SUPERIOR COURT OF FAYETTE COUNTY

STATE OF GEORGIA

G F;

Plaintiff

v

BANK OF AMERICA MORTGAGE;

Defendants

CIVIL ACTION

FILE NO: 2009V-1442H

VERIFIED EMERGENCY PETITION FOR TEMPORARY

RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

COMES NOW, Plaintiff1 G F and files Verified Emergency Petition for

Temporary Restraining Order and/or Preliminary Injunction pursuant to Uniform

Superior Court Rules 6.7,2 and O.C.G.A. §9-11-65(b) against the listed Defendants.

PARTIES TO THE ACTION

1. G F at all times relevant has resided at 1111 XXX Fayetteville, Georgia 30215

2. Defendant Bank of America3, is part of Bank of America, a National Banking

Corporation, Mortgage Lender and Servicer.

3. BOA was Served with Petition, through the attorneys pursuing foreclosure

1 One of the people of Georgia, the Sovereign spoken of in Yick Wo vs. Hopkins 118 U.S. 356 (1886) http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=118&invol=356 2 U.S.C.R. Rule 6.7: “…judge may shorten or waive the time requirement applicable to emergency motions, ...The motion shall set forth in detail the necessity for such expedited procedure.”3 Referred to hereinafter as “BOA” Plaintiff is unsure whether Bank of America Funding, or other entity is holder of the note, as BOA failed to properly disclose the information upon request through qualified written request.

proceedings: Law office of Johnson and Freeman LLC, 1587 Northeast expressway,

Atlanta 30329; and by sending a copy directly to Bank of America 475 CrossPoint

Parkway Getzville, New York 14068-9000.

BRIEF BACKGROUND

4. Plaintiff executed a Security Deed for the property located at 1111 XXX,

Fayetteville, Georgia 30215 in favor of Bank Of America Mortgage on July 9, 2007.

5. Said deed was duly recorded as: Land Lot 25 Of the 5 th District of Fayette

County, Georgia, Being Lot 7, Block A, Unit One of the Huntington South

Subdivision as per Plat Recorded in the Plat Book 10, Page 189, Fayette County,

Georgia Records.

6. The loan number associated with the above referenced Security Deed is

123456789.

7. At all times since recordation of Plaintiff’s Deed, to the best of Plaintiff’s

knowledge and belief, the loan had continually been with BOA, Loan Number:

6487285246, and Plaintiff’s contact information has remained the same.

8. Plaintiff has been denied actual knowledge in violation of state, federal statutes,

and FDCPA and RESPA, of the holder of the note at present, and failure to disclose to

Plaintiff whether or not BOA has transferred the note to a different division within

BOA.

9. The Defendants knowingly, willingly, and wantonly acted in bad faith, and with

blatant disregard of Plaintiff’s property Rights, Federal Law and Georgia Statutes in

an attempt to perpetrate a fraud, and wrongfully foreclose upon subject real property.

10 Defendants have executed a Notice of Default and Notice of Sale under Power,

without providing Plaintiff proper Notice as required by Georgia law.

11. To the best of Plaintiff’s knowledge and belief, and from what he could learn

from Fayette County, the Security Deed recorded in Plat Book 10, Page 189, is the

most current Deed of record for the subject residential properties.

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12. Without notifying Plaintiff the required thirty (30) days prior to,4 the

Defendants began pursuing foreclosure of Plaintiff’s property.

13. Defendants’ attempt to foreclose upon the subject property violates OCGA § 44-

14-162(b).

14. Notice requirements of O.C.G.A. § 44-14-162 were changed from 15 days to 30

days May 13, 2008 When Governor Perdue signed into law Senate Bill 531, a copy of

information concerning SB531 is attached hereto as Exhibit A

15. The date of sale is set for November 3, 2009; without intervention from this

Court, Plaintiff’s property will be illegally sold that day.

16. Defendants’ actions violate Plaintiff’s Rights to make requests under The Fair

Debt Collection Practices Act.

17. These Defendants knowingly, willingly, wantonly, fraudulently and illegally

continued to pursue the Sale under Power in direct violation of the Fair Debt

Collection Practices Act, § 809(b):

The Fair Debt Collection Practices Act, § 809(b):

(b) “If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.”

18. These Defendants have knowingly, willingly, wantonly, fraudulently and

illegally continued to pursue the Sale under Power in direct violation of The Real

Estate Settlement Procedures Act.

