the

creditor, such false, deceptive or misleading representation constitutes a per

se violation of the FDCPA.

Appearing Pro Se Harvin cannot orally present his case to the Court,
therefore Harvin requests that counsel be appointed to orally argue these
important issues. Oral argument will certainly assist the Court in rendering a
correct decision on these important issues that will directly affect how the
district court resolves whether an assignment is actually a contract and
whether limited discovery should be allowed when a party asserts that an
assignment is a contract.

JURISDICTIONAL STATEMENT
This case arises under the Fair Debt Collections Procedure Act (FDCPA), 15
1601 note, 1692-1692p. The U.S.District Court for the Northern District of
Georgia, Atlanta Division, possessed jurisdiction pursuant to 15 U.S.C.
1692 (d) and 28 U.S.C. 1331 and 1337. On January 28, 2015, the district
court entered an Order granting Appellees motion to dismiss, and judgment
was entered on that date. [Doc.57]. FRCP rule 52 (b) motion denied on
March 9, 2015. [Doc.61] Harvin filed a timely Notice of Appeal on March
30, 2015. This Court possesses jurisdiction pursuant to 28 U.S.C. 1291
and 1294 (1).

STATEMENT OF ISSUES PRESENTED

In 2003 Harvin sought a mortgage loan from Southtrust Mortgage
Corporation. Unknown to Harvin at that time the mortgage was financed
with proceeds from Wachovia Bank, N.A. (Hereafter Wachovia). Also
unknown to Harvin was Wachovias involvement in a money-laundering
scheme that implicated Mexican drug cartels. The U.S.Attorney for the
Southern District of Florida indicted Wachovia based on evidence of money
laundering. Subsequently Wachovia pled guilty.1
1

The Court may take judicial notice of the conviction because it is a public record and is central to
Appellants Complaint. Day vs. Taylor, 400 F.3d 1272, (11th Cir. 2005); Bryant vs. Avado Brands, Inc., 187
F3d 1271 (11th Cir. 1999)

This table-funded loan was funded by Wachovia and guaranteed by Ginnie

Mae. Chase became the servicer thereafter. Following the demise of
Wachovia the true owners/investors of the securitized loan were paid via
insurance claims, etc. Chase continued to send mortgage statements to
Harvin, who suspected nothing. In 2011 Wells Fargo Bank as successor to
Southtrust Mortgage Corporation [SMC] declared in a state-court
proceeding that Wells Fargo had no interest in the property or loan. Also in
2011 the loan went into default. In 2013 Chase declared that it was the
owner/investor of the loan and hired NTC to create and record in the public
records of Rockdale County Georgia an Assignment that supposedly
transferred a secured interest in the security deed to Chase.
Harvin thereafter filed an FDCPA complaint on the basis that the assignment
was a fraudulent, forged document recorded for the specific intent of falsely
presenting Chase as Harvins creditor. In response Appellees filed a motion
to dismiss the complaint due to failure to state a claim upon which relief
could be granted; Appellees also asked the District Court to stay discovery
pending resolution of the motion to dismiss. Discovery was stayed.
Within the motion to dismiss Appellees argued as fact that the Assignment
was a contract between MERS and Chase that could not be challenged by
Harvin. Acting pursuant to local rule 7.1 (A)(1) of the District Court, Harvin

filed a Motion For Limited Discovery arguing that the local rule requires
that when a party relies upon facts in support of any motion, such party
must provide an affidavit in support of said motion.
The Magistrate submitted a Non-Final Report & Recommendation adopting
Appellees position that the assignment was a contract that could not be
challenged by Harvin, (a) the magistrate stated that she could not decide
whether the mortgage was funded with drug proceeds from the money
laundering activity of Wachovia, because Wachovia was not a party to the
lawsuit, (b) The Magistrate held that Chase could foreclose on Appellants
property by way of the assignment from MERS. [Doc. 40]
Harvin submitted a motion for joinder of parties seeking to add Wachovia as
a defendant due to the magistrates position in the R & R.; timely objections
to the R & R were also filed.
The District Court denied all pending motions [Doc.57] submitted by Harvin
and adopted the R & R on the basis that the assignment was a contract that
could not be challenged by Harvin. The District Court also held that Chase
could seek foreclosure. Harvin files this appeal of the district courts
findings. This appeal raises the following issues:

1. Pursuant to paragraph 18, the Foreclosure Procedure Clause of the

Security Deed the original parties, Harvin and SMC agreed that in the
8

event of foreclosure the Lender [SMC] would exercise power of sale.

