O'Connor et al v. Wells Fargo Bank, National Association et al

Filing 61

ORDER approving and adopting the 17 Report and Recommendation as the Opinion and Order of this Court. Plaintiffs' Emergency Request for Preliminary Injunction 14 is DENIED, Defendants' Motions to Dismiss Plaintiffs' Complaint 4 a nd 7 are GRANTED such that all claims with respect to Defendant J.P. Morgan Chase Bank, N.A. are DISMISSED WITH PREJUDICE, all claims against McCalla Raymer, LLC and Wells Fargo Bank, National Association premised on Wells Fargos alleged lack of st anding to foreclose are DISMISSED WITH PREJUDICE, and to the extent Plaintiffs have attempted to allege any claims against McCalla Raymer and Wells Fargo premised under any other theory, those claims are DISMISSED WITHOUT PREJUDICE; Plaintiffs' Motion for Summary Judgment 19 is DENIED; Plaintiffs' Motion to Defer Ruling on Defendants' Motions to Dismiss and Plaintiffs' Motion for Summary Judgment 21 is DENIED; Plaintiffs' Motion for Appointment of Counsel 22 is DEN IED; Plaintiffs' Second Emergency Motion for an Injunction 24 is DENIED; Plaintiffs' Motion for an Order to Show Cause Why This Court Should Not Refer Defendants' Actions in This Case for Criminal Prosecution 25 is DENIED; Plaintif fs' Motion for Financial Disclosure Statement of U.S. Magistrate Judge Vineyard 26 is DENIED; Plaintiffs' Motion for Recusal and Disqualification of Judge 27 is DENIED; Defendants' Motion to Dismiss Plaintiffs' "Amendment to the Original Complaint" 29 is GRANTED; Defendants' Motion to Disregard Plaintiffs' Surreply 34 is GRANTED; Defendants' Motion to Strike Amended Complaint 35 is GRANTED; Plaintiffs' Second Request for an Order to Sho w Cause 43 is DENIED; Plaintiffs' Motion to Admit Affidavit Testimony of Joseph R. Esquivel, Jr. 52 is DENIED; Plaintiffs' Motion to Strike the Document Known as the "Assignment From the Record" as Uncorroborated and Admissible Hearsay 53 is DENIED; and Plaintiffs' Request That the Court Take Judicial Notice of Defendants' Failure to Prove They Own the Plaintiffs' Mortgage 59 is DENIED. Signed by Judge Richard W. Story on 3/27/13. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CLINTON G. O’CONNOR and
DAPHNE E. O’CONNOR,
Plaintiff,
v.
WELLS FARGO BANK, National
Association as Trustee for
Certificateholders of Bear Stearns
Asset Backed Securities I LLC,
Asset Backed Certificates, Series
2007-AC2, et al.,
Defendants.

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CIVIL ACTION NO.
1:12-CV-2525-RWS

ORDER
This case is before the Court for consideration of the Report and
Recommendation [17] of Magistrate Judge Russell G. Vineyard and the
following Motions filed subsequent to issuance of the Report and
Recommendation: Plaintiffs’ Motion for Summary Judgment [19]; Plaintiffs’
Motion to Defer Ruling on Plaintiff’s Motion for Summary Judgment and
Defendant’s Motion to Dismiss Complaint until all discovery has been
completed [21]; Plaintiffs’ Motion for Appointment of Counsel [22]; Plaintiffs’

