STATE OF GEORGIA

COBB COUNTY SUPERIOR COURT

CASE NO.:
REGINALD IBEH and VITA )
IBEH, )
)
Plaintiffs, )
)
vs. )
)
DHI MORTGAGE COMPANY, )
LTD.; MORTGAGE ELECTRONIC )
REGISTRATION SYSTEMS, INC.; )
BANK OF AMERICA, NA; BAC )
HOME LOANS SERVICING, LP; )
F/K/A COUNTRYWIDE HOME )
LOANS SERVICING, LP; THE )
BANK OF NEW YORK MELLON )
F/K/A THE BANK OF NEW YORK )
AS TRUSTEE FOR THE )
CERTIFICATEHOLDERS CWALT, )
INC., ALTERNATIVE LOAN TRUST ) VERIFIED COMPLAINT
2005-57CB MORTGAGE PASS- )
THROUGH CERTIFICATES, )
SERIES 2005-57CB, )
)
Defendants. )
______________________________)

Plaintiffs Reginald Ibeh and Vita Ibeh, Pro Se, sue Defendants and allege

as follows:

I. PARTIES

1.

Plaintiffs REGINALD IBEH and VITA IBEH are natural persons over the age of

eighteen (18) residing in Powder Springs, Cobb County, Georgia and are

otherwise sui juris and subject to the jurisdiction of this Court.

2.

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Defendant DHI MORTGAGE COMPANY, LTD (hereinafter DHI), is, upon

information and belief, a limited partnership engaged in the business of

mortgage lending and doing business in the State of Georgia and is subject to

the jurisdiction of this Court.

3.

Defendant Mortgage Electronic Registration Systems, Inc. (hereinafter MERS),

is, upon Information and belief, a corporation organized and existing under the

laws of the State of Delaware, doing business in the State of Georgia and is

subject to the jurisdiction of this Court.

Defendant Bank of America, N.A. is a Banking National Association engaged in

the business of banking and mortgage lending doing business in the State of

Georgia and is subject to the jurisdiction of this Court.

5.
Defendant BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans

Servicing, LP is, upon information and belief, a limited partnership doing

business in the State of Georgia and is subject to the jurisdiction of this Court.

6.

Defendant The Bank of New York Mellon f/k/a The Bank of New York as

Trustee for the Certificateholders CWALT, Inc. (hereinafter NY Mellon Trustee)

Alternative Loan Trust 2005-57CB Mortgage Pass-Through Certificates, Series

2005-57CB, is a Banking Corporation doing business in the State of Georgia

and is subject to the jurisdiction of this Court.

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 II.JURISDICTION AND VENUE

7.

The property which is the subject matter of this action is located in Powder

Springs, Cobb County, Georgia identified as 2995 Robinson Forest Road,

Powder Springs, Georgia 30127. Jurisdiction and venue are appropriate in this

Court as the subject property is located in Cobb County, Georgia, Plaintiffs

reside in Cobb County, Georgia and the subject transaction occurred in Cobb

County, Georgia.

8.

All acts complained of occurred in Cobb County, Georgia.

COUNT I--FRAUD

9.
Plaintiffs re-allege the allegations contained in paragraph 1-8 above and

Incorporate same by reference into this Count.

10.

On or about August 18, 2005 Plaintiffs and Defendants DHI and MERS

engaged in a real estate closing transaction concerning the subject property

where Plaintiffs were named as Borrowers, and Defendant DHI Mortgage

Company, LTD was named as Lender and Defendant MERS was named

grantee under the Security instrument.

11.

Said transaction was fraudulent, and plaintiffs were defrauded in the following

respects, set forth below.

12.

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Defendants DHI and MERS, the only parties listed as secured parties in the

original paperwork at closing, never disclosed to Plaintiffs that their promissory

Note and Mortgage had been pre-sold and that Defendants had been paid in full

for the amount of the Note plus a fee to stand in for undisclosed third parties,

and that DHI and MERS had been paid either before or contemporaneously

with the closing.

13.

Defendants DHI and MERS never disclosed that they had not loaned their own

funds to fund the fraudulent transaction and that they had used the Plaintiff’s

Promissory Note to generate or create the funds to fund the transaction, and

in turn used Plaintiff’s promissory note to leverage additional loans and

investments for which Defendants DHI and MERS realized substantial profit.

14.