This paragraph does not convey power of sale to an assignee,
successor, or heir, to the Security Deed.
Chase as an assignee, successor, and heir, seeks to exercise power of
sale under the specific terms of paragraph 18 Is this a violation of
section 1692f of the FDCPA that bars the threat to take any action that
cannot legally be taken?
2. The Security Deed has a MERS Clause that allows assignees,
successors, and heirs to exercise power of sale. The MERS clause
does not define when an assignee, successors, or heir may the exercise
power of sale. Is the MERS clause contrary to paragraph 18, the
Security Deed?
3. Appellees filed a rule 12 (b)(6) motion arguing that the complaint
failed to state a claim for which relief can be granted. An affirmative
defense was presented as fact within the motionthe Assignment is a
contract that cannot be challenged by a non-party to the contract
District Court local rule 7.1 (A)(1) makes it mandatory for an affidavit
to be provided when a party relies upon facts in support of any
motion. Appellees presented no evidence such as wire transfer
receipts/instructions, canceled checks, or an affidavit from someone
with personal knowledge, to support their factual argument that the
assignment is a contract.
Did the Appellees meet their burden of proof?
4. Harvin filed a Motion for Limited Discovery on the issue of whether
the assignment is a contract. Thereafter Harvin sought to admit as
evidence the deposition testimony of former MERS CEO, R.K.
Arnold, MERS secretary William Hultman, and Appellee Erika Lance,
as proof that the assignment is not a contract. The district court denied
the motion for limited discovery and never ruled on or considered the
content of the deposition testimony.
Was this an abuse of discretion and clear error?

STATEMENT OF THE CASE

a. Course of Proceedings and Disposition Below.
Harvins complaints alleged these important facts (a) Harvin did not owe any
money to Chase, (b) Chase submitted a statement by mail to Harvin alleging
that a debt was owed and Chase was seeking to collect said debt, (c) the
assignment was a forged, fraudulent document created by NTC and recorded
to present the illusion that Chase was a creditor.
Appellees filed a motion to dismiss on the basis that the complaints failed to
state a cause of action as a matter of law under the FDCPA. Appellees also
argued as fact that the assignment was a contract without presenting any
evidence to support this hearsay statement. [Doc. 7, 13]
Harvin submitted written objections to the hearsay statement that alleged the
assignment was a contract. Harvin also sought limited discovery, admission
of deposition testimony of MERS secretary William Hultman, former MERS
CEO R.K.Arnold, and Appellee Erika Lance, as proof that the assignment
was not a contract. The central theme of Appellees FRCP 12(b)(6) motion to
dismiss was that (a) the legality of the assignment could not be challenged
because it was a contract to which Harvin was not a party to and (b)
Appellees could foreclose by way of the assignment from MERS.
In the Northern District it has become routine for the court to hold that an
assignment is a contract, without requiring attorneys to provide proof that
10

this document is actually a contractthis practice results in awarding a free

house to the banks. Harvin also filed a Fed.R.Civ P. rule 52(b) motion that
was denied by the District Court.
The District Court found in favor of the Appellees and elected not to
consider any argument or evidence presented by the Pro Se litigantHarvin.

b. Statement of Facts.
Appellee NTC is a document mill that creates documents for banks in the
mortgage industry. The Illinois Attorney General found that NTC was
creating and filing fraudulent assignments in the public records of Illinois.
The Illinois AG filed suit against NTC and subsequently NTC paid $
300,000 to settle.2
In California, a court of appeals mentioned in its opinion that a lower court
found that Chase intentionally recorded a fraudulent assignment that
allegedly transferred property to Chase.3

