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
__________________________________________________
REPLY 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.

TABLE OF CONTENTS
Table of Contents . I
Table of Authorities .. ii
Certificate of Interested Persons iii
Argument 1
Conclusion .. 12
Certificate of Service .. 14

TABLE OF AUTHORITIES
Bank of NY vs Ukpe, Page 8
Henderson vs MERS (Alabama Cir.Ct.) Page 11
L.D.F. Family Farm, Inc., vs Charterbank, 326 Ga.App. 361 (2014)Page 6
OTHER AUTHORITIES
OCGA 16-10-20 (1) Page 13
OCGA 16-10-20 (2) (c) Page 13
OCGA 24-14-1 Page 1
N.D. Local Rule 7.1 (A) (1) . Page 2

ARGUMENT
A. THE BURDEN OF PROOF
Lawyers Spend a Great Deal of Their Time Shoveling Smoke
Supreme Court Justice Oliver Wendell Holmes, Jr.
1902-1932
In this reply brief Harvin is not plowing fresh ground nor turning new soil.
Starting with the Pilgrims landing upon Plymouth Rockthe burden of
proof has been rooted in the tradition of American jurisprudence. Over and
over we hear the same porous argument from the major banks and their
attorneys:
The Assignment is a contract that cannot be challenged by a non-party.
Boilerplate language such as good value and consideration written on a
piece of paper do not amount to a contract. After reading the Appellees
briefs it is clear that contract argument is central to their position. Section
24-14-1 of the OCGA states verbatim that the 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.
There must be independent evidence in the form of (a) canceled checks, (b)
wire transfer receipts, (c) wire transfer instructions, and (d) a sworn affidavit
from a party with personal knowledge of the transaction. The burden of
proof is greater when a party seeks to take a familys home on the un-sworn

verbal assurance from a lawyer that a piece of paper is a contract. Note also
N.D.Local rule 7.1 A (1) requires a party to submit a sworn affidavit with
any motion that argues a fact such as stating that the Assignment is a
contract. NTC and Chase have not met the burden of proof needed to
support their contract argument.
B. THE SECURITY DEED
At the request of Chase, NTC and Ms.Lance drafted the Assignment and
delivered it by U.S.Mail to the Rockdale County Georgia Clerk of Court
with instructions to record the document. At page 5 of NTCs brief it
declares that Furthermore, NTC and Ms.Lance are not parties to the
Security Deed, do not claim any rights Based on this disclosure Harvin
asks the Court to strike any argument from NTCs brief that addresses the
Security Deed.
Harvin also asks the Court to strike any argument from Chase regarding the
Security Deed on the basis that Chase is a non-party to that contract between
Harvin and Southeast Mortgage Corporation aka SMC.

C. THE ASSIGNMENT IS FORGED AND FRAUDULENT

All signatures on the Assignment belong to employees of NTC (Appendix,
ASSIGN). NTC has a history of creating and recording forged, fraudulent
assignments. (Appendix 1, page 2).1
Affixing or submitting forged signatures on any document that transfers a
security interest is a felony in Georgia punishable by imprisonment, a fine,
or both. An amendment to Article 2 of Chapter 10 of title 16 of the OCGA
(HB 985) was signed into law by Governor Deal relating to:
1. False liens or encumbrances, including documents of title, instruments
relating to a security interest in title to real or personal propertyit is
unlawful for any person to know or have reason to know that such
document is false or contains a materially false, fictitious, or
fraudulent statement or representation, or;
2. Knowingly alter, conceal, cover up or create a document and file,
enter, or record it in a public record or court of this State or of the
United States knowing or having reason to know that such document
has been altered, or contains a materially false, fictitious, or fraudulent
statement or representation.

JP Morgan Chase Bank, N.A., also has a history of recording forged, fraudulent assignments, see
Appendix: Kalicki opinion.

Harvin will refer to the above-mentioned amendment to the OCGA as the

Georgia Homeowners Statute. (GHS). NTC, Ms.Lance, Chase, the persons
who signed the Assignment, and the attorneys are subject to imprisonment
upon a finding that the Assignment does not comply with the GHS.
Harvins complaint states that the Assignment is a fraudulent document.
(Appendix 1,3, and 42)
No representative from MERS endorsed or executed the Assignment nor did
anyone from Chase sign the document. Chase, NTC, and the attorneys are
active parties to the cover-up.
D. HARVIN HAS STANDING TO CHALLENGE
THE VALIDITY OF THE ASSIGNMENT
Harvin incorporates by reference the arguments set forth in his initial brief.2
Harvin directs the Courts attention to Appendix; DEED, page 2, which
states: BORROWER COVENANTSBorrower warrants and will defend
generally the title to the property against all claims and demands,
subject to any encumbrance of record.
This section of the Security Deed gives Harvin standing to defend title to his
property against all claims and demands, including a transfer of interest by a
forged assignment. The language is clear and in addition, there is no
provision in the Security Deed that prevents Harvin from contesting the
2

