Kelley et al v. JP Morgan Chase Bank et al
Filing
127
ORDER denying 107 Plaintiff Kelleys Motion to Strike and Motion for Default Judgment; denying 109 Plaintiff Kelleys Motion to Compel; denying as moot 110 Plaintiffs Motion for Expedited Ruling. It is further ordered that Plaintiff Kelleys [10 8] motion for Permission to File and Amended Memorandum is granted; Plaintiff Kelleys 119 Motion for Permission to File Sur-Reply in Opposition to Defendant JP Morgan Chase Banks Motion for Summary Judgment is denied; Defendant Chases 95 Motion f or Summary Judgment is granted, and the Clerk is directed to enter judgment in favor of Chase as to Plaintiff Kelleys claims. Plaintiff Jordans 112 Motion to Extend Discovery is denied; Plaintiff Kelleys 123 Motion for Permission to File Motion for Summary Judgment is denied; and Plaintiff Kelleys 89 Amended Motion in Limine is denied as moot. Plaintiffs are ordered to show cause within 14 days of this order as to why their claims against Washington Mutual Finance should not be dismissed for failure to prosecute and the unidentified John Doe defendants are hereby dismissed from this action. Signed by Judge Richard W. Story on 10/3/13. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
FRANCISE M. KELLEY and
WILLIE JORDAN,
Plaintiffs,
v.
WASHINGTON MUTUAL
FINANCE INC., JP MORGAN
CHASE BANK, and John Does
1-3,
Defendants.
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CIVIL ACTION NO.
1:11-CV-2497-RWS
ORDER
This case comes before the Court on Plaintiff Francise M. Kelley’s
Amended Motion in Limine [89], Defendant JP Morgan Chase Bank’s Motion
for Summary Judgment as to Plaintiff Kelley’s Claims [95], Plaintiff Kelley’s
Motion to Strike JP Morgan Chase Bank’s Answer [107], Plaintiff Kelley’s
Motion for Permission to File an Amended Memorandum of Law in Opposition
to Defendant’s Motion for Summary Judgment [108], Plaintiff Kelley’s Motion
for Permission to File Motion to Compel and Motion to Stay [109], Plaintiff
Kelley’s Motion for Expedited Ruling on Motion to Compel Discovery [110],
Plaintiff Jordan’s Motion to Stay Discovery and Re-Open and Extend
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Discovery Deadline [112], Plaintiff Kelley’s Motion for Permission to File SurReply in Opposition to Defendant JP Morgan Chase Bank’s Motion for
Summary Judgment [119], and Plaintiff Kelley’s Motion for Permission to File
Motion for Summary Judgment [123]. Having carefully reviewed the record,
the Court enters the following order.
Background
On or about September 30, 2005, Plaintiff Willie Jordan entered into two
mortgage loan transactions with Long Beach Mortgage Company (“Long
Beach”). Concurrently with the loans, Plaintiff Jordan executed two security
deeds in favor of Long Beach secured by real property located at 6503 Barkston
Trace, Douglasville, Georgia 30135 [95-3].1 In connection with the loans,
Plaintiff Jordan executed two promissory notes in favor of Long Beach in the
total principal amount of $150,500.00 [95-4]. On June 7, 2006, Long Beach
merged with and into Washington Mutual Bank [95-5]. On September 25,
2008, Washington Mutual Bank was declared insolvent, and the Federal
Deposit Insurance Corporation was appointed Receiver [95-6]. Pursuant to a
1
Plaintiff Kelley disputes this fact because she argues that the security
deeds are inadmissible and unauthenticated. However, pursuant to Federal Rule of
Evidence 201, the Court may take judicial notice of public records.
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Purchase and Assumption Agreement dated September 25, 2008, the FDICReceiver transferred to JP Morgan Chase Bank (“Chase”) all right, title, and
interest in and to all of the assets of Washington Mutual Bank [Id.]. On
February 23, 2009, Chase assigned all interest in the property to Deutsche Bank
National Trust Company as Trustee for Long Beach Mortgage Loan Trust
2006-WL2 [95-7].
According to Plaintiffs’ allegations, on or about February 8, 2008,
Plaintiffs Jordan and Kelley entered into a “Lease Agreement with Option to
Purchase” [3-1]. Neither Chase nor Washington Mutual Bank was a party to
this contract [Id.]. On or about April 7, 2009, Plaintiff Jordan executed a
general power of attorney in favor of Plaintiff Kelley [3-2]. On May 14, 2009,
Plaintiff Jordan executed a quit claim deed, transferring his interest in the
property to Plaintiff Kelley. However, Plaintiff Kelley has neither assumed the
loan nor entered into a contractual relationship with Chase.
