Walker v. Georgia Bank & Trust of Augusta et al
Filing
15
ORDER granting Defendants' 5 Motion to Dismiss and 11 Motion to Dismiss; denying as moot Plaintiff's 9 Motion for Entry of Default; and, directing that the Clerk shall terminate all deadlines and motions and close this case. Signed by Judge J. Randal Hall on 11/3/2014. (jah)
IN THE UNITED
STATES DISTRICT COURT
FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
SAMUEL WALKER,
*
*
Plaintiff,
*
v.
*
GEORGIA BANK & TRUST OF AUGUSTA;
*
GOVERNMENT NATIONAL MORTGAGE
*
ASSOCIATION AS TRUSTEE FOR
CV 114-155
*
SECURITIZED TRUST GINNIE MAE
*
REMIC 2006-065;
*
GINNIE MAE;
CARRINGTON MORTGAGE SERVICES,
LLC;*
and MORTGAGE ELECTRONIC
*
REGISTRATION SYSTEMS,
*
INC.,
*
Defendants.
*
ORDER
This
matter
is
before
the
Court
on
Defendants
Carrington
Mortgage Services, LLC ("Carrington"), Government National Mortgage
Association as Trustee for Securitized Trust Ginnie Mae Remic 2006-
065,
Ginnie
inc.'s
Mae,
("MERS")
and Mortgage
(collectively,
Electronic
Registration
"Defendants")
Motion
Plaintiff Samuel Walker's ("Plaintiff") Complaint.1
Systems,
to Dismiss
(Doc. 5.)
Also
before the Court is Plaintiff's Motion for Default Judgment as to
Georgia Bank & Trust.
(Doc. 9.)
Plaintiff charges Defendants with
a litany of claims arising from his ownership of 3754 Bansbury
Place, Hephzibah, GA 30815, including wrongful foreclosure, fraud,
1
Georgia Bank & Trust filed a separate Motion to Dismiss (Doc. 11) that
"adopts all arguments made by the other Defendants in this case as set out in
their Motion and Brief dated July 23, 2014."
(Doc. 11 H 8.)
intentional infliction of emotional distress,
as
well
as violations
Ownership
and
Equity
of
the Truth in Lending Act
Protection
Settlement Procedures Act
allegations
appear
"unlawfully"
Act
("HOEPA"),
("RESPA") .
("TILA"),
and
The majority of
to be grounded in the theory
Real
Home
Estate
Plaintiff's
that Defendants
securitized his home loan and improperly split the
promissory note from the security deed.
foreclosure
and slander of title,
has
occurred,
and
on
Defendants respond that no
account
of
severe
pleading
deficiencies, Plaintiff fails to state any claim upon which relief
may be granted.
Defendants'
For the reasons set forth below, the Court GRANTS
Motions
to
Dismiss
(Doc.
5,
11)
and
DENIES
AS
MOOT
Plaintiff's Motion for Default Judgment as to Georgia Bank & Trust.
(Doc.
9.)
I.
FACTUAL BACKGROUND
On or about September 28, 2006, Plaintiff obtained a mortgage
loan
for
$198,000.00
("the
Loan")
from
Georgia
Bank
&
Trust,
secured by the property located at 3754 Bansbury Place, Hephzibah,
Georgia 30815
("the Note")
("the Property"), and evidenced by a Promissory Note
executed in favor of Georgia Bank & Trust and its
successors and assigns, promising to repay the Loan amount.
1,
Ex. A ("Compl."),
1129; Doc.
5, Ex. A ("Deed"), at 1-2.)2
Plaintiff also signed a Security Deed
MERS,
(Doc.
("the Deed")
in favor of
as nominee for Georgia Bank & Trust and its successors and
2
"The court may consider a document attached to a motion to dismiss
without converting the motion into one for summary judgment if the attached
document is (1) central to the plaintiff's claim and (2) undisputed," meaning
the "authenticity of the document is not challenged."
Day v. Taylor, 400
F.3d 1272, 1276 (11th Cir. 2005) (citations omitted).
assigns,
secure
granting
MERS
Plaintiff's
a
security
indebtedness
interest
under
the
in
the
Note.
Property
(Deed
at
to
2-3.)