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Second Emergency Motion for and Injunction [24]; Plaintiffs’ Motion for an
Order to Show Cause Why This Court Should Not Refer Defendant’s Actions
in This Case for Criminal Prosecution [25]; Plaintiffs’ Motion for Financial
Disclosure Statement of U.S. Magistrate Judge Vineyard [26]; Plaintiffs’
Motion for Recusal and Disqualification of Judge [27]; Defendant’s Motion to
Dismiss Plaintiff’s “Amendment to the Original Complaint” [29]; Defendant’s
Motion to Disregard Plaintiff’s Surreply [34]; Defendant’s Motion to Strike
Plaintiff’s Amended Complaint [35]; Plaintiffs’ Second Request for an Order to
Show Cause [43]; Plaintiffs’ Motion to Admit Affidavit Testimony of Joseph R.
Esquivel, Jr. [52]; Plaintiffs’ Motion to Strike the Document Known as the
“Assignment” From the Record as Uncorroborated Inadmissible Hearsay [53];
and Plaintiffs’ Request that the Court Take Judicial Notice of Defendant’s
Failure to Prove that They Own the Mortgage [59]. Having reviewed the
record, the Court will address each of the pending motions, in turn.
Plaintiffs’ Motion for Recusal and Disqualification of Judge [27]
As an initial matter, the Court addresses Plaintiffs’ Motion for Recusal
and Disqualification of Judge [27]. Plaintiffs’ Motion is based on a disclosure
contained in the undersigned’s 2010 Financial Disclosure Report that the
undersigned has an interest in TIAA-CREF Retirement Fund. Plaintiffs assert
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that that fund apparently holds shares of JP Morgan Chase and Wells Fargo
Bank stock. Pursuant to 28 U.S.C. § 455(b)(4), Plaintiffs seek the
disqualification of the undersigned based on a financial interest in a party to the
proceeding.
While it is true that Section 455(b)(4) requires recusal when a judge has a
financial interest in a party to the proceedings, financial interest is further
defined by the Act. “‘Financial Interest’ means ownership of a legal or
equitable interest, however small, or a relationship as director, adviser, or other
active participant in the affairs of a party, except that: (i) ownership in a mutual
or common investment fund that holds securities is not a ‘financial interest’ in
such securities unless the judge participates in the management of the fund.” 28
U.S.C. § 455(d)(4). The interest challenged by Plaintiffs is an ownership
interest in a mutual or common fund and the undersigned does not participate in
the management of the fund. Therefore, the investment does not qualify as a
‘financial interest’ under the recusal statute. Therefore, Plaintiffs’ Motion for
Recusal and Disqualification of Judge [27] is DENIED.
Defendants’ Motion to Disregard Plaintiffs Surreply [34]
Defendant McCalla Raymer filed its Motion to Dismiss [7] on July 27,
2012. In response, Plaintiffs filed their “Motions Special Cause of Action to
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Appoint Counsel/Special Master” [7] on September 6, 2012, which McCall
Raymer treated as a response to its Motion to Dismiss. McCalla Raymer filed
its Reply Brief [12] on September 24, 2012. On October 30, 2012, Plaintiffs
filed their Response to Defendants’ Motion to Dismiss Complaint [20] after the
Report and Recommendation was issued. Defendant McCalla Raymer moves
the Court to disregard the Response [20] as an unauthorized surreply. The
Court agrees that the submission was clearly untimely as a response to
Defendants’ Motion. Moreover, Plaintiffs did not seek leave to file a surreply
to Defendants’ Reply Brief. In fact, the brief was not filed until the day after
the Report and Recommendation was issued. Therefore, the Court finds it
appropriate to GRANT Defendants’ Motion [34].
Report and Recommendation [17]
On October 29, 2012, Magistrate Judge Russell G. Vineyard issued a
Report and Recommendation [17]. Plaintiffs have filed Objections [28] to the
Report and Recommendation, and Defendants have filed a Response [49] to the
Objections. Having reviewed the Objections, the Court finds that Plaintiffs
present no grounds for rejecting the conclusions reached in the Report and
Recommendation.

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Therefore, the Report and Recommendation is received with approval
and adopted as the Opinion and Order of this Court. Accordingly, Plaintiffs’
Emergency Request for a Preliminary Injunction [14] is DENIED; Defendants’
Motions to Dismiss Plaintiffs’ Complaint [4 and 7] are GRANTED such that
all claims with respect to Defendant J.P. Morgan Chase Bank, N.A. are
DISMISSED WITH PREJUDICE, all claims against McCalla Raymer, LLC
and Wells Fargo Bank, National Association premised on Wells Fargo’s alleged
lack of standing to foreclose are DISMISSED WITH PREJUDICE, but to the
extent Plaintiffs have attempted to allege any claims against McCalla Raymer
and Wells Fargo premised under any other theory, those claims are
DISMISSED WITHOUT PREJUDICE.
Having found that Defendants’ Motions to Dismiss [4 and 7] are due to
be granted, all of the motions filed by Plaintiffs subsequent to the issuance of
the Report and Recommendation are denied, as moot. However, even if they
were considered on their merits, they would be denied. The Court will briefly
address each of the subsequently filed motions, in turn.
Plaintiffs’ Motion for Summary Judgment [19]
After issuance of the Report and Recommendation, Plaintiff file a Motion
for Summary Judgment [19]. However, Plaintiffs’ Motion fails to comply with
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Local Rule 56.1's requirement that a movant for summary judgment include a
statement of material facts to which the movant contends there is no genuine
issue to be tried. Each fact must be numbered separately and supported by a
citation to evidence proving the fact. Plaintiffs failed to comply with this
obligation. Thus, the Motion is due to be denied.
Even if the Motion were viewed on its merits, the Motion would be
denied for the same reasons that the Court has granted the Defendants’ Motions
to Dismiss. Many of the theories asserted by Plaintiffs’ in their Motion have
already been decided against them in previous actions. Based on the foregoing,
Plaintiffs’ Motion for Summary Judgment [19] is DENIED.
Motion to Defer Ruling on Defendants’ Motions to Dismiss and
Plaintiffs’ Motion for Summary Judgment [21]
Plaintiffs request that the Court defer ruling on Defendants’ Motions to
Dismiss and Plaintiffs’ Motion for Summary Judgment to allow Plaintiffs time
to engage in discovery. However, based on the Court’s foregoing rulings that
Plaintiffs’ claims are subject to dismissal as a matter of law, the Court
concludes that additional discovery cannot be justified. Therefore, Plaintiffs’
Motion [21] is DENIED.