The amount of profit from the use of Plaintiff’s promissory Note, used without

Plaintiffs knowledge or consent, was never disclosed by Defendants to Plaintiffs

15.

Defendants DHI and MERS never disclosed the true identity of the true owner

and holder of the Note and Mortgage.

16.

Defendants DHI and MERS had Plaintiffs execute the Note, Mortgage and other

closing documents under false pretenses, never disclosing to Plaintiffs that

Defendants had been paid and would use Plaintiffs executed note to generate

additional profit for Defendants without any disclosure whatsoever to Plaintiffs.

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 17.

Defendant Trust entity, The Bank of New York Mellon f/k/a The Bank of New

York as Trustee for the Certificateholders CWALT, Inc. Alternative Loan Trust

2005-57CB Mortgage Pass-Through Certificates, Series 2005-57CB, also

as a Special Purpose Vehicle (SPV) and/or as a Real Estate Mortgage

Investment Conduit (REMIC) became an alleged successor in interest to the

originator, Defendants issued securities collateralized by the mortgage

under a master pooling and servicing agreement by which all legal and

equitable interest was transferred to the certificate holders. This entire process,

known as the securitization process, was never disclosed to Plaintiffs at any

time before, during or after the closing of the fraudulent transaction. All named

Defendants participated in the securitization scheme and profited therefrom.

18.

Because the note and mortgage were securitized, as set forth above,

securitization created restrictions upon modification of the mortgage which had

not been approved by the mortgagors, Plaintiffs herein. Securitization also

converted the mortgage note from an alienable, transferable instrument which

was and could be sold into an instrument which cannot be sold, transferred or

alienated without amending the terms and conditions of the mortgage. None of

these changes or restrictions were ever disclosed to Plaintiffs at any time

before, during or after the fraudulent transaction.

19.

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By securitizing Plaintiffs Note and Mortgage without Plaintiffs knowledge and

consent, Defendants defrauded Plaintiffs.

20.

The aforementioned actions by Defendants were done willfully, wantonly,

intentionally and without regard for the truth and without disclosure to Plaintiffs.

Had the true facts been disclosed to Plaintiffs, Plaintiffs would not have entered

into the fraudulent transaction.

21.

As a direct and proximate result of Defendants actions, Plaintiffs have been

damaged financially.

WHEREFORE, Plaintiffs demand judgment against Defendants for actual,

compensatory, consequential and exemplary damages, cost of this action and

such other and further relief as the Court deems equitable, appropriate and just.

COUNT II-WRONGFUL INSTITUTION OF NON-JUDICIAL FORECLOSURE

22.

Plaintiffs re-allege the allegations contained in paragraphs 1-22 above and

Incorporate same by reference into this Count.

23.

On or about January 13, 2010, Defendant The Bank of New York Mellon as

Trustee, by and through their attorneys, Shuping, Morse & Ross, LLP

commenced a non-judicial foreclosure proceeding pursuant to Georgia law by

causing to have advertised a Notice of Sale Under Power.

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 24.

O.C.G.A. Section 44-14-162.2 requires that the notice of sale under power be

sent to the debtor by the “secured creditor”.

25.

The Bank of New York Mellon as Trustee is not a “secured creditor” within the

meaning of the statute. The secured creditors holding a security interest as set

forth on the closing documents were Defendant DHI and MERS. The Bank of

New York Mellon as Trustee was not listed in any of the closing documents and

has never produced to Plaintiffs any documents or documentation establishing

that The Bank of New York Mellon as Trustee holds a security interest in the

subject property by way of a duly authorized transfer or assignment of the

security interest created at closing through any recorded instrument or

instruments.
26.

Because The Bank of New York Mellon as Trustee did not hold the original

promissory note and was not the grantee under the Security Deed when non-

judicial foreclosure proceedings were instituted and the Notice of Sale Under

Power sent, the prerequisites to a non-judicial sale of the subject property were

not complied with, making the institution of this non-judicial foreclosure

proceeding wrongful.

27.

As a direct and proximate result of the actions of Defendant The Bank of New

York Mellon as Trustee, Plaintiffs have been damaged.

WHEREFORE, Plaintiffs demand judgment against Defendants for the

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wrongful institution of non-judicial foreclosure proceedings, costs of this action,

and such other and further relief as the Court deems equitable, appropriate and

just.
COUNT III-UNJUST ENRICHMENT

28.

Plaintiffs re-allege the allegations contained in paragraphs 1-27 and incorporate

same by reference into this Count.

