Case 1:10-cv-03732-CAP -AJB Document 17-1 Filed 01/10/11 Page 1 of 22

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

WENDY N. JENKINS, ELEANOR )

SPRATLIN CRAWFORD, each Plaintiff )
individually, and on behalf of all Georgia
)
residents similarly situated. )
) CASE NO. 10-CV-3732-CAP-AJB
Plaintiffs, )
)
)
vs. )
) PLAINTIFFS DEMAND TRIAL
) BY JURY
McCALLA RAYMER, LLC, THOMAS A. )
SEARS, ESQ., INDIVIDUALLY, AS AN )
OFFICER OF MORTGAGE ELECTRONIC)
REGISTRATION SYSTEMS, INC, AS AN )
OFFICER OF WELLS FARGO, AND AS )
AN EMPLOYEE OF McCALLA RAYMER)
CHARLES TROY CROUSE, ESQ., aka C. )
TROY CROUSE ESQ., INDIVIDUALLY, )
AS AN OFFICER OF MORTGAGE )
ELECTRONIC REGISTRATION )
SYSTEMS, INC, AS AN OFFICER OF )
WELLS FARGO AND AS AN EMPLOYEE)
OF McCALLA RAYMER, MERSCORP )
INC., BANK OF AMERICA, N.A., BAC )
HOME LOANS SERVICING, LP., fka )
COUNTRYWIDE HOME LOANS )
SERVICING, LP.,WELLS FARGO BANK, )
N.A., PROMMIS SOLUTIONS, LLC., )
PROMMIS SOLUTIONS HOLDING INC., )
GREAT HILL PARTNERS, INC., )
MORTGAGE ELECTRONIC )
REGISTRATION SYSYTEMS INC. )
AMERICA’S SERVICING COMPANY, )
TAYLOR BEAN &WHITAKER, )
CRYSTAL WILDER, INDIVIDUALLY, )
AS NOTARY PUBLIC AND AS AN )
EMPLOYEE OF McCALLA RAYMER, )
ELIZABETH LOFARO, INDIVIDUALLY,)
AS NOTARY PUBLIC AND AS AN )
EMPLOYEE OF McCALLA RAYMER, )
CHIQUITA RAGLIN, INDIVIDUALLY, )
 Case 1:10-cv-03732-CAP -AJB Document 17-1 Filed 01/10/11 Page 2 of 22

AS NOTARY PUBLIC AND AS AN )

EMPLOYEE OF McCALLA RAYMER, )
VICTORIA MARIE ALLEN, )
INDIVIDUALLY, AS NOTARY PUBLIC )
AND AS AN EMPLOYEE OF McCALLA )
RAYMER, IRIS GISELLA BEY, )
INDIVIDUALLY, AS NOTARY PUBLIC )
AND AS AN EMPLOYEE OF McCALLA )
RAYMER, JAMELA REYNOLDS, )
INDIVIDUALLY, AS NOTARY PUBLIC )
AND AS AN EMPLOYEE OF McCALLA )
RAYMER AND LATASHA DANIEL, )
INDIVIDUALLY, AS NOTARY PUBLIC )
AND AS AN EMPLOYEE OF McCALLA )
RAYMER )
)
Defendants. )

PLAINTIFFS’ BRIEF IN RESPONSE TO DEFENDANTS’ MOTION TO

DISMISS

COMES NOW, Wendy Jenkins and Eleanor Spratlin Crawford, each

Plaintiff individually, and on behalf of all Georgia residents similarly situated, and

respectfully RESPOND to Defendant’s Motion to Dismiss and shows this

Honorable Court as follows:

Plaintiffs have plead “enough facts to State a Claim to relief that is plausible on

its face” as required by law and required under the Federal Rules of Civil

Procedure 12(b)(6).

FACTS OF THE CASE

This action is a Class Action Complaint. Plaintiffs seek, inter alia, the

injunction of various foreclosure and eviction proceedings, as representatives for

 Case 1:10-cv-03732-CAP -AJB Document 17-1 Filed 01/10/11 Page 3 of 22

themselves and of that Class of homeowners similarly situated, based upon the

Defendants, each of them either Bankers, Lenders, Attorneys at Law, individuals,

document preparers and their agents and employees acting in concert and their

routine failure to comply with statutory prerequisites to foreclosure.

