Bandele et al v. Deutsche Bank National Trust Company et al

Filing 24

ORDER granting 2 Motion to Dismiss American Home Mortgage Servicing, Inc. and Deutsche Bank National Trust Company, granting 6 Motion for Judgment on the Pleadings, denying as moot 13 Motion for Clarification. Signed by Judge Thomas W. Thrash, Jr on 3/21/12. (dr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
YERO BANDELE, et al.,
Plaintiffs,
v.

CIVIL ACTION FILE
NO. 1:11-CV-4257-TWT

DEUTSCHE BANK NATIONAL
TRUST COMPANY, et al.,
Defendants.

ORDER

This is a wrongful foreclosure action. It is before the Court on the Defendants
Deutsche Bank National Trust Company (“Deutsche Bank”) and American Home
Mortgage Servicing, Inc.’s (“AHMSI”) Motion to Dismiss [Doc. 2], and the
Defendants McCurdy & Candler, LLC (“McCurdy”) and Anthony DeMarlo’s Motion
for Judgment on the Pleadings [Doc. 6]. For the reasons set forth below, the Court
GRANTS the Motion to Dismiss [Doc. 2] and GRANTS the Motion for Judgment on
the Pleadings [Doc. 6]. Deutsche Bank and AHMSI’s Motion for Clarification [Doc.
13] is DENIED as moot.

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I. Background
The Plaintiffs in this action are Yero Bandele and Olivia Wintz. On November
28, 2006, Plaintiff Olivia Wintz took out a loan in the original principal amount of
$477,000.00 from AHM Mortgage (the “Loan”). In connection with the Loan, Ms.
Wintz executed the Note and the Security Deed conveying the property located at 125
Brown Thrasher Run, Oxford, Georgia (the “Property”). (Defs.’ Br. in Supp. of Defs.’
Mot. to Dismiss, Ex. A.) The Security Deed was filed and recorded with the Clerk of
Newton County Superior Court in Book 2354, pages 288-309, on January 3, 2007.

On October 13, 2008, an Assignment of Security Deed was recorded in the Real
Estate Records of Newton County in Deed Book 2654, Pages 83-84 (the “AHMSI
Assignment”), giving notice of the assignment of the Security Deed to AHMSI. On
May 2, 2011, an Assignment was recorded in Deed Book 2904, Pages 226-227, Real
Estate Records of Newton County (the “Trustee Assignment”) assigning the Security
Deed to Deutsche Bank, as Trustee for American Home Mortgage Asset Trust 2007-1,
Mortgage-Backed Pass-Through Certificates Series 2007-1 and AHMSI. AHMSI is
also the servicer of the Loan. Ms. Wintz defaulted under the terms of the Loan, and
foreclosure proceedings were instituted by AHMSI as servicer on behalf of the
Trustee. McCurdy was retained as counsel for AHMSI and the Trustee to conduct the

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foreclosure proceedings.

The Defendant DeMarlo is the managing partner of

McCurdy.
On October 4, 2011, the Trustee held a non-judicial foreclosure sale of the
Property. On October 3, 2011, the Plaintiffs initiated this action in the Superior Court
of Newton County, and filed the Complaint to amend their original petition on
November 4, 2011. The action was removed to this Court on December 8, 2011 [Doc.
1]. On December 15, 2011, Deutsche Bank and AHMSI filed this Motion to Dismiss
[Doc. 2]. On January 5, 2012, McCurdy and DeMarlo filed this Motion for Judgment
on the Pleadings [Doc. 6]. Pro se Plaintiffs Bandele and Wintz failed to timely
respond to the Motion to Dismiss, and moved for an Extension of Time after the
deadline for filing its Response on January 19, 2012 [Doc. 11]. Nonetheless, the
Court granted the Plaintiffs’ motion on January 27, 2012 [Doc. 12], giving the
Plaintiffs fourteen additional days from the date of the Order to file its Response.
Those fourteen days have since elapsed and the Plaintiffs have not responded to either
the Motion to Dismiss or the Motion for Judgment on the Pleadings.
II. Motion to Dismiss Standard
A complaint should be dismissed under Rule 12(b)(6) only where it appears that
the facts alleged fail to state a “plausible” claim for relief. Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009); Fed. R. Civ. P. 12(b)(6). A complaint may survive a motion to

