TOWNS et al v. WELLS FARGO BANK NA et al
Filing
13
ORDER Construing 11 Status Report filed by US BANCORP, WELLS FARGO BANK NA as Defendants' Motion to Dismiss and Granting the motion. Plaintiffs' Complaint is Dismissed in its entirety. Ordered by Judge C. Ashley Royal on 7/17/13. (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
JOHN TOWNS and PAMELA
TOWNS,
:
:
:
Plaintiffs,
:
:
v.
:
:
No. 3:12‐CV‐142 (CAR)
WELLS FARGO BANK, N.A., d/b/a
:
WELLS FARGO HOME MORTGAGE :
d/b/a AMERICA’S SERVICING
:
COMPANY and U.S. BANCORP
:
d/b/a U.S. BANK, NATIONAL
:
ASSOCIATION,
:
:
Defendants.
:
___________________________________ :
ORDER
Before the Court is Defendants Wells Fargo Home Mortgage, a division of Wells
Fargo Bank, N.A. (“Wells Fargo”) and U.S. Bank, N.A.’s (“U.S. Bank”) status report that
the Court construes as a Motion to Dismiss [Doc. 11]. On June 21, 2013, the Court
permitted Plaintiffs John and Pamela Towns to file a response to Defendants’ filing.1
Plaintiffs, however, did not respond, and the time in which to do so has expired. As
discussed below, because the Georgia Supreme Court in You v. J.P. Morgan Chase Bank,
N.A. (hereinafter “You II”),2 has held that “[u]nder current Georgia law, the holder of a
[Doc. 12].
No. S13Q0040, 2013 WL 2152562, at *6 (Ga. May 20, 2013) (hereinafter “You II”).
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deed to secure debt is authorized to exercise the power of sale in accordance with the
terms of the deed even if it does not also hold the note or otherwise have any beneficial
interest in the debt obligation underlying the deed,”3 Defendantsʹ Motion to Dismiss
[Doc. 11] is GRANTED.
In its February 1, 2013 Order, the Court dismissed all of Plaintiffs’ claims, except
the wrongful foreclosure and attorney’s fees claims.4 Plaintiffs’ wrongful foreclosure
claim alleged that Defendants, who held the security deed to the subject property, were
not authorized to foreclose because they also did not hold the promissory note. The
Court acknowledged that our sister court in You v. J.P. Morgan Chase Bank, N.A.
(hereinafter “You I”),5 was recently confronted with the same legal issue and recognized
the split of binding authority on this issue.6 The court consequently certified the
following questions7 to the Georgia Supreme Court:
(1) Can the holder of a security deed be considered to be a secured
creditor, such that the deed holder can initiate foreclosure proceedings
on residential property even if it does not also hold the note or
otherwise have any beneficial interest in the debt obligation
underlying the debt?
Id. at *6.
[Doc. 10].
5 1:12‐cv‐202‐JEC‐AJB (N.D. Ga. Sept. 7, 2012) (“You I”).
6 Id., Doc. 15 at 10‐15.
7 The court also certified a third question in the event that the Georgia Supreme Court answered the
second question in the affirmative. You I, 1:12‐cv‐202‐JEC‐AJB, Doc. 16 at 2. However, because the
Georgia Supreme Court answered question two in the negative, it was unnecessary for the court to
answer the third question. You II, 2013 WL 2152562, at *6.
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(2) Does O.C.G.A. § 44–14–162.2(a) require that the secured creditor be
identified in the notice prescribed by that statute?8
When the Court originally considered Defendants’ motion to dismiss, the
Georgia Supreme Court had not yet answered these certified questions. As a result, the
Court denied Defendants’ motion without prejudice as to Plaintiffs’ wrongful
foreclosure and attorney’s fees claims pending the Georgia Supreme Court’s resolution
of the certified questions. The Court also administratively closed the action and
instructed the parties, in part, to promptly submit a status report notifying the Court of
the Georgia Supreme Court’s decision.
On May 20, 2013, the Georgia Supreme Court entered judgment in response to
the certified questions. The court answered the first question in the affirmative and
stated “[u]nder current Georgia law, the holder of a deed to secure debt is authorized to
exercise the power of sale in accordance with the terms of the deed even if it does not
also hold the note or otherwise have any beneficial interest in the debt obligation
underlying the deed.”9 The court answered the second question in the negative, i.e., the
secured creditor is not required to be identified in the notice required by O.C.G.A. § 44–
14–162.2, so long as the notice “‘include[s] the name, address, and telephone number of
You I, 1:12‐cv‐202‐JEC‐AJB, Doc. 16 at 2.
You II, 2013 WL 2152562 at *6.
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the individual or entity who shall have full authority to negotiate, amend, and modify
all terms of the mortgage with the debtor.’”10
In light of the Georgia Supreme Court’s holding in You II, the Court finds that
Defendants were authorized to foreclose on the subject property and exercise the power
of sale by virtue of holding the security deed at the time of the foreclosure.
Consequently, Plaintiffs’ wrongful foreclosure and attorney’s fees claims fail as a matter
of law and Defendants’ Motion to Dismiss [Doc. 11] is GRANTED. Plaintiffs’
Complaint is DISMISSED in its entirety.
SO ORDERED, this 17th day of July, 2013.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
LMH
Id. (quoting O.C.G.A. § 44–14–162.2 (emphasis in original)).
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