COPELAN et al v. ELITE LENDING PARTNERS et al

Filing 12

ORDER DENYING 7 Motion to Remand. The Defendants' 3 Motion for a More Definite Statement is GRANTED. A ruling on the Defendants' 3 Motion to Dismiss is POSTPONED. Ordered by Judge Marc Thomas Treadwell on 6/5/2013. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
WILLIE DAVID COPELAN and
CLARA I. COPELAN,
Plaintiffs,
v.
ELITE LENDING PARTNERS et al.,
Defendants.

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CIVIL ACTION NO. 5:13-CV-95 (MTT)

ORDER
Before the Court is the Plaintiffs’ Motion to Remand this case to state court (Doc.
7) and the Defendants’ Motions to Dismiss or for a More Definite Statement (Doc. 3).
The Plaintiffs’ Motion is DENIED. A ruling on the Defendants’ Motion to Dismiss is
POSTPONED. The Defendants’ Motion for a More Definite Statement is GRANTED.
I. BACKGROUND
The Plaintiffs own property in Eatonton at 116 Copelan Landing Drive. (Doc. 1-1,
¶¶ 12-13). In June 2007, to obtain a $582,400 loan, they executed a promissory note in
favor of Elite Lending Partners and conveyed the property by security deed to Mortgage
Electronic Registration Systems, Inc. (“MERS”) as nominee for Elite.1 (Doc. 1-1, ¶ 14;

1

As the Plaintiffs observe in their Complaint, MERS has previously described its role in real
estate transactions such as this one to the Georgia Supreme Court:
MERS simply holds the security deed as nominee for the actual owner of the
promissory note and security deed. It is common these days for mortgage loans
(as well as other loans) to be bought and sold several times during the life of a
loan. MERS simply acts as the record title holder of the security deed so that
transfers and assignments do not have to be filed in the appropriate superior
court clerk's office each time the loan is sold or transferred from one note holder

Doc. 1-1 at 22). On October 18, 2012, with the Plaintiffs’ loan in default, MERS
assigned the security deed to Bank of New York Mellon Trust Company (“Mellon”) for
collection. (Doc. 1-1, ¶ 15). Mellon attempted to foreclose on the Plaintiffs’ property
November 30, 2012. (Doc. 1-1, ¶ 22). The Plaintiffs allege that Elite is a fictitious entity
that was never organized and never existed as a corporation. (Doc. 1-1, ¶¶ 16, 25).
Accordingly, they contend MERS’ assignment of the security deed to Mellon did not
transfer any interest in the property because MERS had no interest to transfer. (Doc. 11, ¶ 24). The Plaintiffs ask that the Defendants be enjoined from exercising their power
of sale2 and for a declaratory judgment that the Plaintiffs are the sole owners of the
property.
The Plaintiffs filed their Complaint in the Superior Court of Putnam County. (Doc.
1-1). The Defendants removed the action to this Court on March 19, 2013.3 (Doc. 1).
They filed a Motion to Dismiss or alternatively a Motion for More Definite Statement on
April 1. (Doc. 3). On April 15, the Plaintiffs moved to remand the case to state court.
(Doc. 7).

to the next. MERS is never the lender. Rather, it acts as the nominee of the
lender to hold the security deed.
Brief for MERS at *3-*4, Taylor, Bean & Whitaker Mortg. Corp. v. Brown, 276 Ga. 848, 583
S.E.2d 844 (2003), 2002 WL 32333560.
2

The sale was initially scheduled to take place the first Tuesday in January 2013. That sale
was cancelled and rescheduled for April 2, 2013. However, the Plaintiffs never requested a
temporary restraining order from this Court to stop the sale. As of the date of this Order, it is
unclear to the Court whether the property has been sold.
3

This is the Plaintiffs’ second appearance in this Court on this matter. Their first action, No.
5:12-cv-310, was voluntarily dismissed without prejudice January 10, 2013.
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II. DISCUSSION
A. Motion to Remand
An action filed in state court is removable to federal court where the federal court
would have federal question or diversity jurisdiction. 28 U.S.C. § 1441(a). Diversity
jurisdiction exists when the opposing parties are citizens of different states and the
amount in controversy exceeds $75,000. 28 U.S.C. § 1332. The burden is on the party
seeking removal to establish federal subject matter jurisdiction. Williams v. Best Buy
Co., 269 F.3d 1316, 1319 (11th Cir. 2001).
Here, the Plaintiffs are citizens of Georgia. MERS is a corporation organized
under the laws of Delaware with its principal place of business in Virginia, making it a
citizen of those states. (Doc. 1, ¶ 8). Mellon is a national banking association
headquartered in California; it is a citizen of that state. (Doc. 1, ¶ 9). Elite, which has
not been served in this action, is believed to be a limited liability company organized
under the laws of Connecticut. (Doc. 1, ¶ 10; Doc. 1-3). The Defendants alleged this
fact in their removal notice and the Plaintiffs have not disputed it nor suggested Elite is a
non-diverse party. Rather, the Plaintiffs argue that because Elite has not been served it
has not consented to removal. But “[t]here is no merit to [the Plaintiffs’] argument that
removal was improper because [Elite] did not consent to it. The requirement that there
be unanimity of consent in removal cases with multiple defendants does not require
consent of defendants who have not been properly served.” Johnson v. Wellborn, 418
Fed. Appx. 809, 815 (11th Cir. 2011) (citing Bailey v. Janssen Pharmaceutica,Inc., 536
F.3d 1202, 1208 (11th Cir. 2008)).