The Deed granted MERS — as nominee for Georgia Bank & Trust and its
successors and assigns — and MERS' successors and assigns, power of
sale.
(Id.)
Trustee
for
Trust"),
(Compl.
The
Government
Securitized
is
the
Trust
current
National
Ginnie
beneficiary
Mortgage
Mae
REMIC
under
the
H 30; Defs.' Br., Doc. 5, at 2.)
servicer of the mortgage on December 3,
Association,
2006-065
Deed
as
("the
of
Trust.
Carrington became the
2013.
(Pi. Br.,
Ex. G.)
And while Plaintiff claims that Chase became the servicer in July
2014, the record indicates that Chase acquired the loan on July 1,
2014, but never replaced Carrington as the servicer.
6 Sc Ex.
F.)
The principal balance on Plaintiff's mortgage
approximately $175,273.22.
Plaintiff,
(Pi. Br. at
proceeding
is
(Doc. 8, Ex. E.)
pro
se,
filed
a
complaint
Defendants in the Superior Court of Richmond County,
against
Georgia,
on
May 19, 2014, asserting various claims under federal and state law.
After
service
of
the
the
complaint
action
to
in
the
this
Richmond
Court
on
County
July
16,
case,
Defendants
removed
2014.
(Doc. 1.)
Defendants now file a motion to dismiss on the grounds
that Plaintiff has to state an actionable claim for relief and has
failed to meet the requisite pleading standards of Federal Rules of
Civil Procedure 8 and 9(b).
II.
MOTION TO DISMISS
STANDARD
In considering a motion to dismiss under Rule 12(b)(6), the
court tests the legal sufficiency of the complaint, not whether the
plaintiff
Rhodes,
all
will
ultimately
416 U.S.
facts
232,
236
(1974) .
alleged in the
inferences in the
prevail
on
the
merits.
v.
The court must accept as true
complaint and construe
light most
Scheuer
favorable
all
reasonable
to the plaintiff.
See
Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002).
The
court, however, need not accept the complaint's legal conclusions
as true,
662,
only its well-pled facts.
678-79
A
Ashcroft v.
Iqbal,
556 U.S.
(2009) .
complaint
also must
"contain
sufficient
factual
matter,
accepted as true, *to state a claim to relief that is plausible on
its face.'"
Id^ at 678 (citing Bell Atl. Corp. v. Twombly,
U.S. 544, 570 (2007)).
550
The plaintiff is required to plead "factual
content that allows the court to draw the reasonable inference that
the defendant
is liable
for the misconduct alleged."
Id.
"The
plausibility standard is not akin to a 'probability requirement,'
but it asks for more than a sheer possibility that a defendant has
acted unlawfully."
Additionally,
"held
to a
less
Id.
when plaintiffs act pro se,
stringent
standard
than
the pleadings are
pleadings
attorneys and will, therefore, be liberally construed."
v.
United States,
148 F.3d 1262,
1263
(11th Cir.
drafted
by
Tannenbaum
1998).
"This
leniency, however, does not require or allow courts to rewrite an
otherwise
deficient
pleading
in
order
to
sustain
an
action."
Thomas v. Pentagon Fed. Credit Union, 393 F. App'x 635, 637
Cir.
2010) .
(11th
Indeed, pro se claimants have "no license to harass
others, clog the judicial machinery with meritless litigation, and
abuse already overloaded court dockets."
F.2d 386, 387 (11th Cir. 1988)
Patterson v. Aiken,
841
(internal quotation marks omitted).
III.
DISCUSSION
Plaintiff's Complaint fails to satisfy the pleading standards
to a degree the Court cannot reconcile.
First, Plaintiff provides
a 32-page, 152-paragraph laundry list of events, many of which are
irrelevant to Plaintiff's asserted claims and appear to be copied
or reworked from a "forensic audit" of his loan documents.3
In
instances such as this, the Eleventh Circuit does not require the
district
presented
court,
or
the
and decide
defendants,
for
[itself]
to
which were
particular cause of action asserted."
v.
Spear,
2002)
Leeds & Kellogg Corp.,
(citations omitted).
"sift through
the
material
facts
to
the
Strategic Income Fund, LLC
305 F.3d 1293,
1296
(11th Cir.