In April 2010, Plaintiff Jordan was offered a loan modification; however,
he failed to meet the prerequisites for the loan modification to be finalized [3, ¶
28]. Plaintiff Kelley signed the loan modification agreement, but it was never
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countersigned by Chase. Upon Plaintiff Jordan’s default, Chase initiated
foreclosure proceedings.
On July 29, 2011, Plaintiffs filed their Complaint in this Court [1].
Plaintiffs filed an Amended Complaint on August 1, 2011. The Court granted
in part and denied in part a Motion to Dismiss filed by Chase [21]. The Court
dismissed all of Plaintiffs’ claims except their claims for wrongful foreclosure
and breach of contract [Id.]. Both of these claims are premised upon the
contention that Chase breached a duty to Plaintiffs when it declined to modify
the subject promissory notes and deeds.
Analysis
I.
Plaintiff Kelley’s Motion to Strike [107], Plaintiff Kelley’s Motion for
Permission to File Motion to Compel [109], and Plaintiff Kelley’s
Motion for Expedited Ruling [110]
A.
Plaintiff Kelley’s Motion to Strike [107]
Plaintiff Kelley has moved to strike Defendant Chase’s Answer and
Defendant’s Chase’s Motion for Summary Judgment and has moved for entry
of default judgment against Chase [107].
As to Chase’s Answer, Plaintiff Kelley argues that it should be stricken
because it was not verified by Chase. Pursuant to Federal Rule of Civil
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Procedure 11, “[u]nless a rule or statute specifically states otherwise, a pleading
need not be verified or accompanied by an affidavit.” Thus, Chase was not
required to file a verified answer.
As to Chase’s Motion for Summary Judgment, Plaintiff Kelley argues
that it should be stricken based on three grounds. First, Plaintiff Kelley argues
that Chase’s Motion for Summary Judgment was filed prematurely (before the
close of discovery). However, the Court finds that Chase abided by the Federal
Rules of Civil Procedure and the Local Rules of this Court. Pursuant to Federal
Rule of Civil Procedure 56(b), a summary judgment motion may be filed “at
any time until 30 days after the close of all discovery.” There is no prohibition
on filing a summary judgment motion in advance of the close of discovery.
Second, Plaintiff Kelley argues that Chase’s Motion for Summary Judgment
and responsive discovery raised denials clearly contradicted by evidence in the
record. This argument does not set forth grounds upon which Chase’s Motion
for Summary Judgment should be stricken. Instead, this argument should be
raised in response to the motion. Third, Plaintiff Kelley argues that Chase
failed to produce documents promised by its initial disclosures. However,
Plaintiff Kelley has not set forth any authority that would warrant striking a
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party’s summary judgment motion over a discovery dispute, and even if the
Court presumes that all Plaintiff’s statements are true, the Court finds that
striking Chase’s motion would be excessive under the circumstances.
For the reasons stated above, Plaintiff Kelley’s Motion to Strike and
Motion for Default Judgment [107] is DENIED.
B.
Plaintiff Kelley’s Motion for Permission to File Motion to
Compel [109]
Plaintiff Kelley moves the Court for permission to file a motion to
compel [109]. Since Plaintiff Kelley filed this motion within the discovery
period, the Court will construe the motion as a motion to compel.
First, Plaintiff Kelley seeks information and/or deposition dates for: (1)
Joel Freedman, Chase’s foreclosure counsel, (2) Michael Zarro, the former
Home Lending Executive and Senior Vice President of Chase, and (3) Beth
Ann Cottrell, a foreclosure supervisor employed by Chase based out of
Columbus, Ohio. Joel Freedman is not an employee of Chase and is not under
the control of Chase. As such, Chase is not responsible for producing Joel
Freedman for a deposition in this case. As to Michael Zarro and Beth Ann
Cottrell, Plaintiff Kelley seeks to depose them based upon their testimony in
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prior, unrelated litigations, but Plaintiff Kelley has not identified their
involvement with the subject loan or litigation. As such, their depositions are
outside the scope of discovery required by Federal Rule of Civil Procedure 26.
Second, Plaintiff Kelley seeks to compel the production of the loan file.
Defendant Chase states that Plaintiff Kelley had not previously requested these
documents and that the documents were produced concurrently with the
response to the motion.
Third, Plaintiff Kelley objects to Chase’s written discovery requests
because: (1) Chase’s representative verified Chase’s responses and objections to
her interrogatories rather than answering them himself, (2) the case number on
Chase’s written discovery responses failed to identify Judge Story in the case
number, and (3) Michael Wolak III and Julie C. Jared were not identified in the
signature block of the documents. However, the Court has reviewed Chase’s
responses, and the Court finds that they were proper.