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Motion for Appointment of Counsel [22]
Plaintiffs request that the Court appoint counsel to represent them in this
proceeding. However, for the same reasons stated by Judge Vineyard in
denying their request in the Report and Recommendation, the Motion [22] is
DENIED. See Report & Recommendation [17] at n.10.
Plaintiffs’ Second Emergency Motion for an Injunction [24]
Plaintiffs seek an emergency injunction barring state-court dispossessory
proceedings. Having found that this action is due to be dismissed, Plaintiffs are
not able to meet the first requirement for a preliminary injunction; i.e., a
substantial likelihood of success on the merits. Therefore, the Motion [24] is
DENIED.
Plaintiffs’ Motion for an Order to Show Cause Why This Court Should
Not Refer Defendants’ Actions in This Case for Criminal Prosecution [25]
and Plaintiffs’ Second Request for an Order to Show Cause [43]
In this Motion, Plaintiffs request that the Court refer Defendants for
criminal prosecution based upon the allegedly fraudulent assignment by MERS
of the mortgage. The Court has ruled that claims based on the assignment of
the Mortgage are barred by res judicata or collateral estoppel. Therefore, there
is no basis in this action for referral for criminal prosecution and Plaintiffs’
Motion [25] is DENIED.
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Motion for Financial Disclosure Statement of U.S. Magistrate Judge
Vineyard [26]
Asserting that Magistrate Judge Vineyard “may or may not have an
investment in the TIAA-CREF Retirement Fund,” Plaintiffs request that the
most recent Financial Disclosure Statement of Magistrate Judge Vineyard be
provided to Plaintiffs. Motion [26] at 1. As evidenced by Plaintiffs’ Motion to
Recuse the Undersigned [27], Plaintiffs are familiar with their right of access to
financial disclosure statements through the Administrative Office of the United
States Courts. A request that Judge Vineyard provide a report as a part of this
proceeding is not appropriate. Moreover, as stated supra., recusal would not be
required even if Judge Vineyard had an investment in the TIAA-CREF
Retirement Fund because such an investment would not qualify as a “financial
interest” under the recusal statute. 28 U.S.C. § 455. Therefore, the Motion [26]
is DENIED.
Motion to Dismiss Plaintiffs’ “Amendment to the Original Complaint” [29]
and Motion to Strike Amended Complaint [35]
Defendants move to dismiss/strike Plaintiffs’s Proposed Amended
Complaint [23]. Defendants point out that Plaintiffs fail to seek leave of Court
to file their Amended Complaint. Further, it appears that the claims that
Plaintiffs wish to add are futile. The first two claims are based on violations of
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Georgia criminal statutes that do not give rise to civil causes of action. Ga. ex.
rel. Saunders v. Mortg. Electronic Registration Sys., Inc., Civil Action No.
1:10-CV-3419-TWT-RGV, 2011 W.L. 1335824 *10 (N.D. Ga. March 11,
2011). As Defendants point out, even if the criminal statutes provided a private
cause of action, the allegations in the Amended Complaint would not support
that cause of action.
The final claim in the Amended Complaint appears to be an effort by
Plaintiffs to assert a claim under the Faire Debt Collection Practices Act
(“FDCPA”). However, the FDCPA “applies only to debt collectors and not to
creditors or mortgage servicers.” Hennington v. Green Point Mortg. Funding,
Inc., Civil Action No. 1:09-CV-676-RWS, 2009 W.L. 1372961, at *6 (N.D. Ga.
May 15, 2009). Plaintiffs fail to include allegations that would bring
Defendants under the FDCPA.
For the reasons asserted by Defendants, Defendants’ Motions [29 and 35]
are GRANTED.
Plaintiffs’ Motion to Admit Affidavit Testimony of Joseph R. Esquivel, Jr.
[52]
Plaintiffs move the Court to admit the Affidavit of Joseph R. Esquivel, Jr.
who has purportedly done research regarding Plaintiffs’ mortgage. Defendants