Plaintiffs and the class they seek to represent also seek a determination of

the validity of foreclosure sales held in violation of statutory requirements,

together with damages and other relief.

In recent years, many foreclosing entities, including Defendant attorneys,

law firms, bankers, lenders, document preparers, their agents and employees have

dispensed with the fundamental requirements prerequisite to foreclosure in Georgia

Code O.C.G.A. § 23-2-114. Such entities foreclose and advertise for foreclosure

and take steps toward foreclosure, through their Attorneys, Counsels, document

preparers, servicers, agents and employees, without having first obtained proper

and legally valid assignments of the mortgages and the power of sale on property

they purport to foreclose.

Hundreds, if not thousands, of foreclosures are plainly void under statute and

Georgia Case law and voidable under Federal Laws.

Plaintiffs seek relief on their own behalf, and on behalf of all Georgia

Property owners similarly situated, from the named Defendants jointly and

severally, who routinely conduct and maintain wrongful foreclosure practices and
 Case 1:10-cv-03732-CAP -AJB Document 17-1 Filed 01/10/11 Page 4 of 22

procedures, damages against entities who initiated wrongful foreclosure procedures

and declaratory relief and injunctive relief conducted by entities who do not hold

the Power of Sale nor the instrument upon which the proof of debt is based and

injunction of eviction action pending procedures to verify the validity of

underlying sales, injunction of upcoming sales where there is no proof of a valid

assignment, and a cancellation of fees and costs related to invalid sales,

assessments, processing and penalties, damages as required by law and a Jury

Trial of 12 Jurors.

FACTS OF PLAINTIFF WENDY JENKINS

Plaintiff Wendy Jenkins is a married woman who owns a home and on or

about July 3, 2008 she refinanced her property located at7372 Cedar Creek Loop,

Columbus, GA. 31904. Plaintiff Jenkins executed a Note and Security Deed in

favor of Taylor Bean and Whitaker who later abruptly closed its doors on August

5, 2009.

Plaintiff Jenkins made payments to Taylor Bean and Whittaker, BAC Home

Loan Servicing, Bank of America and Does, and their alleged predecessor(s). ,

who repeatedly and willfully acted fraudulently in that they improperly added fees

to the balance of the loan, improperly credited and or misapplied payments to the

principal balance of the note and refused to provide documentation or legal

justification for the debt, the fees or the irregular amortization of the principal in
 Case 1:10-cv-03732-CAP -AJB Document 17-1 Filed 01/10/11 Page 5 of 22

violation of the laws of the State of Georgia and Federal Laws. In addition, they

refused payment and repeatedly returned Plaintiff’s attempts to tender payment.

Plaintiff Jenkins’ Note and Security Deed were bifurcated and the deed

alone was separated from the note and her note has been pledged, hypothecated

and /or assigned as collateral security to an unknown entity, foreign trust or to an

agency of the United States government or the Federal Reserve.

Plaintiff Jenkins was notified by Defendant McCalla Raymer with letters

that Plaintiff’s home was to be foreclosed upon by persons who they knew or

should have known had no legal rights to plaintiff’s home. Further, false and

fraudulent representations were made by Defendant McCalla Raymer as to the

ownership of plaintiff’s note and Security Deed.

Defendants McCalla Raymer LLC., and its’ attorneys violated Georgia Law;

specifically O.C.G.A. §44-14-162.2, O.C.G.A. §44-14-162(b) and O.C.G.A. §2-

6A-2 (6).

Defendants McCalla Raymer LLC., Thomas A. Sears, Esq., Charles Troy

Crouse, Esq. and other named Defendants, in an attempt to conceal and cover-up

the deficiencies in their attempted foreclosure where defendants had not complied

with the statutes as required by the Georgia Code, created documents and caused

purported assignments (Plaintiff’s Exhibit “C”), containing false and fraudulent

information from MERS to BAC to be recorded upon the Public Records of

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Muscogee County on April 14, 2010.