Harvin also has standing pursuant to the 5th amendment, the National Mortgage Settlement Agreement,
and other points mentioned in the Initial Brief.

validity of any transfer of interest regarding his property. The argument by

Chase and NTC that the Assignment is a contract that cannot be challenged
by a non-party is a backdoor effort to introduce inadmissible parol evidence
to add to, take from, or vary a written contract. (See page 10, NTC brief).3
Being non-parties to the Security Deed Chase and NTC have no standing to
interpret, challenge, add to, or take from the terms of that contract between
Harvin and SMC.
THE EMPEROR HAS NO CLOTHES
E. PUBLIC POLICY DEFEATS PRIVITY OF CONTRACT
The amendment to the Georgia Homeowners Statue is sound public policy
that dictates that any party who records a document that transfers a security
interest in real property owes a duty of care to a third party not in privity
with either party to the contract. Privity of contract is not required to
establish the existence of a duty to exercise ordinary care not to injure a third
party not in privity to the contract.
If the transfer of a security interest is illegal, fraudulent, and grounded in
forgery there is injury to the non-party to the contractHarvin submits that
the amendment to Art. 2 of Chapter 10 of Title 16 of the OCGA is public
policy that creates a duty upon Chase, MERS, and NTC to exercise care that
the Assignment complies with the requirements of the statue to prevent
3

L.D.F. Family Farms, Inc. vs Charterbank, 326 Ga.App.361, 756 SE 2d 593 (2014)

injury to third parties, i.e., the non-judical threat of taking real property
where there is no legal authority for such actionis a violation of the
FDCPA.
Moreover this act of public policy requires that when a party questions the
legality of an assignment federal and state courts must ascertain whether the
transfer of the security interest complies with the amended statue cited afore.
F. THE DEPOSITIONS OF ERIKA LANCE, R.K.ARNOLD
AND WILLIAM HULTMAN
The failure of Chase to address the admissibility and relevance of these
depositions infer that Chase concedes that the testimony is admissible in this
case. Also NTC has indicated in their brief that NTCs legal position in this
appeal is determined by whatever argument Chase presents in their brief.
Borrowing a word from Chase, it is absurd to argue that case law
determines that the Assignment is a contract, yet fail to address sworn
testimony to the contrary.
The Appellees have conceded that in light of the deposition testimony
remand must follow with instructions to strike any reference that the
Assignment is a contract from the motions to dismiss.

G. THE COURTS HAVE A DUTY TO PROTECT

THE HOMEOWNER FROM THE THIEF
In their brief Chase has cited a long list of bad case law where federal and
state courts have held that an assignment is a contract with no supporting
evidence. Under current case law the courts have given notice to the thief
that if [the thief] records an assignment and later asserts that it is a contract
that cannot be challenged by the homeowner; the courts will award the thief
a free house.
This is bad for all homeowners in our State. Looking at the deposition
testimony of MERS secretary/treasurer, William Hultman, I will show how
easy it is for the thief to steal a home in Georgia:
Q. When a certifying officer assigns a mortgage [security interest] does
MERS receive money?
A. No.
Q. Well does it have some value to MERS that MERS can sell it for?
A. If you mean can we sell the mortgage [security interest] and receive
consideration or money value, no.
Q. When a certifying officer assigns a mortgage [security interest] and
this is where MERS is the mortgagee of record, does the certifying
officer request permission of MERS before assigning the mortgage
[security interest] interest?
A. No. 4
4

Bank of New York vs Ukpe, case # F-10209-08, New Jersey Superior Court, Chancery Division,
deposition of William Hultman