Although Plaintiff narrates the facts
of this case, he also interjects his opinions and makes vague and
conclusory allegations of wrongdoing by Defendants related to the
mortgage
at
issue,
the
securitization
of
the
mortgage,
the
assignment of the security deed, and thus asks this Court to find
the power of sale in the "Note and Mortgage/Deed of Trust" has no
3
In fact, this Court recently addressed an identical motion that was
filed in the Richmond County Superior Court on the same day, and ultimately
removed to this Court as well. See Goodridge v. Quicken Loans, Inc. et al.,
l:14-cv-155, Doc. 24 (S.D. Ga. Oct. 21, 2014).
force
and
fails
to
support
effect.
(Compl.
specify the
each
cause
^60.)
actions
of
556-57
(11th
Cir.
the
most
part,
in which each defendant
action.
dismissed on these grounds.
For
A
complaint
Plaintiff
engaged to
justifiably may
be
See Fullman v. Graddick, 739 F.2d 553,
1984).
Simply,
Plaintiff's
filings
are
equivalent to a "shotgun" pleading that has been soundly condemned
by
the
Eleventh
Circuit
Court
of
Appeals.
Thompson
RelationServe Media, Inc., 610 F.3d 628, 650 n.22
v.
(11th Cir. 2010).
Moreover, at the outset, the Court observes:
Plaintiff's allegations are remarkably similar to those
in
numerous
other
cases
that
have
been
filed
by
plaintiffs (often unrepresented) in an effort to delay,
prevent or even reverse foreclosures and dispossessory
actions.
Such lawsuits -
wherein the plaintiffs often
make
rambling,
incomprehensible
and/or
conclusory
allegations about mortgage industry practices such as the
securitization of mortgages, and the MERS assignment and
registration system, allege that the promissory note and
the security deed have been improperly "split" or
separated, and demand to see the promissory note - have
become commonplace.
Jorgensen v.
Fed.
Home Loan Mortg.
Corp.,
No.
2:12-CV-00236-RWS,
2013 WL 5200598, at *3 (N.D. Ga. Sept. 13, 2013)
(listing cases).
In this regard, even taking Plaintiff's pro se status into account,
the allegations before the Court facially appear to be frivolous.
Plaintiff
merely
echoes
the
unsound
theories
described
above,
namely that (1) Defendants have "unlawfully sold, assigned, and/or
transferred . . . [the] Promissory Note and Mortgage/Deed of Trust
related to the Property, and, thus, do not have lawful ownership or
a security interest in Plaintiff's Home" (Compl. 1 14);
(2) the
securitization of his home loan was unlawful (Id. HU 30-37, 44) ;
and
(3)
the
"assignment of
[the Deed]
without proper transfer of
the obligation that secures it" renders the transaction void
K 43) .
More comprehensibly,
Plaintiff alleges that Georgia Bank &
Trust sold him a deceptive product,
loan that he could not afford,
unjustly qualified him for a
and failed to explain to him
workings" of the entire loan transaction.
interest
of
thoroughness,
(Id.
the
Court
(Id.
M 51-55.)
nevertheless
turns
"the
In the
to
the
substance of Plaintiff's claims.
A.
Wrongful Foreclosure & Slander of Title (Counts I & V)
As previously noted,
Defendants did not initiate foreclosure
proceedings against the Property at issue in this case.
2.)
Georgia law requires a plaintiff seeking damages for wrongful
foreclosure to establish that the property at
sold at foreclosure.
968,
(Doc. 5 at
972
(11th Cir.
Jenkins v.
2012).
issue was actually
McCalla Raymer,
Accordingly,
LLC,
492 F. App'x
Plaintiff cannot state a
claim for wrongful foreclosure, and the Court DISMISSES Count I.4
4
To be sure, Georgia law also recognizes a cause of action for attempted
wrongful foreclosure when a foreclosure action was commenced but not
completed, and the plaintiff demonstrates that a defendant "knowingly
published an untrue
financial
and derogatory statement
concerning the plaintiffs'
conditions and that damages were sustained as a
direct
result."
Sale City Peanut & Milling Co. v. Planters & Citizens Bank, 130 S.E.2d 518,
520 (Ga. Ct. App. 1963); see also Morgan v. Ocwen Loan Servicing, LLC, 795 F.