When challenged in the Superior Court of Muscogee County, Defendants

McCalla Raymer LLC., Thomas A. Sears, Esq., and Charles Troy Crouse, Esq ,

after entering default and then attempting to “open default” Defendants McCalla,

Crouse and Sears submitted as part of their pleadings, a verified answer, inter

alia, which presented documents which purport to be multiple “Agreement for

Signing Authority” and “Corporate Resolution” contracts by and between McCalla

Raymer, MERS, BAC, and Countrywide (which was bought and absorbed by Bank

of America in 2008), these documents were dated April 21, 2010 and April 26,

2010. Nothing in these documents granted Defendants McCalla, Crouse and Sears

the power or authority to execute an Assignment of the Deed, the Note and the

attendant Power of Sale on February 2, 2010. There is no document, in evidence

that grants any power or authority related to this property, to Defendants McCalla,

Crouse and Sears on February 2, 2010.

Defendants McCalla acting as an agent for, or representing Defendants BAC

Home Loans Servicing and Defendants Bank of America, attempted to wrongfully

foreclose upon Plaintiff’s home using this purported assignment, and scheduled a

Sale Under Power for May 5, 2010.

FACTS OF PLAINTIFF ELANOR SPRATLIN CRAWFORD

On or about August 11, 1997, Plaintiff Crawford executed a Note and

 Case 1:10-cv-03732-CAP -AJB Document 17-1 Filed 01/10/11 Page 7 of 22

Security Deed, in favor of NationsBank due to a refinancing of the subject

Property. At some time unbeknownst to Plaintiff Crawford, ASC acquired the

servicing rights to the subject loan and began servicing the loan.

Plaintiff Crawford admits that she was in arrears in regards to four

months of mortgage payments in May of 2009. This was due to having

suffered four (4) deaths within four months within her immediate family.

She fell behind because of contributing to funeral and burial costs for her

deceased family members which included her husbands’ mother.

Plaintiff Crawford, being mindful of her obligations called ASC and

obtained an amount to “cure” her default. She was told that she had to make

a payment of Sixty Two Hundred dollars ($6200.00), which she was willing

and able to pay immediately. When she attempted to make that payment to

ASC, she was told that she had call McCalla Raymer and/ or Prommis

Solutions. Plaintiff Crawford contacted McCalla Raymer in order to cure her

default and was told to contact Prommis Solutions. Upon contacting

Prommis Solutions, Plaintiff Crawford was given an inflated amount of over

double the previously quoted amount. When she questioned the amount, she

was told that it was due to “fees and costs associated with your foreclosure.”

These fees are inflated and improper under FDCPA 15 U.S.C. §1692K et seq..
 Case 1:10-cv-03732-CAP -AJB Document 17-1 Filed 01/10/11 Page 8 of 22

On or about June 23, 2009, Defendants caused an alleged Assignment of

the Security Deed and Note securing the subject property to be recorded upon

the land records of Cobb County, Georgia. This alleged Assignment is

defective upon its face as the person who purported to have notarized it,

Defendant Crystal Wilder, had not been given a commission as a Notary

Public on the date the “assignment” purports to have been executed, February

2, 2009. Ms. Wilder was not given a Notary commission until May 15, 2009

according the Georgia Superior Court Clerks’ Cooperative Authority’s

website, which is searchable under the tab “Notary Index”. (See “Exhibit A”

attached hereunto)

This alleged Assignment violates various Georgia statutes, among them,

specifically; O.C.G.A. 44-14-61, O.C.G.A. § 44-14-33, O.C.G.A. 44-5-64, and

O.C.G.A. § 23-2-114. Additionally, this alleged assignment violates O.C.G.A. §

45-17-5, which specifically states, in clear and unambiguous language:

“It is unlawful for any person to hold himself or herself out as a notary

public or to exercise the powers of a notary public unless such person has an

unexpired commission as a notary public.”

Defendants Crouse and Sears’ alleged signatures appear upon the face of this

document.
 Case 1:10-cv-03732-CAP -AJB Document 17-1 Filed 01/10/11 Page 9 of 22

Defendants McCalla acting as an agent for, or representing Defendant Wells

Fargo, attempted to wrongfully foreclose upon Plaintiff’s home using this

purported assignment, and scheduled a Sale Under Power for July 7, 2009.