19. Although requests for information has been repeatedly made, Plaintiff has

never been supplied with proper evidence that BOA is still in fact the legal holder of

4 Plaintiff received the Notice of sale on or around October 12, 2009.

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the mortgage.

20. There has been no further mortgage, security deed, assignment, lien contract,

transfer or conveyance recorded for the subject property to Plaintiff’s knowledge.

21. Defendants’ attempt to foreclose upon the subject residential property violates

OCGA § 44-14-162(b).

OCGA § 44-14-162(b):

“The security instrument or assignment thereof vesting the secured creditor with title to the security instrument shall be filed prior to the time of sale in the office of the clerk of the superior court of the county in which the real property is located.”

22. To Plaintiff’s knowledge and belief, there is no Note on the Official Record to

secure the above referenced Security Deed.

23. To date, Defendants have knowingly, willingly, and wantonly failed to adhere

to the mandates of Federal and state law which would have properly alerted Plaintiff

to request BOA to produce the promissory note.

24. Allowing the Sale under Power to be completed, would not only expose

Plaintiff to potentially ruinous financial liability, but would also be a direct violation

of The Due Process Clause, and numerous Constitutional guarantees concerning

property.

MEMORANDUM OF LAW IN SUPPORT OF TRO and/or

PRELIMINARY INJUNCTION

25. Plaintiff G F incorporates fully and by this specific reference the statements in

paragraphs 1 through 25 of this Petition/Complaint as if stated fully herein.

“A motion for interlocutory injunction or a TRO is an extraordinary motion, which is time sensitive, unlike other motions, because it seeks to preserve the status quo until a full hearing can

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be held to avoid irreparable harm.” Focus Entertainment International, Inc., v. Partridge Greene, Inc. (253 Ga. App. 121) (558 SE2d 440) (2001).

26. The Focus Court went on to explain that foreclosure is one such instance which

“injunction is appropriate” because “when an interest in land is threatened with

harm”, “such harm is deemed to be irreparable to the unique character of the property

interest, i.e., money damages are not adequate compensation to protect the interest

harmed.” See the following:

“(a) Land, under Georgia law, is deemed sufficiently unique that it is entitled to equitable remedies to protect such interest in land. Rife v. Corbett, 264 Ga. 871 (455 SE2d 581) (1995) (injunction to protect an easement); Benton v. Patel, 257 Ga. 669, 672 (1) (362 SE2d 217) (1987) (injunction to stop foreclosure); Black v. American Vending Co., 239 Ga. 632, 634 (2) (238 SE2d 420) (1977) ("the law regards as sufficiently unique that equity will enforce a contract for [land] sale or lease"); Clark v. Cagle, 141 Ga. 703, 705-706 (1) (82 SE 21) (1914) (specific performance of contract to sell land). Therefore, when an interest in land is threatened with harm, equitable injunctive relief is appropriate, because such harm is deemed to be irreparable to the unique character of the property interest, i.e., money damages are not adequate compensation to protect the interest harmed. See generally Central of Ga. R. Co. v. Americus Constr. Co., 133 Ga. 392, 398 (65 SE 855) (1909) (irreparable injury defined to enjoin a nuisance); see also Roth v. Connor, 235 Ga. App. 866, 868-869 (1) (510 SE2d 550) (1998) (property interests of grantor and others in restrictive covenants for their benefit).”

27. Plaintiff has made a showing that without an Emergency Order granting a

Temporary Restraining Order or Preliminary Injunction, Plaintiff will be irreparably

harmed. Further, Plaintiff’s Petition is Verified, Plaintiff has shown the court, that

had he been properly, legally Noticed before foreclosure actions began, he would have

taken the proper steps to prevent such action. Plaintiff has further shown the Court

that he had been pursuing information on his Mortgage from defendants since March

31, 2009.

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28. Plaintiff has requested documents from BOA on March 31, 2009, May 4, 2009,

and June 15, 2009.

29. BOA has shown a practice or pattern of refusing to produce the necessary

documents requested in violation of RESPA 2605(e).