Supp. 2d 1370, 1377 (N.D. Ga. 2011)
(citing cases).
Plaintiff's Complaint
avers that Defendants have "disparaged Plaintiff's exclusive valid title by
and
through
the
preparing,
posting,
documents previously described herein,
publishing,
including,
of
the
but not limited to,
and
recording
the
Notice of Default, Notice of Trustee's Sale, Trustee's Deed, and the
documents evidence the commencement of judicial foreclosure by a party who
does not possess that right."
(Compl. 1 104.) The Court does not accept as
true this boilerplate, conclusory assertion referencing documents that are of
no relevance to this case.
Plaintiff merely alleges that Defendants
"claim [ed] the right to foreclose on a property in which they have no right,
title, or interest" (id_;_ U 96) and "were not acting in good faith while
Plaintiff
Defendant
nevertheless
"disparaged
continues
Plaintiff's
through the preparing,
posting,
on
exclusive
publishing,
documents previously described herein,
to,
the
Deed,
Notice
and
Default,
documents
Notice
valid
the
title
by
each
and
and recording of the
including,
of
that
Trustee's
but not limited
Sale,
commencement
Trustee's
judicial
foreclosure by a party who does not possess that right."
(Compl.
As a result,
evidence
allege
of
H 104.)
the
of
to
Plaintiff asserts there is a cloud on his
title that has caused him unspecified damages, continuing expenses,
and "humiliation, mental anguish, anxiety" - among other feelings.
(Id.
1111
106-108.)
plaintiff
must
To sustain a claim for slander of title,
establish
that
published a slanderous work;
was malicious;
(4)
(1)
the
defendant
(2) the work was false;
uttered
and
(3) the work
plaintiff possessed an estate in the property
slandered; and (5) plaintiff sustained special damages.
Thomas,
a
Amador v.
578 S.E.2d 537, 540 (Ga. Ct. App. 2003).
Plaintiff fails to meet many of the elements of his slander of
title claim,
and the failure to sufficiently allege any one of
those elements is fatal.
For example, Plaintiff bases his claim on
the recordation of a "Notice of Default, Notice of Trustee's Sale,
and Trustee's
Deed;"
however,
none of these documents
recorded with regard to the Property.
Slanderous
have been
"publication"
attempting to collect on the subject debt" (id^ 1 98), but he alleges no
facts in support of his argument that Defendants possessed any knowledge of
any falsity or how Plaintiff has sustained any damages as a result of any
"publication."
(Id. %104.)
To the extent, therefore, that Plaintiff seeks
to state a claim for wrongful attempted foreclosure, the Court DISMISSES it
too.
8
does
not
occur
under
the
law
until
person other than the impugned party."
added);
Roberts v.
Moreover,
the
Lane,
it
is
communicated
O.C.G.A. § 51-5-3
435 S.E.2d 227,
228
(Ga.
any
(emphasis
App.
1993).
Plaintiff alleges no facts to support his argument that
information
contained in any Notice
Sale is false and malicious.5
of
Default
or Notice of
(See Compl. HI 104, 105.)
the Deed's express terms require such notice.
22.)
Ct.
"to
In fact,
(Deed at 12-13, 1
Falsity based solely on Plaintiff's misguided theories of
"unlawful"
securitization and
"separation of the note"
which the Court addresses in depth below in Part III.D insufficient
DISMISSES
B.
as
a
matter
of
law.
The
Court
— both of
is simply
therefore
also
Count V.
Fraud
Plaintiff
(Counts II & III)
alleges
Defendants
defrauded
him
when
they
"concealed" the securitization of the Loan and failed to disclose
"that Borrower's loan changed in character" by being "included in a
pool with other notes."
(Compl. 1 76.)
He further alleges that an
unspecified defendant intentionally misrepresented to him that the
successors and assigns of the Deed "were entitled to exercise the
power of sale provision."
5
Although Plaintiff's
(Id^ 1 85.)
Complaint
references
Finally,
a
in conclusory
Notice of Default
and
Notice of Trustee's Sale, neither of these documents have been provided to
the Court.
(See Compl. 1 104.) Nor is it clear to the Court at this time based on the parties' motions, briefs, and exhibits - whether any Notice of
Default has been given to Plaintiff at all.