On or about July 1, 2009, Plaintiff Spratlin obtained a Temporary Restraining

Order, after paying into the Court’s registry the sum of $17, 485.84. On

September 24, 2010, Defendants Wells, and McCalla Raymer sought to have the

Temporary Restraining Order dissolved. Defendants were successful at getting the

Temporary Restraining Order dissolved, at some time subsequent to that date, the

Court released the monies ($17,484.84) to the Defendants.

On or about October 19, 2010, Defendants Prommis Solutions caused to

be recorded upon the land records of Cobb County, Georgia, in Deed Book

14806 Page 172 another alleged “assignment” of Plaintiff Crawford’s Security

Deed and Note, allegedly executed on October 15, 2010, which Defendants

Sears and Crouse also allegedly signed. This document was labeled

“Amended Assignment”, but in fact amends nothing. The sole change, other

than the dates involved, was that, this time, an actual notary, with a valid

notary commission, stamped and signed the document.

FACTS OF PLAINTIFFS’ COMPLAINT

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Defendants’ assertions of a “shotgun pleading” notwithstanding, Plaintiffs

have made their case in a manner which is clear as to which claims apply to

Defendants McCalla, Defendant Sears and Defendant Crouse. Although

Defendants claim that Plaintiffs are being “intentionally vague” is entirely

incorrect. Plaintiffs have clearly alleged that all named Defendants were “joint

venturers” and sought merely to clarify that any action taken in furtherance of such

joint venture was not necessarily committed by each and every defendant

individually. For example, Defendant’s Sear’s and Crouse’s alleged signatures

appear on each of the assignments for both plaintiffs but the fraudulent

notarization of the “assignment” for Plaintiff Jenkins was executed by Defendant

Victoria Marie Allen and the fraudulent and purported notarization for Plaintiff

Crawford’s “assignment” was Crystal Wilder. Clearly, Defendant Allen and

Defendant are each responsible for their own actions and Plaintiffs would not want

to tar one with the other’s actions and wish to define such actions even though such

actions are in furtherance of a unlawful or illegal joint fraudulent venture.

Defendants insist that they have complied with all prerequisites to a non-

judicial foreclosure all the while ignoring that their own documents do not support

their arguments that “MERS”, “BAC Servicing” and “ASC” followed all of the

requirements set forth in O.C.G.A. § 44-14-164 for the transferring of secured

instruments”. Specifically, Plaintiff Jenkins’ “assignment” contains a latent defect,

 Case 1:10-cv-03732-CAP -AJB Document 17-1 Filed 01/10/11 Page 11 of 22

which is that Defendants McCalla, Defendant Sear and Defendant Crouse had no

right or authority on February 2, 2010 to transfer anything from “MERS” to

anyone. And, specifically, Plaintiff Crawford’s “assignment”, dated April 4, 2009,

contains a patent defect because it is easily determined that the “notary” stamp

bearing the phrase “my commission expires on May 14, 2013” clearly

demonstrates that the notary was acting outside the four year term of a valid notary

commission. Clearly this document does not comply with the requirements of

O.C.G.A. § 44-14-64 which clearly states:

(a) All transfers of deeds to secure debt shall be in writing; shall be signed by the grantee or, if

the deed has been previously transferred, by the last transferee; and shall be witnessed as

required for deeds.

While defendants go to great pains to make a point that possession of the “original note” is not a

prerequisite to non-judicial foreclosure in Georgia, they completely ignore the fact that without a

valid assignment of the Security Deed, and the Note, neither the Deed nor the Note is transferred,

standing is not conferred and ultimately, any attempt to foreclosure the subject properties is

fraudulent.

Defendants then claim that Plaintiffs claims for wrongful foreclosure are “unsupportable”

under Georgia law, but they ignore Weiblen v. Leeds Building Products, Inc., 219 Ga. App. 349,

464 S.E.2d 907 (1995) which specifically states:

“Furthermore, contrary to Leeds' arguments, it is not necessary that the

foreclosure be completed to bring an action for wrongful foreclosure. The fact

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that Leeds initiated foreclosure proceedings by advertising the properties for sale

is sufficient to support a claim for wrongful foreclosure.”