30. In times such as now, with mortgage fraud at the highest level in history, there

has to be some evidence verifying the loan presented to you when requested. Plaintiff

been denied his Rights to notify “the debt collector in writing within the thirty-day

period described in subsection (a) that the debt, or any portion thereof, is disputed, or

that the consumer requests the name and address of the original creditor, the debt

collector shall cease collection of the debt, or any disputed portion thereof, until the

debt collector obtains verification of the debt or any copy of a judgment, or the name

and address of the original creditor, and a copy of such verification or judgment, or

name and address of the original creditor, is mailed to the consumer by the debt

collector.” O.C.G.A.. §9-11-65 allows the Court to grant such Orders without notice

to opposition in certain circumstances.

O.C.G.A. §9-11-65

(b) Temporary restraining order; when granted without notice; duration; hearing; application to dissolve or modify.

“A temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if: (1) It clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition; and (2) … certifies to the court, in writing, the efforts, if any, which have been made to give the notice and the reasons supporting the party's claim that notice should not be required.”

31. Further, because Defendants would be required to cease all foreclosure

proceedings until such time as the debt was validated; and Plaintiff is ignorant of the

true identity of the actual holder in due course with BOA. Therefore, allowing the

Sale under Power to be completed would expose Plaintiff to potentially ruinous

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financial liability in the event that the actual holder in due course should one day

make a claim upon the Note.

CONCLUSION AND PRAYER FOR RELIEF

Plaintiff incorporates fully and by this specific reference the statements in

paragraphs 1 through 31 as if stated fully herein.

Plaintiff in this matter, would have approached the Defendants in the proper

manner as required by law in a good faith attempt to remedy what could result in the

loss of Plaintiff’s property through no fault of his own. The Defendants on the other

hand, refused to adhere to the mandatory state and federal laws that would have

allowed Plaintiff to obtain requested documented evidence of their claims, blatantly

showing bad faith, and a healthy lack of respect for the laws of this state.

Plaintiff has shown that Defendants violated Plaintiff’s rights under the Fair

Debt Collection Practices Act thereby entitling Plaintiff to all appropriate relief

provided for by statute.

Plaintiff has shown that Defendants violated Plaintiff’s rights under OCGA §

44-14-162. (b) thereby entitling Plaintiff to all appropriate relief provided for by

statute.

Plaintiff has shown that Defendants violated Plaintiff’s rights under RESPA.5

Plaintiff regrets the emergency nature of this petition and prays the Courts

GRANT the following relief:

(a) GRANT an Emergency Temporary Restraining Order and/or Preliminary

Injunction to prevent the foreclosure of Plaintiff’s property.

(b) COMPEL Production of the Original Promissory Note(s).

(c) COMPEL proof of any assignments, lien or any other instrument that proves any

5 Real Estate Settlement Procedures Act, Fair Debt Collection Practices Act, are both consumer protection statutes which when violated, give cause for Judgment against opposing party.

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claims by any alleged holders in due course.

(d) COMPEL validation of the alleged Debt

(e) COMPEL verification of the loan number and the use of the correct loan number

in any proceeding henceforth.

(f) Compel compliance with OCGA § 44-14-162.(b).

(g) Compel compliance with Plaintiff’s continued request for certain documentation

(g) GRANT Plaintiff all court costs and court related fees.

(h) GRANT Plaintiff any and all other and/or further relief allowed by law and/or

which this Court deems just and proper.

Respectfully submitted this 23rd day of October, 2009

By: _______________________________G F, Pro Se1111 XXXX

Fayetteville, GA 30215

VERIFICATION

I, Plaintiff G F, having been duly sworn, under penalty of perjury, deposes and

says that I am over the age of eighteen (18) and mentally competent to testify in this

matter, and from first hand knowledge state: My person and my property are in

danger of immediate and irreparable injury, and loss, or damage will result to the

applicant before the adverse party or his attorney can be heard in opposition; and I

hereby Certify, that the facts set forth regarding all matters stated in the above

paragraphs are true and correct to the best of my knowledge and belief, therefore since

this is an Emergency Petition further notice should not be required. I have read the

foregoing pleading, the facts stated therein are from first hand knowledge and are true

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and correct to the best of my knowledge and belief.

This ____ day of October, 2009

__________________________G F

Subscribed and sworn to before me,

this ____ day of October, 2009.