(See Doc. 8, Ex. E (letter
responding to Plaintiff's "Qualified Written Request" that says if payments
are past due, default has occurred).)
fashion,
Plaintiff alleges that
a defendant
all
averments
of
fraud
or
to disclose
(Id. U 87.)
the material terms of the transaction."
"[I]n
"fail[ed]
mistake,
the
circumstances
constituting fraud or mistake shall be stated with particularity."
Fed.
R.
Civ.
plaintiffs
P.
in
9(b).
To
Georgia
sufficiently plead
must
establish
representation by a defendant,
five
scienter,
LLC, No.
2011)
and damage to plaintiff."
l:ll-CV-2747,
for
elements:
fraud,
"a
false
justifiable reliance by
Kabir v.
2011 WL 4500050,
claim
intention to induce the
plaintiff to act or refrain from acting,
plaintiff,
a
at *6
Statebridge Co.,
(N.D. Ga. Sept.
27,
(quoting Baxter v. Fairfield Fin. Servs., 704 S.E.2d 423, 429
(Ga. Ct. App. 2010)).
This rule alerts defendants to the precise
misconduct with
they are charged and protects
against
which
spurious charges of
Barclay's Nominees,
No.
Fla. Sept. 30, 2008)
fraudulent behavior.
04-60897,
2008 WL 4601043,
defendants
Steinberg v.
at *11
(S.D.
(citing Brooks v. Blue Cross Blue Shield of
Fla., Inc., 116 F.3d 1364, 1370-71 (11th Cir. 1997)).
The Eleventh
Circuit has further held that compliance with Rule 9 (b) requires a
complaint to set forth the following: (1) precisely what statements
were
made
omissions
in
what
were made,
documents
and
(2)
or
oral
representations
or
what
the
time
and place of each such
statement and the person responsible for making (or, in the case of
omissions, not making) same, and (3) the content of such statements
and the manner in which they misled the plaintiff, and (4) what the
10
defendants obtained as a consequence of the fraud.
4500050,
2011 WL
at *6.
Plaintiff's
Complaint
is
insufficient
heightened pleading standard outlined above.
any
Kabir,
precise
statements
those statements,
that
were
He
which
satisfy
fails
the
to allege
defendant(s)
made
where they were made, how the statements caused
him to enter the loan agreement,
consequence.
made,
to
Instead,
or how Defendants benefitted as a
he generalizes that Defendants "concealed"
the securitization, which purportedly was "intended to induce" him
to enter the Loan,
concealment.
and Defendants ultimately "profited"
(Compl. M
from this
16> 1Q> 81-)
Even if sufficiently pled, Plaintiff's theory that Defendants'
failure to inform him that the Loan may be securitized and sold in
any number of pieces entitles them to relief is without merit.
The
Court is unaware of any legal authority - and Plaintiff provides
none - supporting the proposition that the securitization of a debt
insulates a debtor
from foreclosure or relieves a debtor of the
obligation to repay.
See Tonea v. Bank of Am., N.A, No. 1:13-CV-
1435-WSD, 2014 WL 1092348, at *3 (N.D. Ga. Mar. 18, 2014); Montoya
v.
Branch
Banking
&
Trust
Co.,
No.
1:11-CV-01869-RWS,
2012 WL
826993, at *6 (N.D. Ga. Mar. 9, 2012); Searcy v. EMC Mortg. Corp.,
No.
l:10-CV-0965-WBH,
slip op.
at 2 (N.D.
Ga.
Sept.
30,
2010)
("While it may well be that Plaintiff's mortgage was pooled with
other loans
investors,
into a securitized trust
that
then issued bonds to
that fact would not have any effect on Plaintiff's
11
rights and obligations with respect
certainly
payments
would
or
not
absolve
somehow
to the mortgage
Plaintiff
shield
from
loan,
having
Plaintiff's
to
and it
make
loan
property
from
foreclosure.") .
Plaintiff's
misrepresented"
claims
that
Defendants
"intentionally
who was entitled to exercise the power of
sale
(Compl. H 84) and who was the ultimate holder of the Note and/or
Deed
there
(Id.
is
appears
1 86)
no
suffers from the same gross pleading deficiencies:
"who,
what,
when,
where,
and
how."
to the Court that Plaintiff grounds
fundamental misunderstanding of the law.