In this case we know that NTC created, prepared, and recorded the
Assignmenton its face it appears that the transfer of the security interest
was done at the behest of MERSyet, according to William Hultmans
testimony NTC could easily draft the document and record it without MERS
knowing anything.
This is the reason why it is important to have discovery in these cases where
the bank argues that an assignment is a contractto protect the homeowner
from fraudulent, illegal, acquisition of real property.
In You vs. Chase, the Georgia Supreme Court expressed concern regarding
how easy it is for a family to lose their home under the guise of foreclosure.
In response to the Ga. Supreme Courts unease the Georgia Legislature
amended Art. 2 of Chapter 10 of Title 16 of the OCGAIt is now a felony
in Georgia to record a forged, fraudulent, assignment to transfer a security
interest in real or personal property. Bank officers, MERS officers,
document mills such as NTC, and the lawyers that represent them can now
go to prison for ten years if there is a violation and conviction.
The deposition testimony of Erika Lance, R.K.Arnold, and William
Hultman, and the amendment to the aforesaid OCGA have changed the
game in Georgialawyers can no longer argue that a piece of paper is a

contract without supporting evidenceattorneys now have skin in the game,

they can be incarcerated if they argue to cover-up a deception.
H. THE DEEP ISSUE IS WHETHER THE ASSIGNMENT
VIOLATES THE FDCPA AND WHETHER APPELLEES
ARE DEBT COLLECTORS
Harvin has stated in each of his complaints that he does not owe any money
to Chase and that any money, if any, provided to him by the originator,
Southeast Mortgage Corporation [SMC] is tainted with drug money received
from Wachovia Bankbecause this issue was not addressed by Chase or
NTC in their briefsHarvin submits that their failure to address these issues
amounts to concession.
1. When did the loan go into default?
Harvin owes no money to Chase, yet Chase argues that they cannot be debt
collectors as long as the loan was not in default when the security interest
was assigned. Chase does not mention in their brief the exact date that the
alleged loan went into defaultThe FDCPA is clear if a party acquires a
loan after it is in default, said party is a debt collector.

2.The role of MERS

As a nominee/agent MERS cannot sell or transfer the security interest

without permission from the principal.5 Consider this analogy; a real estate
agent acts as nominee for the homeowner. The real estate agent cannot
accept an offer to purchase the home without the approval of the homeowner
nor can the real estate agent sell the home without approval from the
homeowner.
With this analogy in mind why is the Assignment silent regarding the
identity of the principal that gave MERS permission to transfer the
principals interest to Chase? Also why did no one from Chase sign the
Assignment to indicate acceptance, a crucial element of contract law?

William Hultman deposition, case # 2008-900805, Henderson vs MERS Montgomery County Alabama
Circuit Court

CONCLUSION
Harvins position is that the Assignment is not a contract because
R.K.Arnold, William Hultman, and Appellee Erika Lance have said so in
deposition testimony given under oath and penalty of perjury.
The Security Deed, a contract that both Chase and NTC are non-parties to
states that Harvin has power & authority to defend title to his property
against any claim or demandsuch as a fraudulent claim that the security
interest was transferred. Harvins authority is not barred by any perceived
privity of contract between Chase and MERS.

The lower courts failure to grant limited discovery on the basis of the
aforementioned deposition testimony is an abuse of discretion and is clear
error. Moreover the Appellees history of recording forged, fraudulent
assignments is further basis for allowing discovery.
A comparison of the notarys signature on the Oath of Office and the
Assignment (See Appendix) reveals that the same person did not make these
signaturesThe Illinois Attorney General in the civil suit against NTC
recognized that certain assignments allegedly signed by Notary Tommie
Nelson were forgedMr. Nelson allegedly signed the Assignment in
question in this case.

Finally the Georgia Legislature wholly removed the defense of privity of

contract in cases where a security interest has been transferred and the
document [Assignment] is a matter of public recordSee the OCGA 16-1020 (1) Under this statue the question of whether a homeowner is a nonparty to the assignment contract has been removed from the scrutiny of
state and federal courts and privity of contract is not a defense for violating
OCGA 16-10-20 (2)(c).
The deep issue therefore is whether the Appellees have knowingly created
and recorded a assignment in the public record knowing or having reason to
know that the assignment contains a materially false, fictitious, or fraudulent
statement or representation in violation of the aforesaid OCGA.
Section 2 of said statue states All laws and parts of laws in conflict with
this Act are repealed. This applies to privity of contract defense.

For the reasons stated herein Harvin urges this Court to remand this case
with instructions that discovery proceed. Harvin further suggests the Court
to declare that in the 11th Circuit in cases where a party argues that an
assignment is a contract such party must bear the burden of proof and
discovery must go forward.

Respectfully Submitted,
_____________________
ALEXANDER HARVIN
In Pro Se
P.O.Box 82665
Conyers, Ga. 30013
(770) 841-0784

CERTIFICATE OF SERVICE
Alexander Harvin hereby certifies that a true and correct copy of Appellants
Reply Brief was delivered by Priority U.S.Mail 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
On this 28th day of July 2015.

___________________________
ALEXANDER HARVIN
In Pro Se