For the reasons stated above, Plaintiff Kelley’s Motion to Compel [109]
is DENIED.
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C.
Plaintiff Kelley’s Motion for Expedited Ruling [110]
Plaintiff Kelley moved the Court for expedited ruling on her Motion to
Compel and Motion for Default Judgment [110]. The Court has now ruled on
those motions, so Plaintiff’s Motion for Expedited Ruling [110] is DENIED as
MOOT.
II.
Defendant Chase’s Motion for Summary Judgment [95]
A.
Standard
Federal Rule of Civil Procedure 56 requires that summary judgment be
granted “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “The moving party bears ‘the initial responsibility of informing the . . .
court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue
of material fact.’” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259
(11th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(internal quotations omitted)). Where the moving party makes such a showing,
the burden shifts to the non-movant, who must go beyond the pleadings and
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present affirmative evidence to show that a genuine issue of material fact does
exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
The applicable substantive law identifies which facts are material. Id. at
248. A fact is not material if a dispute over that fact will not affect the outcome
of the suit under the governing law. Id. An issue is genuine when the evidence
is such that a reasonable jury could return a verdict for the non-moving party.
Id. at 249-50.
Finally, in resolving a motion for summary judgment, the court must
view all evidence and draw all reasonable inferences in the light most favorable
to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296
(11th Cir. 2002). But, the court is bound only to draw those inferences which
are reasonable. “Where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no genuine issue for trial.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249-50 (internal citations
omitted); see also Matsushita, 475 U.S. at 586 (once the moving party has met
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its burden under Rule 56(a), the nonmoving party “must do more than simply
show there is some metaphysical doubt as to the material facts”).
B.
Analysis
As an initial matter, Plaintiff Kelley has moved the Court for permission
to file an amended memorandum of law in opposition to Chase’s Motion for
Summary Judgment [108]. Plaintiff Kelley’s Motion [108] is GRANTED. The
Court will consider Plaintiff Kelley’s amended response [108-1] in deciding
Chase’s Motion for Summary Judgment.
Plaintiff has also filed a Motion for Permission to File Sur-Reply in
Opposition to Defendant JP Morgan Chase Bank’s Motion for Summary
Judgment [119]. In her motion, Plaintiff Kelley asserts that Chase raised for the
first time in its Reply Brief a res judicata argument based on a 2009 foreclosure
judgment Chase secured. Because this issue had not previously been raised,
Kelley seeks leave to address it in a sur-reply brief. It is common practice for
the Court not to hear arguments raised for the first time in a reply brief. See
United States v. Oakley, 744 F2d 1553, 1556 (11th Cir. 1984) (“Arguments
raised for the first time in a reply brief are not properly before the reviewing
court.”); United States v. Ga. Dep’t of Natural Res., 897 F.Supp. 1464, 1471
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(N.D.Ga. 1995) (“This court will not consider arguments raised for the first
time in a reply brief.”). The res judicata argument was not raised in Chase’s
original brief. Therefore, the court will not consider the argument in its analysis
of the motion. Because the argument will not be considered, a sur-reply is not
needed. Therefore, Kelley’s Motion for Permission to File Sur-Reply in
Opposition to Defendant JP Morgan Chase Bank’s Motion for Summary
Judgment [119] is DENIED.
Defendant Chase argues that it is entitled to summary judgment as to
Plaintiff Kelley’s claims because Kelley, who is not a party to the contract
between Chase and Plaintiff Jordan, lacks standing to pursue the claim. The
Court agrees. Kelley is not a signatory to the notes or the deeds, and she is not
a named borrower to the proposed loan modification agreement. Also, she does
not have a recorded interest in the property. In Georgia, “an action on a
contract . . . shall be brought in the name of the party in whom the legal interest
in the contract is vested, and against the party who made it.” O.C.G.A. § 9-220(a); Alexander v. Dinwiddie, 214 Ga. 441, 442 (1958). In this case, since
Plaintiff Kelley is not a signatory to the notes or deeds, she does not have a
legal interest in the property. To the extent Plaintiff Kelley contends that she is
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a third-party beneficiary, this argument fails because there is no mention of
Plaintiff Kelley in any of the documents. Also, she did not enter into a lease
agreement until February 2008, so execution of the notes and deeds, which
occurred in 2005, could not have been for her benefit. There is likewise no
indication that the loan modification agreement was intended to benefit Plaintiff
Kelley. For the reasons stated above, the Court finds that Chase is entitled to
summary judgment as to Plaintiff Kelley’s breach of contract claim.