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dismiss for failure to state a claim, however, even if it is “improbable” that a plaintiff
would be able to prove those facts; even if the possibility of recovery is extremely
“remote and unlikely.” Bell Atlantic v. Twombly, 550 U.S. 544, 556 (2007). In
ruling on a motion to dismiss, the court must accept the facts pleaded in the complaint
as true and construe them in the light most favorable to the plaintiff. See Quality
Foods de Centro America, S.A. v. Latin American Agribusiness Dev. Corp., S.A., 711
F.2d 989, 994-95 (11th Cir. 1983); see also Sanjuan v. American Bd. of Psychiatry
and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994) (noting that at the pleading
stage, the plaintiff “receives the benefit of imagination”). Generally, notice pleading
is all that is required for a valid complaint. See Lombard's, Inc. v. Prince Mfg., Inc.,
753 F.2d 974, 975 (11th Cir. 1985), cert. denied, 474 U.S. 1082 (1986). Under notice
pleading, the plaintiff need only give the defendant fair notice of the plaintiff's claim
and the grounds upon which it rests. See Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(citing Twombly, 127 S.Ct. at 1964).
III. Discussion
A.

Deutsche Bank and AHMSI

No response to the Motion to Dismiss has been filed and it may be treated as
unopposed. In addition, the Complaint fails to state a claim for relief. The claim for
injunctive relief against the foreclosure sale is moot as the foreclosure has already

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taken place. (Compl. ¶ 39); Wiggins v. Board of Com’rs of Tift County, 258 Ga. App.
666, 668 (2002). The claim for wrongful foreclosure is also dismissed. The
Defendants had the right to foreclose on the Property because the Security Deed is
assignable. (Defs.’ Br. in Supp. of Defs.’ Mot. to Dismiss, Ex. A.) See Trent v.
Mortgage Electronic Registration Systems, Inc., 288 Fed. Appx. 571, 572 (11th Cir.
2008); LaCosta v. McCalla Raymer, LLC, 2011 WL 166902, at *3 (N.D. Ga. Jan. 18,
2011) (“Plaintiff unequivocally granted MERS the power to sell the Property if she
were not able to comply with the terms of the Note.”). Security deeds and other
mortgage loans are transferrable by way of assignment in Georgia. O.C.G.A. § 44-1464. Furthermore, the Plaintiffs do not have standing to challenge the Assignment
because they were not a party to the Assignment. See, e.g., Haldi v. Piedmont
Nephrology Assocs., 283 Ga. App. 321, 322 (2007). Moreover, the Defendants are
not required to “produce the note” in order to establish standing to foreclose. Cooke
v. BAC Home Loans Servicing, LP, No. 1:11-CV-2126-TWT, 2011 WL 4975386, at
*2 (N.D. Ga. Oct. 18, 2011). The Plaintiffs’ claim of fraud is not made with
sufficiently particularity. See Fed R. Civ. P. 9(b). All other counts fail to state a
plausible claim for relief.

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B.

McCurdy and DeMarlo

No response to the Motion for Judgment on the Pleadings has been filed and it
may be treated as unopposed. Also, and in addition to the reasons that Deutsche Bank
and AHMSI are dismissed as defendants, the Plaintiffs failed to properly serve
McCurdy and DeMarlo.
IV. Conclusion
For the reasons set forth above, the Court GRANTS the Motion to Dismiss
[Doc. 2] and GRANTS the Motion for Judgment on the Pleadings [Doc. 6]. Deutsche
Bank and AHMSI’s Motion for Clarification [Doc. 13] is DENIED as moot.
SO ORDERED, this 21 day of March, 2012.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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