In the instant case, both Plaintiff Jenkins’ and Plaintiff Crawford’s properties have

been advertised for sale. Plaintiff Jenkins’s property was advertised in the

Muscogee County Columbus Ledger-Enquirer, which is a general circulation

newspaper and the county’s legal organ. Plaintiff Crawford’s property was

advertised in the Marietta Daily Journal, which is a general circulation newspaper

and the county’s legal organ.

Defendants further contend that there have been no allegations of fraud

within the complaint going so far as to claim the “only allegations” to support

Plaintiffs claim of fraud are questions about the signatures of Defendants Sears and

Crouse. Their erroneous contentions notwithstanding, Plaintiffs show that there

have been allegations of fraud, specifically averring that Defendants McCalla

deliberately manufactured documents which purport to give Defendants Sears and

Crouse authority to sign as Officers of “MERS” and/or the banks named as

Defendants thereby falsely representing themselves to have held the authority to

assign Plaintiff Jenkins’ Security Deed and Note. Additionally, Plaintiffs have laid

out, with particularity, the fraudulent conduct in regards to Plaintiff Crawford’s

“assignment”.
 Case 1:10-cv-03732-CAP -AJB Document 17-1 Filed 01/10/11 Page 13 of 22

Each element of the of fraud have been addressed in the Original Complaint,

as to the element of a false representation, the act of “assigning” Plaintiff Jenkins’

property without the authority to do so is a false and fraudulent misrepresentation

of Defendant Sears’ and Defendant Crouse’s ability to act for “ MERS”.

Defendants McCalla’s subsequent actions in pursuing a wrongful foreclosure are a

continuation of that false misrepresentation. It is axiomatic that Defendant Sears,

Defendant Crouse and Defendant McCalla would have to know or should have

known when they entered into a contract with “MERS”, “BAC Servicing”, Bank of

America or any other entity after examining the title that the documents they were

executing in furtherance of foreclosure were without authority, false and

fraudulent. Defendant Sears and Defendant Crouse’s fraudulent and false

misrepresentation were intended to deprive Plaintiff Jenkins of her property and

induce her into relying upon their authority as agents of the holder of her note to

assign her property as Defendant Sears and Defendant Crouse signed as either

“Vice President” or “Assistant Secretary” of MERS. In regards to Plaintiff

Crawford, the presence of a notary stamp gives the appearance of legality of the

assignment even though the alleged notary was not commissioned. Falsely

representing that the document was properly executed, thereby depriving the

Plaintiff Crawford, the court in a non-judicial foreclosure due process of law.

Further, causing false and fraudulent and fictitious representation in the public
 Case 1:10-cv-03732-CAP -AJB Document 17-1 Filed 01/10/11 Page 14 of 22

record of the Clerk of the Superior Court that the property had been properly

conveyed. Outside of the artifice set up by MERS that “certifying officers” are

indeed “Vice Presidents” or “Assistant Secretaries”, it is commonly accepted that

anyone bearing those titles are indeed Officers of the corporation they represent

and as such the General Public relies upon those titles to confer authority to

exercise the correct authority to act on the behalf of the corporation they hold

themselves out to represent. Such misrepresentation would lull the ordinary

public, and the plaintiffs, into believing that their property had indeed been

properly conveyed and thus refrain from acting because of their reliance upon the

fraudulent documents. Plaintiffs have been damaged due to having been subjected

to wrongful foreclosure of their properties.

Defendants are plainly wrong in that they have not collected any fees.

Disbursement of $17,485.84 has been made from the Cobb County Court’s

registry.

Defendants also claim that FDCPA does not apply to them in that they are a

law firm seeking to foreclose a mortgage. Again, they ignore the fraudulent basis

for their claims of standing. Even a non-judicial foreclosure state requires that the

secured creditor be the one who forecloses upon property. In the case where an

actual secured creditor is foreclosing upon its own loan, there can be no argument

that mortgage foreclosure distinct and different from a collection of other sorts of
 Case 1:10-cv-03732-CAP -AJB Document 17-1 Filed 01/10/11 Page 15 of 22

debt. Here, however, neither of the Banks are the actual secured creditor by virtue

of not having been the original lender, and not having a valid assignment to rely

upon to create such standing. Defendants argue that because they are a law firm

seeking foreclosure of property they are exempt from FDCPA, but ignore Heintz,

et. al. v. Jenkins, 514 U.S. 291, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995) which

held that law firms were “debt collectors” and also ignore the recent ruling of the

Supreme Court in Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, L.P.A.