2
3

Case # 12 CH 03602, Cir,Ct., Cook County Illinois

Kalicki vs. Chase

11

Upon this background the District Court held that Harvin had no standing to
challenge the assignment based on the attorneys verbal depiction of the
assignment as a contract. The District Court went further and held that based
on the terms of the assignment and security deed, Chase could foreclose.
The terms of the Security Deed has two important clauses; (1) the MERS
clause allows successors and assignees of MERS to exercise power of sale,
(2) paragraph 18, titled: Foreclosure Procedure explains the procedure
necessary to foreclose. Specifically this section of the security deed holds
that only the Lender can foreclose via power of sale.
Georgia law, OCGA 23-2-114 declares, powers of sale in deeds of trust,
mortgages, and other instruments shall be strictly construedunless the
instrument creating the power specifically provides to the contrary.

Paragraph 18 of the Security Deed is indeed contrary to the MERS clause of

the Security Deed Chase as a successor, assignee, cannot exercise power
of sale.

12

Standard of Review
This Court reviews de novo a district courts grant of a motion to dismiss
pursuant to Fed.R.Civ.P. 12 (b)(6), accepting the allegations in the complaint
including mixed questions of law and factas true and construing them
in the light most favorable to the plaintiff.4
The interpretation of a statue is a purely legal matter and therefore subject to
de novo review. 4

SUMMARY OF THE ARGUMENT

The district court granted Appellees FRCP 12(b)(6) motion to dismiss based
upon a finding that the complaints failed to state a cause of action under the
Fair Debt Collection Procedure Act because the assignment was a contract
that could not be challenged by Harvin. The basis for the district courts
findings are found in its Order [Doc.57]
At page 4 of its order the district court found that the motions present
purely legal issuesthis was an incorrect conclusion because the 12(b)(6)
motions also argued as fact that the assignment was a contract, therefore the
motions were a mixture of law and unsupported facts.

Belanger vs. Salvation Army, 556 F.3d 1153, 1155, (11th Cir.2009); Macharia vs. United States, 334 F.3d
61,64,67 (D.C.Cir. 2003); Browning vs. Clinton, 292 F.3d 235, 242 (D.C.Cir. 2002)
4

13

The district court assumed that because the assignment contained boilerplate
language common to contractsgood value, and considerationthe
assignment must be a contract. [Doc. 57 at page 6]
Harvin shows below that the district courts decision amounts to reversible
error because there is no evidence of consideration in the record. Section 2414-1 of the Official Code of Georgia states verbatim: Burden of proof lies
upon the party who is asserting or affirming a fact and to the existence
of whose case or defense the proof of such fact is essential.
It is clear that having argued to the district court that the assignment was a
contract Appellees had the burden of proof to establish with clear and
convincing evidence that the document was in fact a contract. Understanding
the burden of proof Harvin filed a motion for limited discovery [Doc 17]
invoking northern district court local rule 7.1 (A) (1), which governs
motions and states that if a motion argues fact the party is required to submit
an affidavit in support of the factual assertion. The district court erroneously
assumed that Harvin was confusing the 12 (b)(6) motion with a summary
judgment motion. [Doc 57]
There is a long line of cases that stand for the proposition that an assignment
is a contractHarvin submits that in each of those cases the record is void
of any evidence to support those assumptions. [Doc 59, 60]

14

Harvin by motion sought to admit deposition testimony of former MERS

CEO R.K.Arnold, MERS secretary William Hultman, and Appellee
Erika Lance as proof that the assignment was not a contract. [Doc. 39]
The district court denied the motion and did not consider the content of these
depositions. Erika Lance stated in her deposition:

They record Assignments to put on the record who is the current

beneficiary for that note and loan that mortgage. Thethe Assignment
itself is not the, to my understanding the actual sale of the loan. Does
that make sense?
Clearly Ms.Lance, the person who created the subject assignment in this
case does not consider the assignment a contract.
The assignment implies that MERS sold the security deed to Chase for
considerationMERS secretary William Hultman states in his deposition:
If you mean can we sell the mortgage and receive consideration or
monetary value, no.
When asked if MERS receives any money when a certifying officer assigns
a mortgage Mr.Hultman replied: No.
Mr.Hultmans deposition leaves no doubt that the district courts decision
that the assignment is a contract is reversible error.

