IN THE SUPERIOR COURT OF ROCKDALE COUNTY

STATE OF GEORGIA

ALEXANDER HARVIN,
Plaintiff

vs.
SOUTHTRUST MORTGAGE CORP.,
MORRIS & SCHNEIDER, P.C.
REPUBLIC TITLE INSURANCE,
J.P. MORGAN CHASE,
Defendants
__________________________________/

COMPLAINT

Alexander Harvin aka Al Harvin on behalf of himself files this complaint

against the above named Defendants. This is a civil tort action seeking a jury

trial and damages against these Defendants for (1) Civil Theft of personal

property, (2) Conversion, (3) Conspiracy, and (4) Unauthorized legal

representation, as these acts are defined by the Official Code of Georgia.

1
 PARTIES

Alexander Harvin is a consumer as defined by the Uniform Commercial

Code (UCC), the Georgia Commercial Code (GCC), and the Georgia Fair

Business Practice Act.

Hereafter the Plaintiff will be referred to as “Harvin”. Harvin is also a

resident of Rockdale County, Georgia.

Southtrust Mortgage Corporation is a foreign corporation that does business

in the State of Georgia. Hereafter Southtrust Mortgage Corporation will be

referred to as “SMC”.

SMC is registered with the Georgia Secretary of State and is subject to the

jurisdiction of the Courts of the State of Georgia.

Morris & Schneider, P.C. is a Georgia based law firm, their corporate office

is in Atlanta, Georgia. Hereafter Morris & Schneider, P.C., will be referred

to as “the Law firm “.

2
The Law firm is registered with the Georgia Secretary of State and is subject

to the jurisdiction of the Courts of the State of Georgia.

Republic Title Insurance is a Georgia based title insurance agency. Hereafter

Republic Title Insurance will be referred to as “Republic”. Republic is a

majority owned by the Law firm. Republic is registered with the Georgia

Secretary of State and is subject to the jurisdiction of the Courts of the State

of Georgia.

JP Morgan Chase is a foreign corporation that does business in the State of

Georgia. Hereafter JP Morgan Chase will be referred to as “Chase”. Chase is

registered with the Georgia Secretary of State and is subject to the

jurisdiction of the Courts of the State of Georgia.

3
 Jurisdiction and Venue

Jurisdiction and Venue are proper in the Superior Court of Rockdale County,

State of Georgia, pursuant to the Georgia Constitution and as Harvin’s

property, which is at issue in this complaint, is located in Rockdale County,

Georgia.

Facts

Harvin obtained a mortgage loan from SMC to purchase property located at

941 Cochise Trail SE, Conyers, and Ga.30094.

The Law firm represented the interests of SMC at the closing.

Republic participated in the closing due to their business affiliation with the

Law firm. At no time did Harvin retain the services of Republic or execute a

written contract for their services.

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 10

The Law firm engaged in a witness only real estate closing. At no time did

the Law firm make any disclosures regarding the “loan documents”.

11

The Note and Security Deed were drafted and prepared by the Law firm.

Harvin did not retain the Law firm for legal representation or enter into a

contractual agreement for such legal representation. Harvin’s copy of the

Note has no signatures.

12

The Georgia Legislature and the Georgia Supreme Court have expressly

declared that the preparation of deeds constitutes the practice of law, and is

to be undertaken on behalf of another only by a duly qualified and licensed

Georgia attorney.

UPL Advisory Opinion # 2003-2, Georgia Bar.

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 13

The Uniform Commercial Code (UCC), the Georgia Commercial Code

(GCC) and Georgia law recognize Harvin as the “maker” or “Creator” of the

Note and Security Deed. In fact the law holds Harvin accountable for the

preparation of and the language within these documents.

14

Harvin did not hire or retain the Law firm to draft and prepare the Note and

Security Deed on his behalf. Harvin did not authorize the preparation of

these important legal documents by the Law firm—whose client was SMC.

15

The Law firm did not disclose that (1) the law recognizes Harvin as the

Creator of the Note and Security Deed, (2) that Harvin is accountable for the

language within these documents, (3) that the Law firm would prepare these

documents on his behalf, or (4) that the Security Deed would transfer title to

the property to their client SMC, and its successors, and assigns.