Moreover,
these claims
it
in a
Plaintiff freely executed
the Deed, which expressly granted MERS, its subsequent successors,
and its assigns "the right to foreclose and sell the Property."
(Deed at 2-3.)
To the extent Defendants may have made fraudulent -
or even merely confusing - oral representations about the power of
sale above and beyond the express language in the Deed, Plaintiff
does not allege them.
Plaintiff
does
allege
Defendants
made
fraudulent
representations when they "were attempting to collect on a debt
which they have no legal, equitable, or pecuniary interest in" on
account of secondarily assigning or selling "the mortgage loan" to
the Trust.
(Compl. Ml 34, 86.)
grounds in the law.
This too, substantively, has no
Even if Defendants are not the "*holder and
owner' of the Note" and had no beneficial interest in Plaintiff's
debt obligation despite representing so, they still have the right
12
to
exercise
the power of
sale pursuant
You v. JP Morgan Chase Bank, N.A.,
Plaintiff's claims for fraud
also DISMISSED as a
C.
The
matter of
to the
terms
743 S.E.2d 428,
of
433
(Counts II & III),
(Ga. 2013).
therefore,
are
law.
Intentional Infliction of Emotional Distress
(Count IV)
Complaint
the Deed.
alleges
"Plaintiff
has
("IIED")
experienced
many
sleepless nights, severe depression, lack of appetite, and loss of
productivity at its place of employment" and is "living under [a]
constant emotional nightmare"
because Defendants have "threatened
[him] with the loss of the Property."
According to Plaintiff,
recklessly"
created
bounds . . . usually
(Compl. M
93, 98, 100-101).
Defendants "intentionally, knowingly,
this
tolerated
"outcome,"
in a
which
civilized
"exceeds
society"
and
all
because
Defendants allegedly do not have any right, title, or interest in
the Property.
(IcL H
94-96.)
To prevail on an IIED claim under Georgia law a plaintiff must
allege, and ultimately provide evidence for, conduct that was (1)
intentional or reckless;
(2)
extreme or outrageous;
cause of severe emotional distress.
519 S.E.2d 15,
whether the
17
conduct
(1999) .
(3)
the
United Parcel Serv. v. Moore,
"The rule of
complained of
and
was
thumb in determining
sufficiently extreme and
outrageous is whether the recitation of the facts to an average
member of the community would arouse her resentment against the
defendant so that she would exclaim *
Outrageous!'" Id^
13
The conduct
must be deemed extreme by a reasonable person,
be
is a question of
Bell,
law
741
679 S.E.2d 739,
Generally,
breach
of
(Ga. Ct. App.
Id. ; Blue View Corp.
Serv.,
Indeed,
foreclosures,
as
stringent.
For
are
519
in
generally
not
S.E.2d at
the
area
17
of
extreme
(emphasis
debt
neither
or
even if in
outrageous.
added)(citations
collection
in any other context,
instance,
v.
2009).
"[s]harp or sloppy business practices,
contract,"
United Parcel
omitted) .
for the court.
and whether it would
and
mortgage
a plaintiff's burden
"threatening
language"
is
nor
collecting on a debt that has already been paid goes "beyond all
bounds of decency" so as to state a claim.
Smith-Tyler v. Bank of
Am., N.A., 992 F. Supp. 2d 1277, 1282-83 (N.D. Ga. 2014); Cook V.
Covington Credit of Ga.,
Inc.,
660 S.E.2d 855,
858 (Ga. Ct. App.
2008) .
This pleading is thus deficient on its face since it provides
the Court with no plausible grounds on which to reasonably infer
Defendants
are
liable
for
IIED.
See
Igbal,
556
U.S.
at
678.
Plaintiff's conclusory allegations are nothing more than a recital
of the IIED elements with no specific factual allegations.
Even if
the facts had been alleged with more specificity, as a matter of
law
these
facts
do
not
indicate
Defendants
are
liable.
No
reasonable person would believe Defendants' actions were extreme or
outrageous.
As previously explained, Defendants have a legitimate
reason to believe they could pursue foreclosure upon Plaintiff's
default according to the terms of the Deed, though they have yet to
14
do so.
