Zow et al v. Regions Financial Corporaiton et al

Filing 45

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 7/26/13. (cla, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JAMES ZOW, SR. and VERONICA ZOW,
Plaintiffs,
Civ. No. 12-571-LPS

v.
REGIONS FINANCIAL CORPORATION, et al.,
Defendants.

James Zow, Sr., and Veronica Zow, Savannah, Georgia, Pro Se Plaintiffs.
Thomas Michael Horan, Esquire, Womble Carlyle Sandridge Rice, Wilmington, Delaware.
Counsel for Defendants.

MEMORANDUM OPINION

July 26,2013
Wilmington, Delaware

-t~?/Js

STARK, U.S. District Judge:
I.

INTRODUCTION
Plaintiffs James Zow, Sr. ("1. Zow") and Veronica Zow ("V. Zow") (together

"Plaintiffs"), filed this civil action on May 4,2012. The Complaint (D.!. 3) alleges wrongful
foreclosure via the use of a purported negotiable instrument, and jurisdiction by reason of
diversity of the parties pursuant to 28 U.S.C. § 1332. It also alleges violations of the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692. Plaintiffs proceed pro se and have been granted
leave to proceed in forma pauperis. (D'!.5) On September 12,2012, the Court ordered the
parties to brief the issue of whether the United District Court for the Southern District of Georgia
is a more convenient venue for this matter.l (See D. I. 12) Presently before the Court are
Plaintiffs' and Defendants' briefs. (D.L25, 35) For the reasons discussed below, the Court will
order the action transferred to the United District Court for the Southern District of Georgia.

II.

BACKGROUND
In 1994, Plaintiffs purchased their home in Savannah, Georgia. On November 20,2008,

1. Zow executed an original promissory note secured by a security deed executed by both

Plaintiffs to Defendant Mortgage Electronic Registrations, Inc. ("MERS"), as nominee for
Regions Bank d/b/a Regions Mortgage ("Regions"). (See D.L3 at ~ 29; D.L 15 Exs. A, B, and C
at '114) Plaintiffs filed a verified complaint in the Superior Court of Chatham County, State of

lThe Third Circuit has not decided whether a district court may transfer venue under 28
U.S.C. § 1404(a) on its own motion. Courts within this Circuit have held that when no motion to
transfer to a more convenient venue has been filed, the Court may sua sponte transfer the case,
but only after first providing the parties with an opportunity to brief the transfer issue. See, e.g.,
Bancorp, 2012 WL 1133689 (D. Del. Mar. 30,2012); Bank Express Int'! v.
Johnson v.
Kang, 265 F.Supp.2d 497,507 n.12 (E.D. Pa. 2003).

us.

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Georgia stating that they both signed the security deed. (See D.l. 15 Ex. C at ~ 14) That
complaint states that V. Zow signed the security deed as a co-owner, not as a co-borrower. (See
id.) Defendants indicate that the proceeds of the loan were used to payoff and satisfy a first

mortgage on the real property and most of a second mortgage which was subordinated of record
upon the execution of a modification and deed of subordination. (ld. at Ex. D) On January 13,
2009, the loan was purchased by Fannie Mae as part of a pool of loans serviced by Regions as a
mortgage-backed securitized loan. (D.1. 3 Ex. 20) On June 10,2009, J. Zow sought special
forbearance, indicating a delinquency in mortgage payments that began in March 2009. (D.l. 10
Ex. E) As of September 1, 2010, MERS assigned all of its interests in the security deed to
Regions. (D.I. 3 Ex. 5) Defendants notified Plaintiffs on November 5,2010 of the intent to
proceed with a non-judicial foreclosure sale to take place on December 7, 2010. (Id. at ex. 6)
Plaintiffs filed the instant Complaint on May 4, 2012, followed by a Verified Motion for
Emergency Injunctive and Declaratory Relief and to Stay Foreclosure Sale or, in the Alternative,
Grant Verified Motion for Temporary Restraining Order. (D.I. 10) The Court denied the motion
on September 28,2012 (D.1. 16), Plaintiffs appealed (D.1. 18), and the appeal was dismissed
pursuant to Fed. R App. P. 42(b) (D.I. 23). The Court has been advised that on October 2,2012,
Plaintiffs filed a chapter 7 bankruptcy in the United States Bankruptcy Court for the Southern
District of Georgia. (D.!.21)
Subsequent to Plaintiffs' default, litigation among the parties ensued in the: (1) Superior
Court of Chatham County, State of Georgia, see Zow v. Regions Fin. Corp., Civ. No. 10-1883 FR
(voluntarily dismissed by Plaintiffs on May 3, 2012); (2) United States District Court for the
Southern District of Georgia, see Zow v. Regions Fin. Corp, Civ. No. 10-306-BAE-GRS

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(remanded to 10-1883 FR in State Court on February 16,2011, after Plaintiffs dismissed all
federal claims); (3) United States District Court for the Southern District of Georgia, see Regions

Bank v. Zow, Civ. No. 11-104-WTM-GRS (voluntarily dismissed without prejudice by
Defendants on July 10,2012); and (4) United States Bankruptcy Court for the Southern District
of Georgia, see In re Zow, Bk. No. 10-42639 (dismissed with prejudice by Court on December
27,2010 due to debtor's failure to file necessary papers).