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 16

The Law firm did not disclose that the Note would be deposited into SMC’s

bank account, and SMC’s asset balance would not decrease by the amount of

the Note [loan] but would actually increase.

17

The Law firm did not disclose that the Note would be pooled with other

notes, converted in a mortgage backed security, that in turn would be sold

for value on Wall Street. This process is known as Securitization.

18

The Law firm never disclosed that the Note and Security Deed are Harvin’s

personal property. Harvin never consented to or gave the Defendants

authorization to sell his personal property, the Note and Security Deed.

19

Harvin never consented to the process known as Securitization.

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 20

Black’s Law Dictionary –Centennial Edition– defines personal property

as: “Generally all property other than real estate; as goods, chattels, money,

notes, bonds, stocks, and choses in action generally, including intangible

property”.

21

Harvin has received no compensation for the sale of his personal property,

the Note and Security Deed by these Defendants.

22

The Note was sold to Investors, who in turn entered into what is known as a

Pool Servicing Agreement (PSA) with Chase. Under the PSA the trustees of

residential mortgage backed securitization trusts claim to own legal title to

Harvin’s mortgage, just as another entity, MERS also claims legal title to the

mortgage.1

1
For example the PSA will typically include language where a depositor warrants that “the
Mortgage Loan, including the Note and Mortgage…are not subject to an assignment or pledge, and
the Depositor has good and marketable title to and …is the sole owner thereof”. CHASE
MORTGAGE FINANCE CORP., DEPOSITOR, JP MORGAN CHASE BANK, N.A., SERVICER
AND WACHOVIA BANK, N.A., TRUSTEE POOLING AND SERVICING AGREEMENT; Date
11/01/2005, $1,900,007,729,12, Multi-Class Mortgage Pass-Through Certificates Series 2005-A1, at §
3.01(l)

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 23

The Defendants gained financially from their failure to disclose all aspects

of the Note and Security Deed to Harvin.

The Security Deed And MERS

24

MERS is also known as Mortgage Electronic Registration System. MERS is

a shell company created by mortgage bankers who decided they did not want

to pay recording fees for assigning mortgages to county governments

anymore. This decision was driven by securitization. Mortgage bankers

formed a plan to create one shell company that would pretend to own all the

mortgages in the country—that way, the mortgage bankers would never have

to record assignments or pay fees since the same company would always

“own” all the mortgages. They incorporated the shell company in Delaware

and called it Mortgage Electronic Registration System, Inc., aka MERS.

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 25

Harvin’s Security Deed is a standard Georgia MERS security deed as it is a

form deed used as an instrument to secure real property to ensure the

repayment of a loan.

26

Harvin’s loan is unsecured and the Security Deed is void.

27

60 to 80 percent of the security deeds on public record in Georgia name

MERS as the trustee, holding title to real property for the lender, their

successors, and assigns.

28

Members of MERS, such as Chase, SMC, and others enter into an

agreement with MERSCORP, the parent company of MERS, to

electronically register and track beneficial ownership interests and servicing

rights in MERS publically registered loans.

10
 29

MERS members agree to appoint MERS to act as their “nominee” and to

name MERS as the lien holder of record in a “nominee” capacity on all

recorded security instruments relating to loans registered on the MERS

system. When the original lender sells a note, the sale of the note is allegedly

tracked on the MERS system. The input of data on the MERS system by its

members is voluntary. A note can be sold and that information not recorded

on the MERS system.

30

MERS claims that once MERS becomes the beneficiary of record as

“nominee” regarding deeds of trust and becomes grantee of record as

“nominee” with respect to security deeds, it remains the beneficiary grantee

when the beneficiary ownership interests in the note or servicing rights are

sold by one MERS member to another, and the sale is tracked electronically

on the MERS system.

With “nominee” status only MERS claims to be something else entirely at

the same time—a beneficiary or grantee of a note or the servicing rights on

that note, even though (1) MERS never held and does not hold an ownership

interest in the note or servicing rights at the time of the original loan

11
transaction and after such note or servicing rights were sold (and re-sold) in

the market, whether as a mortgage backed security or otherwise, and (2)

MERS cannot be a trustee under Georgia law.