Seal

__________________________________Notary Public

My Commission Expires: ________________

SUPERIOR COURT OF FAYETTE COUNTY

STATE OF GEORGIA

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G F;

Plaintiff

v

BANK OF AMERICA;

Defendants

CIVIL ACTION

FILE NO: 2009V-1442H

CERTIFICATE OF SERVICE

I, G F Certify that I have this 23rd day of October, 2009 served the foregoing Verified

Emergency Petition for Temporary Restraining Order and/or Preliminary

Injunction upon the Defendants, through their attorney on file, and to their New York

Office by causing a true and correct copy to be deposited with USPS first class mail,

proper postage affixed and addressed as follows:

Law office of Johnson and Freeman LLC, 1587 Northeast Expressway, Atlanta, GA 30329

Bank of America 475 CrossPoint Parkway Getzville, New York 14068-9000.

_______________________________G F

1111 XXXXFayetteville, Georgia 30215

Exhibit A08 SB531/AP

Senate Bill 531

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By: Senators Hamrick of the 30th, Orrock of the 36th, Brown of the 26th, Chance of

the 16th, Thompson of the 5th and others

AS PASSED

AN ACT To amend Article 7 of Chapter 14 of Title 44 of the Official Code of

Georgia Annotated, relating to foreclosure on mortgages, conveyances to secure debt,

and liens, so as to require a foreclosure to be conducted by the current owner or holder

of the mortgage, as reflected by public records; to provide for the identity of the

secured creditor to be included in the advertisement and in court records; to change

the requirement for mailing or delivery of notice to debtor for sales made under the

power of sale in a mortgage, security deed, or other lien contract; to provide for the

content of such notice; to provide for related matters; to provide an effective date; to

repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.Article 7 of Chapter 14 of Title 44 of the Official Code of Georgia

Annotated, relating to foreclosure on mortgages, conveyances to secure debt, and

liens, is amended by revising Code Section 44-14-162, relating to manner of

advertisement and conduct necessary for validity for sales made on foreclosures under

power of sale, as follows:

"44-14-162.(a) No sale of real estate under powers contained in mortgages, deeds, or

other lien contracts shall be valid unless the sale shall be advertised and conducted at

the time and place and in the usual manner of the sheriff´s sales in the county in which

such real estate or a part thereof is located and unless notice of the sale shall have

been given as required by Code Section 44-14-162.2. If the advertisement contains the

street address, city, and ZIP Code of the property, such information shall be clearly set

out in bold type. In addition to any other matter required to be included in the

advertisement of the sale, if the property encumbered by the mortgage, security deed,

or lien contract has been transferred or conveyed by the original debtor to a new

owner and an assumption by the new owner of the debt secured by said mortgage,

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security deed, or lien contract has been approved in writing by the secured creditor,

then the advertisement should also include a recital of the fact of such transfer or

conveyance and the name of the new owner, as long as information regarding any

such assumption is readily discernable by the foreclosing creditor. Failure to include

such a recital in the advertisement, however, shall not invalidate an otherwise valid

foreclosure sale.

(b) The security instrument or assignment thereof vesting the secured creditor with

title to the security instrument shall be filed prior to the time of sale in the office of the

clerk of the superior court of the county in which the real property is located."

SECTION 2. Said article is further amended by revising Code Section 44-14-162.2,

relating to sales made under the power of sale, mailing or delivery of notice to debtor,

and procedure, as follows:"44-14-162.2.

(a) Notice of the initiation of proceedings to exercise a power of sale in a mortgage,

security deed, or other lien contract shall be given to the debtor by the secured creditor

no later than 30 days before the date of the proposed foreclosure. Such notice shall be

in writing, shall include the name, address, and telephone number of the individual or

entity who shall have full authority to negotiate, amend, and modify all terms of the

mortgage with the debtor, and shall be sent by registered or certified mail or statutory

overnight delivery, return receipt requested, to the property address or to such other

address as the debtor may designate by written notice to the secured creditor. The

notice required by this Code section shall be deemed given on the official postmark

day or day on which it is received for delivery by a commercial delivery firm. Nothing

in this subsection shall be construed to require a secured creditor to negotiate, amend,

or modify the terms of a mortgage instrument.

(b) The notice required by subsection (a) of this Code section shall be given by

mailing or delivering to the debtor a copy of the notice of sale to be submitted to the

publisher."

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SECTION 3.This Act shall become effective upon its approval by the Governor or

upon its becoming law without such approval.

SECTION 4.All laws and parts of laws in conflict with this Act are repealed.

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