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object to the Affidavit as untimely and inadmissible. The Affidavit is clearly
untimely whether it is considered as a filing in conjunction with Plaintiffs’
Motion for Summary Judgment or in opposition to Defendants’ Motions to
Dismiss. On this ground alone, Plaintiffs Motion is due to the denied. The
Court notes that the Affidavit is also of questionable admissibility. Plaintiffs’
Motion [52] is therefore DENIED.
Plaintiffs’ Motion to Strike the Document Known as the “Assignment
From the Record” as Uncorroborated and Admissible Hearsay [53]
Plaintiffs move the Court to strike from the record the document referred
to as the “Assignment.” Once again, this is an effort by Plaintiffs to challenge
the validity of the assignment. As has been stated, this issue has previously
been litigated, and Plaintiffs’ assertions are barred by res judicata and collateral
estoppel. Therefore, Plaintiffs’ Motion [53] is DENIED.
Plaintiffs’ Request That the Court Take Judicial Notice of Defendants’
Failure to Prove They Own the Plaintiffs’ Mortgage [59]
In this Motion, Plaintiffs are urging the Court to require Defendants to
produce the original Note in order to proceed with foreclosure. However,
Courts have held that Georgia law does not require a lender commencing
foreclosure proceeding to produce the original note. Watkins v. Beneficial,
HSBC Mortg., Case No. 1:10-CV-1999-TWT-RGV, 2010 W.L. 4318898, at
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**11-12 (N.D. Ga. September 2, 2010, adopted at 2010 W.L. 4312878.
Therefore, Plaintiffs’ Motion [59] is DENIED.
Conclusion
Based on the foregoing, the findings and conclusions of the Report and
Recommendation [17] are adopted by the Court, and thus, Plaintiffs’
Emergency Request for Preliminary Injunction [14] is DENIED, Defendants’
Motions to Dismiss Plaintiffs’ Complaint [4 and 7] are GRANTED such that
all claims with respect to Defendant J.P. Morgan Chase Bank, N.A. are
DISMISSED WITH PREJUDICE, all claims against McCalla Raymer, LLC
and Wells Fargo Bank, National Association premised on Wells Fargo’s alleged
lack of standing to foreclose are DISMISSED WITH PREJUDICE, and to the
extent Plaintiffs have attempted to allege any claims against McCalla Raymer
and Wells Fargo premised under any other theory, those claims are
DISMISSED WITHOUT PREJUDICE; Plaintiffs’ Motion for Summary
Judgment [19] is DENIED; Plaintiffs’ Motion to Defer Ruling on Defendants’
Motions to Dismiss and Plaintiffs’ Motion for Summary Judgment [21] is
DENIED; Plaintiffs’ Motion for Appointment of Counsel [22] is DENIED;
Plaintiffs’ Second Emergency Motion for an Injunction [24] is DENIED;
Plaintiffs’ Motion for an Order to Show Cause Why This Court Should Not
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Refer Defendants’ Actions in This Case for Criminal Prosecution [25] is
DENIED; Plaintiffs’ Motion for Financial Disclosure Statement of U.S.
Magistrate Judge Vineyard [26] is DENIED; Plaintiffs’ Motion for Recusal and
Disqualification of Judge [27] is DENIED; Defendants’ Motion to Dismiss
Plaintiffs’ “Amendment to the Original Complaint” [29] is GRANTED;
Defendants’ Motion to Disregard Plaintiffs’ Surreply [34] is GRANTED;
Defendants’ Motion to Strike Amended Complaint [35] is GRANTED;
Plaintiffs’ Second Request for an Order to Show Cause [43] is DENIED;
Plaintiffs’ Motion to Admit Affidavit Testimony of Joseph R. Esquivel, Jr. [52]
is DENIED; Plaintiffs’ Motion to Strike the Document Known as the
“Assignment From the Record” as Uncorroborated and Admissible Hearsay
[53] is DENIED; and Plaintiffs’ Request That the Court Take Judicial Notice of
Defendants’ Failure to Prove They Own the Plaintiffs’ Mortgage [59] is
DENIED.
SO ORDERED, this 27th

day of March, 2013.

________________________________
RICHARD W. STORY
United States District Judge

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