31

MERS claims that so long as the subsequent sale of the note or servicing

rights involves a MERS member, MERS remains the “beneficiary” of record

on the deed of trust or the “grantee” on the security deed and continues to act

as a “nominee” for the new beneficial owner.

32

Harvin obtained a residential mortgage loan to purchase a home and

property located in Conyers, Georgia, which was to be used as his primary

dwelling place at the time the Note and Security Deed were entered in to.

(Exhibit A and B respectively).

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 33

At the closing Harvin executed the Note that recognized the debt incurred

and a Security Deed that purported to pledge Harvin’s property located in

Conyers, Georgia, as security for the debt in the event of loan default.

34

There is also an insurance policy that benefits the lender in the event of loan

default. Harvin pays the monthly premium for this policy.

35

The Note was executed in favor of SMC and identified SMC as the note

holder. MERS was not identified as the lender or owner of the Note.

36

The Security Deed identifies Harvin as the “Grantor” aka Creator and named

MERS acting solely as a “nominee” for SMC as Grantee.

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 37

Pursuant to the Security Deed Harvin authorized SMC, its successors, and

assigns to act as Attorney in Fact for purposes of exercising the power of

sale clause of the Security Deed.

38

Harvin has since revoked the power of attorney with power to sale

previously granted.

39

In relation to Harvin’s Note and Security Deed it cannot be assumed that

because MERS was named as the initial nominee, that it still retains that

relationship with the actual holder of the note. If the current holder of the

note is not a MERS member then the chain is broken. If a former note holder

was not a MERS member, then sold the note to a MERS member the chain

remains broken. There is no public record of note ownership or owner

history.

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 40

MERS holds the security in a nominee capacity but without rights to the

debt. MERS does not service the debt or receive payments for remission to

the note holder.

41

The Security Deed identifies MERS as a separate corporation that is acting

solely as a nominee for SMC, its successors, and assigns.

42

MERS is not a lender as that term is defined by the Georgia Department of

Banking and Finance. MERS has successfully argued in another forum that

it is not a lender.

Mortgage Elec.Reg.Sys. vs. Nebraska Dept.of Banking, 270 Neb.529. 704

N.W. 2d 784 (2002).

15
 MERS Is Illegal In Georgia

43

In the State of Georgia MERS does not have the legal capacity to act as a

Trust or Corporate Fiduciary, thereby rendering void Harvin’s Security Deed

which names MERS acting solely as “nominee” for SMC, its successors,

and assigns. O.C.G.A § 7-1-4(40), O.C.G.A. § 7-1-4 (20)

44

The term “nominee” is not defined in Harvin’s Security Deed.

45

Georgia law does not recognize the term “nominee” in a real estate

transaction wherein the grantee holds legal title for the benefit of another.

16
 46

A “nominee” is defined as “ a person designated to act in place of another,

usually in a very limited way” and as “ a party who holds bare legal title for

the benefit of others or who receives and distributes funds for the benefit of

others”.

Black’s Law Dictionary 1076 (8th ed.2004)

47

A “ beneficiary” is defined as “ one designated to benefit from an

appointment, disposition, or assignment…or to receive something as a result

of a legal arrangement or instrument”.

Black’s Law Dictionary 165 (8th ed.2004)

48

According to MERS “ Terms & Conditions” as found on the MERS website

MERS is not a beneficiary as it has no rights to any payments, servicing

rights, or to any property secured by a loan.

17
 49

Under Georgia law a corporation such as MERS, acting as a fiduciary,

O.C.G.A. § 7-1-242 says:

1. No Corporation, Partnership, or other business association may

lawfully act as a fiduciary in this State except:

2. A financial institution authorized to act in such capacity pursuant to

the provisions of Georgia law.

3. A Trust Company

4. A National bank or State Bank lawfully doing banking business in this

State and authorized to act as a fiduciary under the laws of the United

States or another state.