15

ARGUMENT
1. BRIEF OVERVIEW OF THE FDCPA
Determining that there is abundant evidence of the use of abusive,
deceptive, and unfair debt collection practices by many debt collectors.
Congress passed the FDCPA to eliminate those practices. 15 U.S.C.
1692(a). The FDCPA protects consumers who have been subjected to
abusive, deceptive, or unfair debt collection practices by a debt collector in
an attempt to collect a debt.5
The FDCPA is a consumer protection statue that governs the activities of
debt collectors. The FDCPA requires that debt collectors such as Chase
refrain from false representationsforged and fraudulent documents to
enable an illegal taking of property.

See, Piper vs. Portnoff, 396 F.3d 227, 232 (3rd Cir.2005)

16

For purposes of resolving count two of the complaint the magistrate held
that the court will assume that at least one defendant was a debt collector
and engaged in debt collection activity. [Doc.40]. The inclusion of
attorneys as debt collectors was done by way of amendment to the FDCPA.6
FDCPA coverage applies three central substantive provisions that prohibit,
without limitation, all abusive, false and unfair practices, 15 U.S.C. 1692d,
1692e, and 1692f. Each section contains in identical format certain general
prohibitions and each section also provides a list of per se violations. This
means that each section lists examples of prohibited conduct, which does not
limit the general prohibitions against abusive, false, and unfair means.7
Section 1692e provides a non-exhaustive list of prohibited conduct. As to the
prescriptions against false representations any representation which is
objectively false constitutes a per se violation of section 1692e.8 Even if not
objectively false, any statement, which is capable of deceiving or
misleading, violates section 1692e.9

Heintz vs. Jenkins, 514 U.S. 291 (1995)

United States vs. National Financial Services, 98 F.3d 131, (4th Cir. 1996)
Bentley vs. Great Lakes Collection Bureau, 6 F.3d 60 (2nd Cir.1993)
8
Creighton vs. Emporia Credit Service, Inc., 981 F.Supp. 411 (E.D.Va. 1997)
9
Jeter vs. Credit Bureau, Inc. 760 F.2d 1168 (11th Cir.1985)
7

17

2. The District Court erred in finding that the complaint does not
state a claim for relief under the FDCPA
The District Court adopted the Magistrates finding that there has been no
violation of FDCPA 15 U.S.C. 1692e and 1692f.
Paragraph 18 of the Security Deed
We begin by acknowledging that on the first page of the security deed the
Lender is identified as Southtrust Mortgage Corporation. [SMC]. Moving
forward to paragraph 18 Harvin and SMC agreed that in the event of loan
default the Lender [SMC] would exercise power of sale to foreclose on the
property. This section of the contract is specific and was agreed to by the
original partiesunder this section of the security deed a successor,
assignee, or heir has no power to foreclose or exercise power of sale.
Consequently Chase does not have legal authority to foreclose or exercise
power of sale.
Section 1692f provides that taking or threatening to take any nonjudicial
action to effect dispossession or disablement of property is an unfair or
unconscionable means of collecting a debt if there is no present right to
possession of the property. Giving too broad an interpretation of You vs.,
Chase, 293 Ga.at 69, 743 S.E.2d at 430, the district court failed to
acknowledge that in You, supra, the Georgia Supreme Court held that the

18

holder of the security deed may foreclose according to the terms of the
deed. Chase holds an unenforceable security interest because the specific
terms of the contract [the Foreclosure Procedure Clause] does not allow an
assignee, successor, or heir to foreclose.
To support this position Harvin submits that an issue of contract construction
is a question of law for the district court to decide. The first step is to look to
the four corners of the instrument to determine the meaning of the agreement
the cardinal rule is to ascertain the intent of the partiesthe question of
intent is an issue of fact for the jury.10
Harvin concedes that the Security Deed has ambiguities; the issue of who
may exercise power of sale can be construed two ways. Harvin did not
prepare or draft the security deed. This Court has recognized and upheld a
decision against a party that drafted a contract:
In Auto Owners Insurance Company, et.al; vs. Southwest Nut Company,
et.al; [11th Cir. Case # 13-11672], George Martin Family Investment owned a
storage warehouse in Georgia and insured the warehouse under a policy
issued by Auto Owners. Southwest Nut held an insurance policy issued by
Travelers that provided coverage for newly acquired property. Southwest
Nut leased a portion of Martins warehouse to store pecans.

