Borges v. The Bank of New York Mellon et al
Filing
17
ORDER AND OPINION denying without prejudice defendants Motion to Dismiss 11 . Plaintiff is directed to confirm that she is dismissing all defendants, except Bank of New York Mellon, by Monday, April 7, 2014. Signed by Judge Julie E. Carnes on 3/27/14. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DEBORAH A. BORGES,
Plaintiff,
CIVIL CASE NO.
v.
1:13-cv-02623-JEC
THE BANK OF NEW YORK MELLON, as
trustee for CWABS Asset Backed
Certificates
Trust
2006-6,
CITIZENS FIDELITY MORTGAGE CORP.,
MERSCORP HOLDINGS, INC., MORTGAGE
ELECTRONIC REGISTRATION SERVICES,
INC.,
BANK
OF
AMERICA
CORPORATION, BANK OF AMERICA,
N.A., BARRETT DAFFIN FRAPPIER
LEVINE & BLOCK, LLP, and JOHN Q.
ATTORNEYS 1-6,
Defendants.
ORDER & OPINION
This case is before the Court on defendants’ Motion to Dismiss
Plaintiff’s Complaint [11] and plaintiff’s Motion to Remand [13].
The Court has reviewed the record and the arguments of the parties
and, for the reasons that follow, concludes that defendants’ Motion
to Dismiss [11] should be DENIED WITHOUT PREJUDICE.
BACKGROUND
This case arises out of an allegedly wrongful foreclosure.
On
October 30, 2003, plaintiff obtained a loan from Fremont Investment
& Loan in the principal amount of $226,400.00 (the “Fremont loan”)
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(Rev.8/82)
for the purpose of purchasing a house located at 3156 Esplanade
Circle, Atlanta, Georgia 30311.
On February 26, 2006, plaintiff
refinanced the Fremont loan through execution of a note in favor of
Citizens Fidelity Mortgage Corporation (“Citizens Fidelity”) in the
principal amount of $280,800.00 (the “Citizens Fidelity loan”).
(Notice of Removal [1] at Ex. A, at 36-40.)
To secure the Citizens Fidelity loan, plaintiff executed a
security deed in favor of Mortgage Electronic Registration Systems,
Inc. (“MERS”), as nominee for Citizens Fidelity and its successors
and assigns, under which she pledged the Esplanade Circle property as
collateral.
(Id. at 42-54.)
On July 8, 2011, MERS transferred the
security deed to the Bank of New York Mellon, as trustee for the
CWABS Asset-Backed Certificates Trust 2006-06 (“Bank of New York
Mellon”).
(Id. at 65.)
At some point in 2008 or 2009, plaintiff experienced difficulty
making her loan payments.
(Notice of Removal [1] at Ex. A, ¶ 39.)
In an effort to reduce her monthly obligation plaintiff sought a
modification from the servicer of her loan, BAC Home Loans Servicing,
LP (“BAC”), which placed plaintiff in a trial payment plan in late
2009. (Id. at 39, 55-60.) Despite complying with the conditions set
forth by BAC and receiving assurances from its employees that her
modification was approved, plaintiff never received a permanent loan
modification.
(Id. at ¶¶ 41-48.)
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Instead, on August 2, 2011, Barrett Daffin Frappier Levine &
Block, LLP (“Barrett Daffin”) mailed a letter to plaintiff on behalf
of Bank of America, N.A. (“Bank of America”)1 notifying her that it
was
initiating
foreclosure
procedures
on
the
Esplanade
Circle
property as a result of her default on the Citizens Fidelity loan.
(Id. at 67-68.)
Barrett Daffin conducted a foreclosure sale on
September 6, 2011, at which Bank of New York Mellon took title to the
Esplanade Circle property by deed under power.
(Notice of Removal
[1] at Ex. A, at 65.)
Plaintiff filed the present suit in the Superior Court of Fulton
County.