5. A Savings Bank or Savings and Loan Association lawfully doing a

banking business in this State and authorized to act as a fiduciary

under the laws of the United States or another state.

6. Attorneys at law licensed to practice in this State, whether

incorporated as a professional corporation or otherwise.

7. An investment adviser registered pursuant to the provisions of 15

U.S.C. § 80b-3 or Chapter 5 of Title 10, provided this exception shall

not authorize an investment advisor to act in any fiduciary capacity

subject to the provisions of Title 53, relating to Wills, Trusts, and the

18
 administration of estates

8. A securities broker or dealer registered pursuant to the provisions 15

U.S.C. § 78o or Chapter 5 of Title 10 acting in such fiduciary capacity

incidental to and as a consequence of its broker or dealer activities.

Acting as a fiduciary for purposes of this Code Section includes but is not

limited to:

1. Accepting or executing trusts or otherwise acting as a trustee;

2. Administering real or tangible personal property located in Georgia or

elsewhere. For purposes of this paragraph “administer” means to

possess, purchase, sell, lease, insure, safe keep, manage, or otherwise

oversee;

3. Acting pursuant to a court order as personal representative, executor,

or administrator of the estate of a deceased person or as guardian or

conservator for a minor or incapacitated person.

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 50

MERS is organized and existing under the laws of Delaware and has an

address and telephone number of P.O.Box 2026, Flint, MI, 48501-2026, tel.

(888) 679- MERS. O.C.G.A. § 7-1-4 (40), See Exhibit B.

51

MERS is clearly acting as a Trust Company as its role with respect to

Harvin’s Security Deed is to hold legal title to Harvin’s property for the

benefit of another.

“ No formal words are necessary to create a trust estate. Whenever a

manifest intention that another person shall have the benefit of the property

is exhibited, the grantee shall be declared a trustee”.

Carmichael Tile Co. vs. Yaarab Temple Bldg.Co, 182 Ga. 348 (Ga.1936)

52

O.C.G.A. § 53-12-24(a), states that a corporation that wishes to act, as

trustee “must” have the power to act as trustee in the State of Georgia. See

also O.C.G.A. 7-1-4 (40)

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 53

O.C.G.A. § 7-1-242 provides that only certain corporations or business

entities may act as a fiduciary in Georgia. These are Banks, Trust

Companies, and other financial institutions.

54

A Corporation must receive approval to act as a bank or trust company as set

forth in O.C.G.A. § 7-1-395 et.seq, MERS cannot lawfully act as a corporate

fiduciary in Georgia. O.C.G.A § 7-1-4 (40)

55

MERS has never sought nor has it been granted authority by the Georgia

Dept. of Banking & Finance to act as a trustee or to operate as a trust

company—MERS position as “nominee” for SMC, its successors, and

assigns, MERS position as the Grantee of Harvin’s Security Deed where it is

tasked with holding legal title to Harvin’s property for the benefit of another

is void and illegal in the State of Georgia.

21
 56

Harvin’s Security Deed meets all the requirements and contains all the

elements of a Trust document as defined by the Uniform Commercial Code.

57

Harvin conveyed legal title to the “trust property” to MERS as “trustee” for

SMC and its successors, and assigns.

58

The Security Deed identifies Harvin as the “Grantor”. O.C.G.A. § 53-12-2

(7): “Settlor” means the person who creates the trust. The terms

“Grantor” and “ Trustor” mean the same as “ Settlor”.

59

Georgia law recognizes Harvin as the Creator of the Trust aka Security

Deed. As the Creator of the Trust aka Security Deed this document is also

Harvin’s personal property.

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 60

MERS is acting unlawfully as a corporate fiduciary in the State of Georgia,

61

The Security Deed violates Georgia Public policy because MERS is not a

trust company or bank, and is operating illegally as a corporate fiduciary by

obtaining title to real property in the State of Georgia as a trust or trustee for

the benefit of MERS members and non-members.

62

MERS is an illegal entity that defrauds county governments in Georgia of

millions of dollars in land recording fees. Neither the Georgia Legislature

nor Congress has authorized or made legal the MERS concept. County

Governments use these fees to fund their offices, schools, police

departments, etc.