10

Karlan Inc., vs. King 202 Ga.App. 713, 415 SE 2d 319 (1992)

19

A fire destroyed portions of the warehouse and Southwest Nuts stored

inventory. Subsequently Auto-Owners and Martin filed suit against
Southwest Nut and Travelers to recover damages for loss caused by the fire.
Summary judgment was granted in favor of Southwest Nut and Travelers.
On appeal to this Court the parties argued there was ambiguity within the
leasethis Court held that any ambiguity would be resolved against
Martin, the drafter of the lease. See OCGA 13-2-2.

As mentioned afore Harvin did not draft the security deed, the MERS clause
and paragraph 18, of the security deed presents ambiguitythat should be
resolved in favor of Harvin.
The district court erred in concluding that Chase holds an enforceable
security interest, i.e., You, supra.

20

3. The MERS clause is contrary to Paragraph 18, the Foreclosure

Procedure clause
OCGA 23-2-114. Declares that the power of sale must be strictly
construed. The statue goes on to say that if the instrument creating the power
of sale [Security Deed] specifically provides to the contrary, a successor,
heir, assignee, or grantee [cannot] exercise any power contained therein.
The operative words here are Unless the instrument creating the power
specifically provides to the contrary.
The statue speaks for itself and as stated above any ambiguity must be
resolved in favor of Harvin.

4. The Appellees have not met the burden of proof

Appellees filed a FRCP rule 12 (b)(6) motion to dismiss the case for failure
to state a claim under the FDCPA and also presented within the motion a
factual argument that the Assignment is a contract.
Repeatedly Harvin asserted to the district court that the assignment was not a
contract because of the Appellees failure to submit proof of the underlying
transaction, i.e., proof that Chase paid consideration to MERS. Harvin filed
a FRCP rule 52 (b) [Doc.59] asking the district court to ascertain whether the
burden of proof was met regarding the unsupported argument that the

21

assignment is a contract. Harvins memorandum of law in support of his rule

52 (b) motion [Doc.60] presented this argument to the district court:
Section 24-14-1 of the OCGA states verbatim Burden of proof lies upon
party who is asserting or affirming a fact and to the existence of whose
case or defense the proof of such fact is essential.
There is no gray area regarding Georgia law on the subject of the burden of
proof. Words alone do not make a contract nor does an attorneys verbal
reference to a piece of paper establish that piece of paper as a contract. It is
obvious based on the district court and magistrates position that this factual
defense is essential to the Appellees case.
To uphold the lower courts ruling that the assignment is a contract the
record must contain clear and convincing evidence that supports the
argument.
Chase and NTC did not proffer an affidavit from someone with personal
knowledge of the transaction, a canceled check, or wire transfer
instructions/receipt to the district court. Such evidence is necessary to prove
that considerationa crucial element of any contractwas given to MERS.

22

There are cases that have been referenced as case law that accordingly is
dispositive law on the subject of whether an assignment is a contract.
Harvin by way of PACER has perused many of these cases and has found
nothing in the records of these cases to validate this unsupported
assumption.
Each of those cases reflects that an attorney referred to a piece of paper as a
contractthe district agreed without demanding proofthe attorneys client
normally a bank, received a free house.
MERS is a computer, a repository where players in the mortgage industry
upload information regarding loans.11 MERS is akin to YouTube or
Facebook, computers, repositories where the general public can upload
informationa computer does not have the mental capacity to enter into
contractual agreements.
The district court erred in concluding that the assignment is a contract
without requiring Chase and NTC to provide proof of purchase and
consideration.

11

The letters MERS stand for Mortgage Electronic Registration System. MERS is owned by MERSCORP.