29.

Defendants, by engaging in fraudulent conduct have been unjustly enriched at

Plaintiff’s expense.

30.

Defendants, by using Plaintiffs promissory note with Plaintiffs knowledge and

consent and by leveraging Plaintiffs note to create additional funds, loans and

investments and to realize a substantial profit, and without disclosing the true

facts to Plaintiffs, have been unjustly enriched.

31.

Defendants, by fraudulently inducing Plaintiffs into executing the subject

promissory note and other loan documents by failing to disclose all of the

relevant facts, have unjustly enriched themselves at Plaintiffs expense.

32.

As a direct and proximate result of Defendants actions, Plaintiffs have been

damaged.
33.

WHEREFORE, Plaintiffs demand judgment against Defendants for

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Actual, compensatory, consequential and exemplary damages, costs of this

action, and such other and further relief as the Court deems equitable,

appropriate and just.

COUNT IV-RESCISSION

34.

Plaintiffs re-allege the allegations of paragraphs 1-33 and incorporate same by

reference into this Count.

35.

By defrauding Plaintiffs into going forward with the fraudulent real estate

transaction as more fully set forth in paragraphs 10-20 above, Defendants are

liable for non-disclosure, fraud, false pretenses and misrepresentation against

Plaintiffs.
36.

Due to the fraudulent real estate transaction, Plaintiffs are entitled to rescission

of the transaction and to be placed back into the position they occupied prior to

the transaction occurring.

37.

Plaintiffs obligation to tender, if any, the loan proceeds is conditioned upon the

Defendant fully performing upon rescission of the loan transaction by returning

to Plaintiffs all monies paid by Plaintiffs, including but not limited to, the Plaintiffs

down payment, all closing costs, fees paid to third parties, and all interest paid

on the subject loan transaction from the date of closing to the present.

38.

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As a direct and proximate result of Defendants actions, Plaintiffs are entitled to

rescind the subject fraudulent transaction.

WHEREFORE, Plaintiffs demand judgment against Defendants for

rescission of the subject transaction and pray that this Honorable Court grant

such other and further relief as the Court deems equitable, appropriate and just.

COUNT V—DECLARATORY RELIEF

39.

Plaintiff re-alleges the allegations contained in paragraphs 1-38 and

incorporates same by reference into this Count.

40.

This is an action for declaratory relief which is being brought pursuant to

O.G.C.A. sec. 9-4-2 and sec. 9-11-118 to declare Defendants to have no legal

right in the subject Note and Security Deed for purposes of foreclosure due to

Defendants fraud, wrongful institution of non-judicial foreclosure proceedings,

unjust enrichment, rescission of the transaction by Plaintiffs, all of which is set

forth with more particularity in the foregoing Counts I-IV of this Complaint.

41.

O.C.G.A. sec. 9-4-2(a) provides that the superior courts shall have the power,

upon appropriate pleading, to declare rights and other legal relations of any

interested party petitioning for such declaration, whether or not further relief is
or

could be prayed, and that the declaration shall have the force and effect of a

final judgment.

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 42.

O.C.G.A. sec. 9-4-2(c) provides that relief by declaratory judgment shall be

available notwithstanding the fact that the complaining party has any other

adequate legal or equitable remedies.

43.

As set forth above, the evidence of the record demonstrates that Defendants

have committed fraud, wrongfully instituted non-judicial foreclosure

proceedings, unjustly enriched themselves and that the transaction

should be rescinded and that Plaintiff is entitled to declaratory relief.

44.

The declaration by this Court that the Defendant does not have the right to

institute and maintain the foreclosure sale due to its violation of the law is a

proper subject matter for declaratory relief.

WHEREFORE, Plaintiff respectfully prays that this Honorable Court adjudge

that Defendants do not have the right to institute and maintain the foreclosure

sale of the subject Property due to Defendants fraud, wrongful institution of non-

judicial foreclosure proceedings, unjust enrichment, and that the transaction

should be rescinded and that the Court should declare the respective rights and

obligations of the parties, and that Plaintiffs recover costs of this action, and

grant such other and further relief as the Court deems equitable, appropriate

and just.

DEMAND FOR JURY TRIAL

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Plaintiffs demand trial by jury on all issues so triable by law.

VERIFICATION

The undersigned Plaintiff verify, under oath, that the foregoing factual

allegations in this Verified Complaint are true and correct.