63

MERS has no legal authority to hold legal title to any real property or notes

in the State of Georgia as a trust or trustee.

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 64

MERS is acting as a trust or trustee without approval from the Georgia Dept.

of Banking & Finance. O.C.G.A § 7-1-4 (40)

65

MERS cannot register to act as a trust or trustee in Georgia because it does

not now meet the registration requirements to become registered by the

Georgia Dept. of Banking & Finance. O.C.G.A. § 7-1-4 (21)

66

The creation of MERS by Chase, SMC, and others in the mortgage banking

industry requires the deeds and mortgages to be separated from the note.

Absent a joinder of these documents there can be no enforcement of the

debt. With the creation of MERS there is no longer an authoritative public

record of who owns the land in each county.

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 67

Chase and others in the mortgage banking industry commissioned a study by

Ernst & Young to determine how much money they could defraud county

governments of—thru the creation of MERS.

Phyllis K.Slesinger & Daniel McLaughlin, Mortgage Electronic

Registration System, 31 lD. L.Rev.805, 810-12(195)

68

Since America’s beginning each county has maintained public record of who

owns the land within that county.

Patton and Palomar on Land Titles § 4 (3d ed. 2003)

69

Georgia has tracked changes in land ownership, including mortgages and

deed by maintaining records indexed thru the names of grantors and

grantees.

14 Powell on Real Property § 82.03 [2] [b]

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 70

The grantor-grantee index system allows persons and business

contemplating land purchases to hire a title insurer to investigate whether a

seller or mortgagor actually owns the land they offer for sale or mortgage.

71

Where a mortgagee assigns a mortgage to an investor, that investor (under

the grantor-grantee index system) would record documentation reflecting the

assignment to protect him from the possibility that the original mortgagee

would assign the same mortgage to a different investor. All of this changed

when the banks decided they did not want to pay land recording fees

anymore.

72

Under MERS the banks no longer pay county recording fees—MERS

pretends to own all the mortgages in America—thru MERS the banks never

record assignments since the same company [MERS] always “own” all the

mortgages. MERS is a tax haven within the U.S. for the rich to avoid paying

such fees—as they are required to do by Georgia law.

26
 73

Considering themselves “too big” to respect any legal authority in the

United States, the mortgage bankers created MERS even though not a single

state legislature, U.S.Congress, Appellate Court, State Supreme Court, or the

U.S.Supreme Court authorized this dramatic change in the public recording /

public policy of land recording laws.

74

Public policy justifications behind Georgia’s land recording statues are as

germane today as they were centuries ago when the first American colonies

began adopting the statues. Our society needs an authoritative, transparent

source of information on who owns land in order to protect property rights,

encourage commerce, expose fraud, and avoid disputes.

75

County real property records that hold only a reference to MERS now have a

systemic break in the chain of title.

27
 76

At all times prior to, during, and after the closing, the Defendants knew or

should have known that MERS is an illegal corporate entity doing business

in the State of Georgia. O.C.G.A. § 7-1-4 (21) (40)

These Defendants chose financial gain over ethically, legally, required

disclosure. They failed to disclose the truth about their lending practices.

Harvin Fires MERS and Reconveys Title

77

Harvin incorporates by this specific reference the preceding paragraphs of

this complaint as if stated fully herein.

78

Exercising his rights and authority as the Trustor aka Creator of the trust

document—the Security Deed—Harvin sent the following documents to

each of the Defendants named herein and also to MERS:

28
 1. Revocation of Power of Attorney—this document effectively

revokes the Lender, its successors, and assigns, power to sale and to

act as attorney in fact for Harvin. (Exhibit C)

2. Affidavit in Commerce— this document alleges elements of fraud

that Harvin implies the Defendants have committed (Exhibit D)

3. Notice of Reconveyance of Title—this document advised the

Defendants that they were to respond to the Affidavit in Commerce

within thirty days, with an affidavit of their own, if they failed to act

within thirty days Harvin would Reconvey title to himself,

unencumbered. (Exhibit E)

4. Reconveyance of Title — The Defendants did not respond to the

affidavit in commerce as the Trustor (Harvin) required in a timely

manner. In lieu of this intentional default the Trustor (Harvin)

publically recorded a Reconveyance of Title—filed with the Rockdale

County Court Clerk on December 17,2010.2 (Exhibit F)

2
More than ninety days have past and Harvin’s Reconveyance of Title remains uncontested. It is now a
permanent action. The time to challenge has been waived by the Defendants.