(Notice of Removal [1] at Ex. A.)
Thereafter, defendants
Bank of New York Mellon, MERSCORP Holdings, Inc., MERS, Bank of
America Corporation, and Bank of America removed the action to this
Court on August 8, 2013.
(Notice of Removal [1].)
filed a motion to dismiss.
Defendants then
(Mot. to Dismiss [11].)
Plaintiff then
moved to remand the action to state court, arguing that there was no
subject matter jurisdiction.
I.
(Mot. to Remand [13].)
PLAINTIFF’S MOTION TO REMAND
Defendants removed plaintiff’s action to this Court on the basis
of diversity jurisdiction.
U.S.C. §§ 1332, 1446.
(Notice of Removal [1] at ¶¶ 22-27); 28
In so doing, they acknowledged that the
1
BAC merged with Bank of America on July 1, 2011.
Support of Mot. to Dismiss [11] at 3 n.4.)
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(Br. in
presence of defendant Citizens Fidelity and defendant Barrett Daffin
raises the question whether complete diversity exists.
Removal [1] at ¶¶ 17-19.)
Georgia
and,
citizenship
of
while
all
(Notice of
Indeed, Citizens Fidelity is a citizen of
defendants
members
were
of
unable
Barrett
to
Daffin–a
determine
Texas
the
limited
liability partnership--it is likely that there are partners in the
firm whose presence would defeat diversity, as it is a “local agent”
with offices in Georgia.
(Id.; Notice of Removal [1] at Ex. A, ¶ 8.)
However, in their Notice of Remand, defendants argue that Citizens
Fidelity and Barrett Daffin are fraudulently joined or are nominal
parties, such that the Court can ignore their presence for purposes
of diversity jurisdiction.
(Id. at ¶¶ 17-19, 21.)
Plaintiff’s Motion to Remand expresses no disagreement with
defendants’
fraudulent
joinder
argument,2
and
even
states
that
plaintiff filed a motion dismissing all defendants, except Bank of
New York Mellon from the action.
The problem though is that
plaintiff never actually filed such a motion.
at 2 n.1; see also Resp. [14] at 1 n.1.)
(Mot. to Remand [13]
Thus, it is unclear against
which defendants, exactly, plaintiff wishes to proceed, and that is
an important diversity analysis.
2
Plaintiff’s basis for remand is instead based on an argument
that the amount in controversy does not reach the statutory
threshhold.
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Given
plaintiff’s
comments
concerning
defendant
Citizens
Fidelity or Barrett Daffin, the Court assumes that plaintiff is
conceding that these parties are fraudulently joined or are otherwise
nominal
parties,
and
jurisdiction purposes.
should
not
be
considered
for
diversity
But, given the importance of subject matter
jurisdiction and the unresolved issue of what parties plaintiff
wishes to proceed against, it is prudent to firm up which defendants
plaintiff is dismissing from the action and which defendants she
wants to retain. Accordingly, plaintiff is hereby ORDERED to confirm
whether she is dismissing all defendants, except Bank of New York
Mellon.
The Court refrains from ruling on plaintiff’s Motion to
Remand [13] until this question is resolved.
II.
DEFENDANT’S MOTION TO DISMISS
Because the above question regarding the removal of plaintiff’s
complaint to this Court and plaintiff’s Motion to Remand [13] is
unresolved, the Court DENIES WITHOUT PREJUDICE defendants’ Motion to
Dismiss [11].
Should the Court deny plaintiff’s motion to remand,
defendant may refile a motion to dismiss within twenty-one days
thereafter.
CONCLUSION
For the above reasons, defendants’ Motion to Dismiss [11] is
DENIED WITHOUT PREJUDICE.
Plaintiff is ORDERED to confirm that she
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AO 72A
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is dismissing all defendants, except Bank of New York Mellon, by
Monday, April 7, 2014.
SO ORDERED, this 27th day of March, 2014.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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