23

5. The denial of Harvins Motion for Limited Discovery and refusal

to consider the depositions of R.K.Arnold, William Hultman, and
Erika Lance is an abuse of discretion and clear error
Responding to the Appellees argument that the assignment is a contract
Harvin filed his Motion for Limited Discovery [Doc.10 and 17] invoking
district court local rule 7.1 (A)(1). The motion was denied. Thereafter
Harvin sought to admit the deposition testimony of former MERS CEO
R.K.Arnold, MERS secretary William Hultman, and NTC employee Erika
Lance. These depositions were given in other cases and are admissible under
FRCP 32 (a) (C) and Fed.R.Evidence 804 (b)(1)(A).
Erika Lance
Erika Lance's definition of an assignment as she gave her deposition
under oath in Bayview Loan Services vs. Corey, case # 16-2009CA-016234MA, 4th Judicial Circuit Court, Duval County Florida:
PAGE20
Q. "And is it your understanding that that's generally how notes are
transferred through Assignments"?
A. "I'm trying to figure out how to answer this question. It is my
understanding that notes are transferred through a sale agreement between
mortgage entities. They record Assignments to put on the record who the

24

current beneficiary is for that note and loan that mortgage. The-the
Assignment itself is not the, to my understanding the actual sale of the loan.
Does that make sense?
William Hultman
In Bank of New York vs. Ukpe, case # F-10209-08, Superior Court New
Jersey, William Hultman, MERS corporate officer testified as a fact witness
under oath:
Page 122
Q. "I understand its part of your process, but let's take this case, for
example, a promissory note was executed on July 29,2005 in the amount of
$224,000, and a mortgage giving a security interest to MERS as nominee for
an identified lender was recorded with the county clerk's office. What is the
value of that mortgage to MERS when it is recorded?

A. " I don't understand what you mean by value".

Q. "Well, does it have some value to MERS that MERS can sell it for"?
Page 123
A. "If you mean can we sell the mortgage and receive consideration or
monetary value, no".

25

Q. " When a certifying officer assigns a mortgage, does MERS receive any
money"?
A. "No".
The Assignment implies that MERS received good value and
consideration from Chase. According to Mr.Hultman MERS never receives
consideration under any circumstance. Ms. Lance, the person who created
the subject assignment in this case does not refer to the document she
created as a contract.
Lets take a brief look at what the assignment implies. It declares that MERS
is acting in its capacity as nominee/agent for SMC, a principal that has not
existed since 2004. The magistrate traced the chain of title from SMC to
Wells Fargo Bank. The record shows that in 2011 in Rockdale County
Superior Court Wells Fargo affirmed that it did not have an interest in
Harvins property. [Doc.1] MERS as nominee/agent cannot act without
instruction from a principalthe record does not name the principal that
gave MERS permission to sell the security interest to Chase.
In the MERS model there apparently is no need for a written assignment
anytime ownership of the debt changes handsunless the debt is going to be
foreclosed by someone other than the originating Lender [SMC] or removed
from the MERS system. An unavoidable side effect of this is that [SMC]

26

remains the mortgagee of record at the Rockdale County Land Office, albeit
with MERS acting on its behalf. In other words the clear implication is that
[SMCs] status as mortgagee at the local land office somehow survives the
multiple transfers of the debt that take place during securitization. The
MERS model is designed in its own way to tie ownership of the mortgage to
ownership of the notewhich means that when SMC sold the note to
Wachovia/Wells Fargo Bank, N.A., it no longer has a secured interest in the
mortgage or note and its [SMC] continued status as mortgagee in the public
land records is at best a negligent misrepresentation and at worst an act of
fraud.
According to the Magistrate the originator, SMC was succeeded by
Wachovia, who was succeeded by Wells Fargo Bank, N.A., such being the
case why is there no written endorsement from representatives of Wells
Fargo assigning the security deed to Chase? Looking at the four corners of
the Assignment it is implied that MERS acting as nominee for SMC
assigned the security deed to Chasewhich is confusing because SMC has
not existed as an entity since 2004 and thus has nothing to assign
consequently a direct assignment from SMC to Chase is also at best a
negligent misrepresentation or at worst an act of fraud.

