Emergency Petition for TRO/Preliminary Injunction

					                 SUPERIOR COURT OF FAYETTE COUNTY
                               STATE OF GEORGIA


                  G F;
                Plaintiff
                                                      CIVIL ACTION
                    v
                                                  FILE NO: 2009V-1442H
    BANK OF AMERICA MORTGAGE;
                  Defendants



          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.


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.
3.     BOA was Served with Petition, through the attorneys pursuing foreclosure
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 5th 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
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most current Deed of record for the subject residential properties.
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.

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

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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
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.

                                             -4 -
             “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
         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

                                          -5 -
that he had been pursuing information on his Mortgage from defendants since March
31, 2009.
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

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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
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


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.

                                          -7 -
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
       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 Se
                                                         1111 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
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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
and correct to the best of my knowledge and belief.


This ____ day of October, 2009


                                                      __________________________
                                                           GF




 Subscribed and sworn to before me,
      this ____ day of October, 2009.


              Seal




 __________________________________
           Notary Public
My Commission Expires: ________________




                                         -9 -
                  SUPERIOR COURT OF FAYETTE COUNTY
                               STATE OF GEORGIA


                   G F;
                 Plaintiff
                                                       CIVIL ACTION
                    v
                                                   FILE NO: 2009V-1442H
           BANK OF AMERICA;
                  Defendants



                             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.

                                           _______________________________
                                                             GF
                                                        1111 XXXX
                                                 Fayetteville, Georgia 30215




                                         - 10 -
                                                                      Exhibit A
                                     08 SB531/AP
                                    Senate Bill 531
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

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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,
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,

                                            - 12 -
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."
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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