Thus,
Plaintiff's only argument is that Defendants engaged
in "outrageous or reckless conduct" by telling Plaintiff they could
exercise the power of sale provision, an express term of the Deed.
And
while
the
Court
understands
that
Plaintiff's
financial
situation may be stressful, he presents no evidence that Defendants
acted with "the specific intent of inflicting emotional distress."
(Compl. H 97.)
D.
Consequently, the Court DISMISSES Count IV.
Lack of Standing and/or Invalid Assignment (Counts VI,
VII
&
Several of
X)
Plaintiff's claims rest on the
arguments that
(1)
Defendants do not hold the promissory note and therefore do not
have standing to exercise the power of sale; (2) the Deed is void
because it was improperly "split" from the Note; or (3) MERS did
not have authority to assign the Deed and violated the "Pooling and
Servicing Agreement" in doing so.
Courts have repeatedly rejected
these claims,
and each argument is wholly unsupported by Georgia
law.
v.
Tonea
Bank
of
Am.,
N.A. , No.
1:13-cv-1435,
2014
WL
1092348, at *3 (N.D. Ga. Mar. 18, 2014) (rejecting the plaintiff's
argument that MERS did not have the authority to assign his
mortgage because "MERS [was] the grantee under the security deed,
to which Plaintiff expressly agreed");
Menyah v.
BAC Home Loans
Servicing, LP, No. 1:12-CV-0228-RWS, 2013 WL 1189498, at *3 (N.D.
Ga. Mar. 21, 2013) (finding the plaintiff lacked standing to attack
the assignment between MERS and the defendant because the plaintiff
was not a party to the contract); Milburn v. Aegis Wholesale Corp.,
15
No.
1:12-CV-01886-RWS,
2 013)
2013
WL
1136983,
at
(N.D.
Ga.
(explaining that "as a stranger to the Assignment,
lacks standing to challenge it"); Clarke v.
CO.,
*3
No.
l:12-CV-03383-JEC-RGV,
(N.D. Ga. Mar. 4, 2013)
2013 U.S.
Mar.
18,
Plaintiff
Branch Banking & Trust
Dist.
LEXIS 49875,
at *22
(noting that the plaintiff's "claim appears
to be an attempt to repackage a
xproduce the note'
argument that
has been repeatedly rejected by this court, and is therefore due to
be
dismissed");
RWS,
LaCosta v.
2011 WL 166902,
McCalla Raymer,
at *5-6
(N.D. Ga.
LLC,
Jan.
No.
18,
1:10-CV-1171-
2011)
(rejecting
plaintiff's wrongful foreclosure claim based on "splitting" of note
and security deed and finding
that holder of
security deed was
authorized to exercise power of sale) ; You v. JP Morgan Chase Bank,
N.A. ,
743
S.E.2d
428,
433
(Ga.
2013)
(holding
"[u]nder
current
Georgia law, the holder of a deed to secure debt is authorized to
exercise the power of sale in accordance with the terms of the deed
even
if
it
does
not
also
hold
the
note
or
otherwise
have
any
beneficial interest in the debt obligation underlying the deed")
(emphasis added).
The
Court
therefore
DISMISSES
Plaintiff's
claims
for
quiet
title (Count VI),6 declaratory judgment (Count VII), and rescission
6
Plaintiff's pleading fails to satisfy the statutory requirements for a
quiet title action under Georgia law. The Georgia Quiet Title Act, O.C.G.A.
§ 23-3-60 et seg., provides specific procedural prerequisites to pleading a
quiet title action. A plaintiff must file (1) a plat of survey of the land,
(2) a copy of the immediate instrument or instruments, if any, upon which the
petitioner's interest is based, and (3) a copy of the immediate instrument or
instruments of record or otherwise known to the petitioner,
which any person might
base
an interest
in the
if any,
land adverse
to
upon
the
petitioner. O.C.G.A. § 23-3-62(c). At minimum, Plaintiff failed to attach
to the Complaint and subsequent filings a plat as required by statute, and
16
(Count X),7 all of which seek either injunctive relief or damages
based on the flawed legal theories described above.
E.