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Rubin Lublin, LLC was not a named party in the Complaint. However, the law
firm is listed as a defendant in the caption of the Rule Nisi that counsel for the Plaintiffs
presented to the state court at the same time the Complaint was filed. (Doc. 1-1 at 55).
Confusingly, the Plaintiffs state that Rubin Lublin “has never been a party to this action,
yet included themselves as Defendants.” (Doc. 7 at 2). This doesn’t make any sense
because it was obviously the Plaintiffs’ counsel who added Rublin Lublin to the Rule
Nisi caption, thereby suggesting to the law firm that it was a defendant in this suit. Even
so, the Plaintiffs have not alleged any facts to support a claim against Rubin Lublin.
Perhaps this is because, as the Plaintiffs state, they did not intend to name the firm as a
Defendant in the first place. Accordingly, the Court finds the Rubin Lublin is not a
defendant. Its listing in the captions of the Rule Nisi, Removal Notice, and elsewhere
has no bearing on its status as a Defendant or the Parties’ diversity.4
Given that the parties are completely diverse, the only remaining jurisdictional
issue is whether there is more than $75,000 in controversy. The Plaintiffs argue that
because they are seeking equitable relief in the form of a declaratory judgment, there
are no damages involved and the amount in controversy requirement is not met. The
Plaintiffs cite no authority for this proposition. Presumably this is because they cannot.
When a plaintiff seeks injunctive relief barring foreclosure on the property at issue, the
value of that property is what determines the amount in controversy. Roper v. Saxon
Mortg. Servs., 2009 WL 1259193 at *2 (N.D. Ga.) (citing Waller v. Prof’l Ins. Corp., 296
F.2d 545, 547 (5th Cir. 1961)). See also Cohen v. Office Depot, Inc., 204 F.3d 1069,
4

To whatever extent Rubin Lublin could be construed as an actual Defendant, the Court finds
the firm was improperly joined pursuant to the doctrine of fraudulent joinder. See Stillwell v.
Allstate Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011). Therefore, its citizenship has no
bearing on the parties’ diversity for the purposes of removal or subject matter jurisdiction.
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1077 (11th Cir. 2000) (“[w]hen a plaintiff seeks injunctive or declaratory relief, the
amount in controversy is the monetary value of the object of the litigation from the
plaintiff’s perspective”); Reynolds v. JP Morgan Chase Bank, 2011 WL 5835925 at *2
(M.D. Ga.) (holding the amount in controversy requirement was met based on security
deed valued at $155,750). In this case, the property is valued by the Putnam County
Tax Assessor’s Office at $598,080. (Doc. 1-4). Moreover, the loan the property
secured was $582,400. Thus, the amount in controversy exceeds $75,000.
The requirements for diversity jurisdiction have been satisfied. Accordingly, the
Plaintiffs’ Motion to Remand is DENIED.
B. Motion to Dismiss and Motion for More Definite Statement
The Plaintiffs’ lawsuit asks for injunctive relief restraining the sale of their
property and a declaratory judgment declaring them the sole owners. However, as
noted above, their property was scheduled to be sold April 2. See note 2, supra. It is
unclear whether the sale took place as scheduled. If the property has been sold, the
Plaintiffs’ action would appear to now be moot unless some other form of relief is
available to them. Additionally, the Defendants are correct – the Plaintiffs’ Complaint
contravenes Fed. R. Civ. P. 8, and it is difficult to determine the precise cause of action
supporting their claims. Finally, the Plaintiffs have not responded to the Defendants’
Motion to Dismiss, despite specifically asking for and receiving more time to do so.
Nevertheless, given the uncertainty as to the disposition of the property and the
difficulty in deciphering the Plaintiffs’ Complaint, the Court will briefly postpone its ruling
on the Defendants’ Motion to Dismiss. The Plaintiffs have seven days from the date
this Order is entered to file an Amended Complaint that complies with Rule 8, reflects

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whether the property has been sold,5 and states a plausible claim for relief. In drafting
their Amended Complaint, the Plaintiffs shall consider the Georgia Supreme Court’s
May 20, 2013, decision in You v. JP Morgan Chase Bank, 2013 WL 2152562. The
Plaintiffs’ failure to amend their Complaint within this time period will result in dismissal
of their claims.
III. CONCLUSION
The Plaintiffs’ Motion to Remand is DENIED. The Defendants’ Motion for a More
Definite Statement is GRANTED. A ruling on the Defendants’ Motion to Dismiss is
POSTPONED.
SO ORDERED, this 5th day of June, 2013.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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If the Plaintiffs’ property has been sold, their Amended Complaint should appropriately revise
the form of relief they seek.
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