29
 79

Defendant Chase responded to the aforementioned documents by letter dated

November 22,2010, stating:” Your issue is being reviewed and we will

work to provide you with a complete and accurate response in a timely

manner…The executive specialist assigned to your issue, Richard

Peppers, can be reached…”

The letter was not signed; a copy of the letter is attached as Exhibit G.

80

The remaining Defendants nor MERS have responded to the documents

forwarded by Harvin.

81

If the Defendants truly believe that they have done nothing illegal, unethical,

or immoral, they would have no issue providing a sworn affidavit to that

effect as the Trustor (Harvin) demanded.

30
 82

Harvin exercised his rights and authority as Trustor, Settlor, Grantor, aka

Creator—MERS was fired for cause and is no longer Trustee, Grantee, or

nominee. MERS no longer holds legal title to Harvin’s property.

Prayer For Relief

83

WHEREFORE, Alexander Harvin prays that the Court grant the following

relief:

84

That the Court grant declaratory judgment which states that the Defendants

have no legal standing, proper, legal or equitable interest in either the Note

and Security Deed.

85

That the Court grant declaratory judgment that the Note and Security Deed

are the personal property of Alexander Harvin.

31
 86

That the Court grants declaratory judgment that the sale of the Note and

Security Deed was not authorized or consented to by Alexander Harvin.

87

That the Court grants declaratory judgment that the Defendants act of selling

the Note constitutes the crime of conversion as it is defined by the Official

Code of Georgia.

88

That the Court declares that the Defendants failure to disclose that the Note

and Security Deed are the personal property of Alexander Harvin constitutes

civil theft by deception as defined by the Official Code of Georgia.

89

That the Court declares that the drafting and preparation of the Note and

Security Deed by the Defendants on behalf of Alexander Harvin constitutes

unauthorized legal representation.

90

That the Court declares that the mortgage loan is unsecured.

32
 91

That the Court declares that MERS is illegal under Georgia law and has no

authority to act as a fiduciary in the State of Georgia.

92

That the Court declares that MERS is not a nominee, grantee, trustee, or

other party as named in the Security Deed.

93

That the Court declare that Alexander Harvin by proper exercise of his rights

and authority as the Creator of the Security properly terminated MERS as a

party to the Security Deed.

94

That the Court declares that Alexander Harvin as the Creator of the Security

Deed has properly reconveyed Title to the Property to himself

unencumbered.

95

That the Court declares that the Defendants intentional separation of the

Note and Security Deed has rendered the Security Deed null and void,

causing the Note to be unenforceable.

33
 96

That the Court order the Defendants to document the lawful chain of title to

the Note so as to determine each lawful transfer and who is the current

holder in due course of the Note.

97

That the Court determine that Alexander Harvin has no contractual

agreement with any loan servicer hired by the alleged note holder.

98

That each Defendant be required to prove up the chain of title to the Note

and that they properly perfected their lien interests as required by Georgia

law.

99

That the Defendants pay just compensation to Alexander Harvin for each

unauthorized sale of his personal property—The Note and Security Deed.

100

That the original Note and Security Deed be returned to Alexander Harvin.

34
 101

That the Court declares the property free and clear from all claims and

encumbrances.

102

That the Court declare that the Defendants engaged in conspiracy to commit

theft of property by deception, conversion, unauthorized legal

representation, and unauthorized sale of personal property, as conspiracy is

defined by the Official Code of Georgia.

103

Alexander Harvin requests a jury trial to determine actual damages against

the Defendants, jointly and severally.

Respectfully Submitted,

______________________
ALEXANDER HARVIN
Authorized Representative
In Pro Se
P.O.Box 82665
Conyers, Ga. 30013
(770) 841-0784

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