TILA,
Lastly,
HOEPA,
and RESPA (Counts VIII & IX)
Plaintiff
seeks
relief
Defendants'
violation of TILA,
HOEPA,
failed
him with "accurate material
to provide
failed to " [take]
and RESPA.
for
Plaintiff claims Defendants
and
which was to fully inform home buyers of the
pros and cons of adjustable rate mortgages."
(Compl. H 133.)
Plaintiff "lost substantial equity,"
to refinance
disclosures"
into account the intent of the State Legislature
in approving [TILA]
a result,
alleged
their
[sic]
home or to obtain
"were
[sic]
As
unable
any modification of
their [sic] loan, which has resulted in Plaintiff being permanently
burdened by the fraudulent loan made by defendants."
136.)
Pursuant to RESPA,
(Id. Ml 135,
Plaintiff further alleges that
"[t]he
interest and income that Defendants have gained is disproportionate
to the situation Plaintiff find themselves [sic] in due directly to
Defendant's
failure to disclose that they will gain a financial
benefit while Plaintiff suffer [sic] financially."
(Id^ 1 144.)
Plaintiff again fails to plead his claims with sufficient
particularity to provide fair notice to any defendant in this case
therefore his quiet title petition is subject to dismissal.
Montova v.
Branch Banking & Trust Co., No. 1:11-CV-01869-RWS, 2012 WL 826993, at *3
(N.D. Ga. Mar. 9, 2012); GHG, Inc. v. Bryan, 566 S.E.2d 662, 662 (Ga. 2002)
("A petition [to quiet title] is subject to dismissal only when on the face
of the pleadings it appears that it is in noncompliance with OCGA § 23-362 ." ) .
7
As discussed in Part III.E, infra, Plaintiff's claim for rescission, in
so far as it is based on TILA violations, also fails based on the statute of
limitations.
17
of what
claims
the
statutory claims
rest.
Conclusory
are and the grounds upon which the
allegations
that
Defendants
(1)
"disproportionate income" or "creat[ed]
a windfall"
(Id.
(2)
RESPA,
(3)
gained
violated
the
whole
of
TILA
and
and
U 146),
provided
inaccurate, false or incomplete disclosures all fail to assert the
necessary facts to "raise a right to relief above the speculative
level."
Twombly,
550 U.S.
at 555.
Even if the Complaint was pled correctly, however, Plaintiff's
claims are barred by the statute of limitations.
All civil actions
arising under TILA must be brought within one year of the date of
the
violation
and
actions
for
rescissions
under
TILA
must
brought within three years of the closing of the loan.
U.S.C.
§ 1640(e),
1635(f).
Similarly,
claims
under
subject to either a one or three year statute of
depending on the alleged violation.
See 15
RESPA
are
limitations,
See 12 U.S.C. § 2614.
the closing date of the Loan was on September 28,
be
2006,
Here,
nearly
eight years from the date of the Complaint.
For these reasons,
the Court also DISMISSES Counts VIII and
IX.
IV.
CONCLUSION
The Eleventh Circuit Court of Appeals has held that where a
"more carefully drafted complaint might state a claim," the court
must allow a pro se plaintiff "at least one chance to amend the
complaint before the district court dismisses the action with
18
prejudice," unless amendment would be futile.
510 F.3d 1307,
1112
1310
(11th Cir.
(11th Cir.
1991).
A
2007);
more
Plaintiff's
inconsistencies,
claims,
Bank v.
Pitt,
carefully drafted
not state a claim in this case.
support
Cockrell v.
928 F.2d 1108,
complaint
It is utterly devoid of
and
the
Sparks,
incoherencies,
would
facts to
internal
and irrelevant attachments fail to demonstrate the
plausibility of those claims.
For the reasons set forth above,
therefore, the Court hereby GRANTS Defendants' Motions to Dismiss.
(Doc.
5,
11.)
PREJUDICE.
All
of
Plaintiff's
claims
are
DISMISSED
WITH
The Court therefore DENIES AS MOOT Plaintiff's "Motion
for Default Judgment."
(Doc. 9.)
The Clerk SHALL terminate all
deadlines and motions and CLOSE this case.
r,
ORDER
November,
ENTERED
at
Augusta,
Georgia,
this
day
2014.
HONORABLE J. RANDAL HALL
STATES DISTRICT JUDGE
DISTRICT OF GEORGIA
19
of
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