27

HARVIN IS A THIRD PARTY BENEFICIARY

OF THE NATIONAL MORTGAGE SETTLEMENT OF 2012
In April 2012, the major servicers of mortgages in Georgia, such as Bank of
America, Wells Fargo, Citimortgage, and JP Morgan Chase, among others,
agreed to the National Mortgage Settlement [NMS]. This settlement
imposed on them the obligation to prove they had the power to foreclose.

Servicer shall implement processes to ensure the Servicer or the foreclosing

entity has a documented enforceable interest in the promissory note and
mortgage (or security deed)or is otherwise a proper party to the
foreclosure action.
Consent judgment and consent settlement in United States vs. Bank of
America Corp., case # 12-CV-00361 (D.D.C. April 4, 2012) Settlement Term
Sheet, Section I.C. (1). Compelling the burden of proof merely is another
way of enforcing these settlement terms. Reference to a piece of paper as a
contract does not establish the burden of proof necessary to prove standing
to dispossess Harvin of his property.

28

THE 5TH AMENDMENT TO THE U.S.CONSTITUTION

GIVES HARVIN STANDING TO CHALLENGE THE
ILLEGAL TRANSFER OF INTEREST FROM MERS
TO JP MORGAN CHASE BANK, N.A.
The 5th amendment to the U.S.Constitution is specific and direct. It states
that no citizen shall be deprived of Life, Liberty, or Property without due
process.
If a party claims that a contract gives them standing to non-judicially take
property due process mandates that Harvin has standing to require that the
burden of proof be met.
The U.S.Constitution is clear; my property cannot be taken without
affording Harvin basic due process.

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CONCLUSION
Alexander Harvin has never signed a contract with JP Morgan Chase nor has
he received a loan from ChaseHarvin owes no money to Chase. The
Illinois Attorney General charged that Nationwide Title Clearing [NTC]
infected Illinois public land records with forged, fraudulent assignments
NTC wisely settled that issue.
In reviewing Chases appeal of an attorney fee award a California Appellate
Court took notice that the lower court found that Chase knowingly filed and
recorded a forged, fraudulent assignment attempting to take property via
foreclosure. Erika Lance created the assignment that is subject to this appeal;
her deposition testimony, given under oath, describes an assignment as a
notice to the world at large that a sale has taken place. The attorneys call
Ms.Lances creation a contract.
William Hultman, a high-ranking corporate officer of MERS has testified
under oath that MERS never receives value or consideration when the
security interest is transferred. Who do we believe? The person giving
testimony under oath that is subject to penalty for perjury or the attorneys
who have not given testimony under oath.
Harvin asked the district court to allow limited discovery regarding the
assignment and to consider the relevant deposition testimony of William

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Hultman, R.K.Arnold, and Ms.Erika Lancethe lower court rebuffed

Harvins plea for justice. The attorneys argue that MERS received good
value and consideration from Chaseif this is true showing proof of the
movement of money in consideration for the purchase of a loan/security
interest should not be difficult for the Appelleesperhaps the entire scheme
is a fraudulent scheme using the judicial system to legitimize theft of
property by deceptiona felony under Georgia law punishable by
imprisonment.
The taking of a familys home is a serious matter that cannot rest on an
attorneys imaginative unsupported argument that a sheet of paper is an
impenetrable contractin the interest of justice this case must be remanded
with instructions that discovery be allowed.
Respectfully Submitted,
_______________________
ALEXANDER HARVIN
In Pro Se
P.O.Box 82665
Conyers, Ga. 30013
(770) 841-0784

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CERTIFICATE OF SERVICE
A TRUE AND CORRECT copy of Harvins Initial Brief was delivered by
electronic mail on this 30th day of April 2015 to:

Dustin S.Sharpes
999 Peachtree Street, N.E.
26th Floor
Atlanta, Ga. 30309
Mr. Jeremy B.Ross
Counsel for Defendants NTC and Erica Lance
40 Technology Parkway South
Suite 300
Norcross, Ga. 30092

________________________
ALEXANDER HARVIN
In Pro Se

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