___________________________
Reginald Ibeh
Plaintiff, Pro Se

___________________________
Vita Ibeh
Plaintiff, Pro Se

STATE OF GEORGIA )
:ss
COUNTY OF COBB )

BEFORE ME, THE UNDERSIGNED AUTHORITY, personally appeared

Reginald Ibeh and Vita Ibeh, who are either personally known to me or who

have produced__________________________ (type of identification) and who,

after being duly sworn, verified that the factual allegations in the foregoing

Verified Complaint are true and correct and who placed her hand and signature

above this ____day of February, 2010.

____________________
Notary Public
In and for the State of Georgia

My commission expires:

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 CERTIFICATION

THE UNDERSIGNED HEREBY CERTIFIES that the undersigned, prior to the

filing of this Verified Complaint, gave written notice by fax to Shuping, Morse &

Ross, LLP, Attorneys for Defendant The Bank of New York Mellon f/k/a The

Bank of New York as Trustee for the Certificateholders CWALT, Inc. Alternative

Loan Trust 2005-57CB Mortgage Pass-Through Certificates, Series 2005-57CB

by Facsimile at (770) 994-7908 and further requested, by phone at (770) 991-

0000 that said Defendant’s attorney stipulate and agree to a postponement of

the foreclosure sale pending for March 2, 2010 and that no response to said

written notice by facsimile or spoken request for a postponement of the

foreclosure sale has been received through the date of this Certification.

SO CERTIFIED BY PLAINTIFFS REGINALD IBEH AND VITA IBEH this

of February, 2010.

Respectfully submitted,
_____________________________
Reginald Ibeh, Plaintiff Pro Se
2995 Robinson Forest Road
Powder Springs, GA 30127
Phone:

_____________________________
Vita Ibeh, Plaintiff Pro Se
2995 Robinson Forest Road
Powder Springs, GA 30127
Phone:

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 STATE OF GEORGIA

COBB COUNTY SUPERIOR COURT

CASE NO.:
REGINALD IBEH and VITA )
IBEH, )
)
Plaintiffs, )
)
vs. )
)
DHI MORTGAGE COMPANY, )
LTD.; MORTGAGE ELECTRONIC )
REGISTRATION SYSTEMS, INC.; )
BANK OF AMERICA, NA; BAC )
HOME LOANS SERVICING, LP; )
F/K/A COUNTRYWIDE HOME )
LOANS SERVICING, LP; THE )
BANK OF NEW YORK MELLON )
F/K/A THE BANK OF NEW YORK )
AS TRUSTEE FOR THE )
CERTIFICATEHOLDERS CWALT, )
INC., ALTERNATIVE LOAN TRUST ) NOTICE OF LIS PENDENS
2005-57CB MORTGAGE PASS- )
THROUGH CERTIFICATES, )
SERIES 2005-57CB, )
)
Defendants. )
_____________________________ )

Notice is given that the above-entitled action will be filed in the above-entitled

Court on February _____, 2010 by Reginald Ibeh and Vita Ibeh, against DHI

Mortgage Company, LTD., Mortgage Electronic Registration Systems, Inc.,

Bank of America, N.A., BAC Home Loans Servicing LP f/k/a Countrywide Home

Loans Servicing, LP, The Bank of New York Mellon f/k/a The Bank of New York

as Trustee for the certificateholders CWALT, Inc., Alternative Loan Trust 2005-

14
57CB Mortgage Pass-Through Certificates, Series 2005-57CB. The action
affects title to the specific real property and the right to possession of specific

real property identified in the Complaint.

The specific real property affected by the action is located in Cobb County,

Georgia, and is described as follows:

All that tract or parcel of land lying and being in Land Lot 422
of the 19th District, 2nd Section, Cobb County, Georgia, Being
Lot 1 of Robinson Forest Subdivision as Per Plat Recorded in
Plat Book 233, Page 69, Cobb County Records, which Plat is
Incorporated herein by reference and made a part hereof, being
Improved property known as 2995 Robinson Forest Road,
According to the present system of numbering houses in Cobb
County, Georgia.

Dated February_____, 2010

_____________________________
Reginald Ibeh, Plaintiff Pro Se

_____________________________
Vita Ibeh, Plaintiff Pro Se

ACKNOWLEDGEMENT

Subscribed and sworn to before me this ____day of February, 2010.

_____________________________
Notary Public
In and for the State of Georgia

My Commission expires: (seal)

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