Similarly, Plaintiff Kelley lacks standing to challenge the foreclosure
because she lacks a legal interest in the property. For that reason, the Court
finds that Chase is entitled to summary judgment as to Plaintiff Kelley’s breach
of contract claim.
Defendant Chase’s Motion for Summary Judgment [95] is GRANTED.
III.
Plaintiff Jordan’s Motion to Extend Discovery [112]
Plaintiff Jordan has moved the court to re-open discovery and extend the
discovery deadline through November 15, 2013 [112]. Plaintiff Jordan states
that good cause exists to extend the discovery deadline because the parties have
failed to schedule witness depositions and Jordan has not yet filed or served his
discovery. Defendant Chase has filed a Response in Opposition [117] pointing
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out that Plaintiff Jordan made his first appearance in the litigation over two
years after the suit was filed and just three days before the close of the
discovery period, which had previously been extended on several occasions.
The Court’s last discovery Order [88] issued May 15, 2013, stated the specific
discovery that could be propounded and required that it be served within 21
days of the entry of that order. Once a scheduling order is issued, it may only
be modified for good cause. Fed. R. Civ. P. 16(b)(4).
In his motion, Plaintiff Jordan simply makes the conclusory assertion that
good cause exists. However, he offers no facts supporting that assertion. The
Court finds that good cause has not been shown. Therefore, Plaintiff Jordan’s
Motion to Extend Discovery [112] is DENIED.
IV.
Plaintiff Kelley’s Motion for Permission to File Motion for
Summary Judgment [123] and Amended Motion in Limine [89]
Plaintiff Kelley filed a Motion for Permission to File Motion for
Summary Judgment [123] against Defendant JP Morgan Chase Bank. In light
of the Court’s ruling in Part II of this Order that Plaintiff Kelley lacks standing
to assert the claims against Chase, her motion [123] is due to be DENIED. For
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this same reason, Plaintiff Kelley’s Amended Motion in Limine [89] is
DENIED as MOOT.
V.
Service
The Court notes that Washington Mutual Finance is named as a party to
this action. However, it does not appear that Washington Mutual Finance has
been served. Federal Rule of Civil Procedure 4(m) requires service within 120
days of the filing of a Complaint. Plaintiffs’ Amended Complaint was filed on
August 1, 2011 [3]. It appears that Plaintiffs have not complied with Rule 4(m).
Plaintiffs are ORDERED to show cause within fourteen days of this order as to
why their claims against Washington Mutual Finance should not be dismissed
for failure to prosecute.
VI.
John Doe Defendants
The court notes that Plaintiffs have named “John Does 1-3” as
defendants. Plaintiffs may not proceed with this action against the unidentified
John Doe defendants. See Wayne v. Jarvis, 197 F.3d 1098, 1102-03 (11th Cir.
1999), overruled on other grounds by Manders v. Lee, 338 F.3d 1304, 1328
n.52 (11th Cir. 2003). Accordingly, these unidentified defendants are hereby
DISMISSED from this action.
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Conclusion
For the reasons stated above:
(1)
Plaintiff Kelley’s Motion to Strike and Motion for Default
Judgment [107] is DENIED;
(2)
Plaintiff Kelley’s Motion to Compel [109] is DENIED;
(3)
Plaintiff’s Motion for Expedited Ruling [110] is DENIED as
MOOT;
(4)
Plaintiff Kelley’s motion for Permission to File and Amended
Memorandum [108] is GRANTED; Plaintiff Kelley’s Motion for
Permission to File Sur-Reply in Opposition to Defendant JP
Morgan Chase Bank’s Motion for Summary Judgment [119] is
DENIED; Defendant Chase’s Motion for Summary Judgment [95]
is GRANTED, and the Clerk is DIRECTED to enter judgment in
favor of Chase as to Plaintiff Kelley’s claims;
(5)
Plaintiff Jordan’s Motion to Extend Discovery [112] is DENIED;
(6)
Plaintiff Kelley’s Motion for Permission to File Motion for
Summary Judgment [123] is DENIED;
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(7)
Plaintiff Kelley’s Amended Motion in Limine [89] is DENIED as
MOOT;
(8)
Plaintiffs are ORDERED to show cause within fourteen days of
this order as to why their claims against Washington Mutual
Finance should not be dismissed for failure to prosecute; and
(9)
The unidentified John Doe defendants are hereby DISMISSED
from this action.
SO ORDERED, this 3rd
day of October, 2013.
_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
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