129 S. Ct. 2863 - Supreme Court (2010) which held that law firms are liable under

FDCPA even for “unintentional errors”. In the instant case, there have been no

“unintentional errors” but rather a violation of 15 U.S.C. § 1692f § 807et seq

which states in pertinent part:

“A debt collector may not use any false, deceptive, or misleading representation

or means in connection with the collection of any debt.”

It is axiomatic that holding oneself out to have standing to foreclose without

possessing such standing is a misleading representation. Since Defendant McCalla

sent the notices of Sale under Power and placed the newspaper publications, they

are just as culpable as Defendant Sears, and Defendant Crouse in engaging in these

misleading representations.
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Defendants allege that all remaining claims are predicate upon the claims

addressed supra, Plaintiffs have shown that Defendants arguments are unavailing

but will briefly address the remaining claims.

RICO Claims- Section 1962(c) of the RICO Act makes it "unlawful for any

person employed by or associated with any enterprise engaged in ... interstate ...

commerce, to conduct or participate, directly or indirectly, in the conduct of such

enterprise's affairs through a pattern of racketeering activity." Subsection (d)

criminalizes a conspiracy to violate one of the other subsections of § 1962. Section

1964(c) allows a private party, who has been injured in his property from a RICO

violation, to sue for damages. To state a RICO claim, the Plaintiffs must show "(1)

conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity."

Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496, 105 S.Ct. 3275, 87

L.Ed.2d 346 (1985) (footnote omitted). In the instant case, Plaintiffs have shown

in their “Plaintiffs’ Response To Defendants’ Opposition To Motion For Extension

Of Time And Motion To Dismiss” that there is a pattern of racketeering activities

due to the filing of at least 15 (fifteen) similar fraudulent assignments in Deed

Book 14703 of the Cobb County Land Records, furthermore, in the case of those

15 (fifteen) fraudulent assignments, 7 (seven) of them have been foreclosed and

have had Deeds of Foreclosure issued by Defendants McCalla and sometimes

signed by Defendants Crouse and Sears.

 Case 1:10-cv-03732-CAP -AJB Document 17-1 Filed 01/10/11 Page 17 of 22

Wire fraud - When pled as RICO predicate acts, mail and wire fraud require

a showing of: (1) a plan or scheme to defraud, (2) intent to defraud, (3) reasonable

foreseeability that the mail or wires will be used, and (4) actual use of the mail or

wires to further the scheme. See Murr Plumbing, Inc. v. Scherer Bros. Fin. Servs.

Co., 48 F.3d 1066, 1069 & n. 6 (8th Cir.1995) (noting that a RICO claim does not

require proof of misrepresentation of fact). In the instant case, there is abundant

“foreseeabilty” that mail and wires are used in the furtherance of this fraud.

Civil conspiracy - as discussed supra, there is abundant evidence that

multiple actual tort violations have been committed upon the Plaintiffs and the

class they seek to represent, which will be supported more fully during discovery.

Punitive damages – as the case is in its infancy, dismissal of these claims is

premature. O.C.G.A. § 51-12-5.1 (b) states in pertinent part:

Punitive damages may be awarded only in such tort actions in which it is proven

by clear and convincing evidence”

In the instant case, nothing has been “proven” as to the class, since there has been

no certification of class status as of yet.

In conclusion, Defendants seek dismissal of themselves due to a variety of

unavailing reasons, among them that they are acting as agents for their “lender

clients”. Although they are acting as agents of their “lender clients” O.C.G.A. §

10-6-85 explicitly provides:

 Case 1:10-cv-03732-CAP -AJB Document 17-1 Filed 01/10/11 Page 18 of 22

“All agents, by an express undertaking to that effect, may render themselves

individually liable. Every agent exceeding the scope of his authority shall be

individually liable to the person with whom he deals; so, also, for his own

tortious act, whether acting by command of his principal or not, he shall be

responsible; for the negligence of his underservant, employed by him in behalf of

his principal, he shall not be responsible.”

