IN THE UNITED STATES COURT OF APPEALS

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).

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.

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. 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 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).

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 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 HULTMANThe 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.

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. 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?

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 16-10-20 (1) Under this statue the question of whether a homeowner is a non-party 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

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

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

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

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

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