III.

DISCUSSION
A.

28 U.S.C. § 1404(a)

Pursuant to 28 U.S.c. § 1404(a), a district court may transfer any civil action to any other
district where the action might have been brought for the convenience of parties and witnesses
and in the interests ofjustice. Congress intended through § 1404 to place discretion in the
district court to adjudicate motions to transfer according to an individualized, case-by-case
consideration of convenience and the interests ofjustice. See Stewart Org., Inc. v. Ricoh Corp.,
487 U.S. 22, 29 (1988); AilYmetrix, Inc. v. Synteni, Inc., 28 F. Supp. 2d 192, 208 (D. Del. 1998).
"Unless the balance is strongly in favor of a transfer, the plaintiff s choice of forum
should prevail." ADE Corp. v. KLA-Tencor Corp., 138 F. Supp. 2d 565, 567-68 (D. Del. 2001);

Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d. Cir 1970). The deference afforded a plaintiffs
choice of forum will apply as long as a plaintiff has selected the forum for some legitimate
reason. See Medtronic, Inc. v. Boston Scientific Corp., 587 F. Supp. 2d 648,654 (D. Del. 2008);

Cypress Semiconductor Corp. v. Integrated Circuit Sys., Inc., 2001 WL 1617186, at *2 (D. Del.
Nov. 28, 2001); Continental Cas. Co. v. American Home Assurance Co., 61 F. Supp. 2d 128, 131
(D. Del. 1999).

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Although "there is no definitive formula or list of factors" to consider in assessing
whether to transfer, typically a series of private and public interests are considered. See Jumara

v. State Farm Ins. Co., 55 F .3d 873, 879 (3d Cir. 1995). The private interests include:
(1) plaintiffs forum preference as manifested in the original choice; (2) defendant's preference;
(3) whether the claim arose elsewhere; (4) the convenience of the parties as indicated by their
relative physical and financial condition; (5) the convenience of the witnesses but only to the
extent that the witnesses may actually be unavailable for trial in one of the fora; and (6) location
of books and records (similarly limited to the extent that the files could not be produced in the
alternative forum). See id. The public interests include: (I) the enforceability of the judgment;
(2) practical considerations that could make the trial easy, expeditious or inexpensive; (3) the
relative administrative difficulty in the two fora resulting from court congestion; (4) the local
interest in deciding local controversies at horne; (5) the public policies of the fora; and (6) the
familiarity of the trial judge with the applicable state law in diversity cases. See id

B.

Forum

Plaintiffs state that "while facially it may appear that the Southern District of Georgia is
more convenient for this matter ..., Plaintiffs chose the Delaware forum due to necessity in
hopes of obtaining a fair and just tribunal." (D.l. 35) Plaintiffs argue that the "interests of
justice" should outweigh a more convenient forum. (ld) They note that three out of the four
Defendants are incorporated under the laws of Delaware. Plaintiffs urge the Court to stay a
ruling on the venue issue pending the filing of answer or other pleading by Regions. They
contend that Regions has avoided providing evidence of a debt. Defendants argue that both the

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private interests and public interests weigh in favor of a transfer to United District Court for the
Southern District of Georgia.
In viewing all the Jumara factors, the Court finds that the balance is strongly in favor of a
transfer under § 1404. The alleged facts giving rise to the complaint occurred in Georgia.
Although they filed this action in Delaware, Plaintiffs are residents of Georgia and the real
property at issue is located in Georgia. It is evident that the Southern District of Georgia is a
more convenient forum. Indeed, documents, witnesses, and evidence are located in that district.
In addition, Plaintiffs recently filed for bankruptcy in the Southern District of Georgia. It
will be more efficient and less expensive to litigate the dispute in the Southern District of
Georgia rather than Delaware. Finally, given the fact that the alleged wrongs occurred in
Georgia, the Southern District of Georgia has a stronger interest in deciding the dispute and, for
those claims raised under Georgia law, the presiding judge will have more familiarity with the
applicable law.
Given all of the related litigation in Georgia, it is not entirely clear that Plaintiffs had a
legitimate reason for filing suit here. In any event, even according deference to Plaintiffs' choice
of forum, the balance of factors is strongly in favor of a transfer to the United States District
Court for the Southern District of Georgia.

IV.

CONCLUSION
For the above reasons, the Court will order the action transferred to the United States

District Court for the Southern District of Georgia, and will deny without prejudice to renew all
other pending motions.
An appropriate Order follows.

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