Additionally, in Miller & Miller v. Wilson, the Georgia Supreme Court held:

“Whoever meddles with another's property, whether as principal or agent, does

so at his peril, and it makes no difference that in doing so he acts in good faith,

nor, in the case of an agent, that he delivers the property to his principal before

receiving notice of the claim of the owner.”

In the instant case, Defendants McCalla, Sears and Crouse are all responsible for

their own actions, which include manufacturing documents which purport to

“transfer” Security Deeds and Note on Real Property without having the authority

to do so and without complying with the requirements that deed be properly

attested. Defendants take the posture that these are mere “technical” defects when

in fact, these “technical defects” have impacted hundreds, if not thousands, of

Georgia’s most precious asset, its’ citizens.

 Case 1:10-cv-03732-CAP -AJB Document 17-1 Filed 01/10/11 Page 19 of 22

Wherefore, Plaintiffs respectfully request that Defendant’s Motion to

Dismiss be denied. Further, Plaintiff contends that the Defendant’s Motion to

Dismiss is Premature before Discovery.

This 10th day January, 2011.

/s/ Louise T. Hornsby

Louise T. Hornsby
Georgia Bar No. 367800
Attorney for Plaintiffs

2016 Sandtown Road, SW

Atlanta, GA 30311
(404) 752-5082
 Case 1:10-cv-03732-CAP -AJB Document 17-1 Filed 01/10/11 Page 20 of 22

CERTIFICATE OF SERVICE

I hereby certify that I have electronically filed the Plaintiffs’ Response To

Defendant’s Motion To Dismiss with the Clerk of Court using the CM/ECF system
which will automatically send email notification of such filing to the following
attorney of record:

John H. Williamson, Esq.

John P. MacNaughton, Esq.
Counsel for Great Hill Partners, Inc., Prommis Solutions, LLC, Prommis
Solutions Holding, Inc. Crystal Wilder, Elizabeth Lofaro, Chiquita raglan, Iris
Gisella Bey and Latasha Daniel

Linda S. Finley, Esq.

Ed Novotny, Esq.
Counsel for Wells Fargo Bank, N.A.

Allen C. Myers, Esq.

Counsel for Bank of American, NA, BAC Home Loan

T. Ryan Mock, Jr., Esq.

William M. Davis, Esq.
Counsel for McCalla Raymer, LLC, Thomas A. Sears and Charles Troy Crouse

Reese Willis, Esq.

Lisa K. Rose, Esq.
J. Thomas Howell, Esq.
Steven Flynt, Esq.
Counsel for McCalla Raymer, LLC, Thomas A. Sears and Charles Troy Crouse

And the same by placing a copy in the U.S. Mail with the proper postage
affixed to the following:

Mortgage Electronic Registration Systems, Inc.

c/o Legal Department
1818 Library St., Suite 300
Reston, VA 20190
MERSCORP, Inc.
c/o Legal Department
 Case 1:10-cv-03732-CAP -AJB Document 17-1 Filed 01/10/11 Page 21 of 22

1595 Spring Hill Road

Suite 310
Vienna, VA 22182

This 10th day of January, 2011.

s/Louise T. Hornsby
Louise T. Hornsby, Esq.
Counsel for Plaintiffs
Georgia Bar No. 367800
HORNSBY & ASSOCIATES
2016 Sandtown Road
Atlanta, Georgia 30311
(404) 752-5082
(404) 758-5337 fax
 Case 1:10-cv-03732-CAP -AJB Document 17-1 Filed 01/10/11 Page 22 of 22

CERTIFICATE OF COMPLIANCE

This is to certify that this document was prepared in Times Roman, 14 point

font that complies with this Court’s Rules.

s/Louise T. Hornsby
Louise T. Hornsby, Esq.
Counsel for Plaintiffs
Georgia Bar No. 367800
HORNSBY & ASSOCIATES
2016 Sandtown Road
Atlanta, Georgia 30311
(404) 752-5082
(404) 758-5337 fax