THOMAS W. THRASH, Jr., District Judge.
This is an action for wrongful foreclosure. It is before the Court on the Defendant Rubin Lublin's Motion for Judgment on the Pleadings [Doc. 6]; the Defendants Countrywide Home Loans Servicing, L.P.; HSBC Bank USA, N.A.; MERS; and Nomura Home Equity Loan, Inc. Asset-Backed Certificates Series 2005-FM1's Motion for Leave to File Excess Pages [Doc. 9]; the Defendants Countrywide Home Loans Servicing, L.P.; HSBC Bank USA, N.A.; MERS; and Nomura Home Equity Loan, Inc. Asset-Backed Certificates Series 2005-FM1's Motion to Dismiss [Doc. 10]; and the Plaintiff's First Motion for Extension of Time to Respond [Doc. 16].
On September 3, 2013, in the Superior Court of Fulton County, the Plaintiff, Khari Cummings, filed suit against the Defendants, Countrywide Home Loans Servicing, L.P.; HSBC Bank USA, N.A.; Mortgage Electronic Registration System; and Nomura Home Equity Loan, Inc. Asset-Backed Certificates Series 2005-FM1. The Defendants removed the suit to this Court on October 3, 2013, and filed the instant motions.
The Plaintiff never responded to the Defendant Rubin Lublin's Motion for Judgment on the Pleadings [Doc. 6] and the Court deems that motion unopposed.
On both a motion for judgment on the pleadings and a motion to dismiss, the Court accepts as true the facts alleged in the Plaintiff's complaint. The Plaintiff contends he has an "ownership interest" in property located at 5067 Windsor Forrest Lane, College Park, Fulton County, Georgia 30349.
The Property was placed in a Real Estate Mortgage Investment Conduit under the terms of a Pooling and Servicing Agreement.
The Security Deed recites that MERS is the nominee for Lender and Lender's successors and assigns and that MERS is the grantee under the Security Instrument. The Security Deed lists Fremont Investment & Loan as the Lender.
The Plaintiff alleges that the chain of title reflects no assignments from March 30, 2005 until May 12, 2010.
On July 1, 2010, the Transfer and Assignment of Deed was filed with the Clerk of the Superior Court of Fulton County.
In Count One of his complaint, the Plaintiff seeks a declaratory judgment that he is the sole owner of the Property and the foreclosure sale that occurred on September 6, 2011, should be declared null and void.
For clarification, the Plaintiff has attached to his complaint as Exhibit D a Transfer and Assignment of Deed to Secure Debt dated March 12, 2010. This Assignment states that MERS acting as nominee for Fremont Investment & Loan as Assignor has transferred to HSBC Bank USA, N.A., as Trustee for the Certificate Holders, Nomura Home Equity Loan, Inc. Asset-Backed Certificates Series 2005-FM1, as Assignee, all of the assignor's rights to the Deed to Security Debt.
Although not clear from the Plaintiff's complaint, the documents attached to his complaint demonstrate that a foreclosure sale was held on the Property on September 6, 2011, with HSBC Bank USA, N.A. as the high bidder. The Property was transferred to HSBC Bank USA, N.A. by Deed Under Power and recorded on October 27, 2011. The Property has since been transferred to Twin Cribs LLC via Warranty Deed signed on June 6, 2012, and recorded on August 29, 2012.
The Defendant Rubin Lublin contends that it is not a proper defendant to the Plaintiff's attempt to quiet title through a declaratory judgment action because Rubin Lublin has never claimed an interest in the Property. The Defendant Rubin Lublin also argues that the Plaintiff cannot pursue a quiet title action because the Plaintiff has not tendered the amount owed on the Property; the Plaintiff cannot show he is the owner of the Property which was deeded to HSBC Bank USA, N.A. in a foreclosure sale that has not been set aside; and the Plaintiff has not named the current owner of the Property in the quiet title action or attached a plat survey of the land. The Defendant Rubin Lublin also avers that it cannot be liable on the Plaintiff's wrongful foreclosure claim because it had no duty to the Plaintiff and the sale was properly conducted.
In their motion to dismiss, the Defendants Countrywide Home Loans Servicing, L.P.; HSBC Bank USA, N.A.; MERS; and Nomura Home Equity Loan, Inc. Asset-Backed Certificates Series 2005-FM1 argue that the Defendants did not breach any statutory foreclosure duty; the Plaintiff cannot show that any damages he suffered were as a result of any alleged breach by the Defendants; the Plaintiff cannot seek equitable relief because he has not tendered amounts owed under the loan; the Plaintiff lacks standing to challenge any assignments or pooling and servicing agreements; and the Plaintiff fails to properly allege a quiet title action.
The Plaintiff responds that he should be permitted to engage in discovery before the Court rules on the Defendants' motion to dismiss and motion for judgment on the pleadings. He notes that the Independent Foreclosure Review has determined that the Plaintiff is entitled to payments as a result of the agreement between federal regulators and Bank of America and this must be some indication of improprieties in his foreclosure. The Plaintiff alleges that mortgage procedures must be adhered to strictly.
In his response, the Plaintiff refers to documents from the federal Independent Foreclosure Review and an Affidavit of a "Certified Mortgage Securitization Auditor." Neither of these documents is referenced in nor attached to his complaint. On a motion to dismiss and motion for judgment on the pleadings, the Court is not permitted to go beyond the four corners of the Plaintiff's complaint. However, in the interest of judicial efficiency because even considering these documents does not give the Plaintiff any better outcome, the Court refers to them. The Plaintiff also recites a great deal of "factual background" in his response that was not alleged in his complaint. A party may not amend his complaint by means of legal briefing.
The Plaintiff states throughout his response that before ruling on the Defendants' motion to dismiss and motion for judgment on the pleadings, the Court should give him an opportunity to engage in discovery in order to substantiate his claims. However, a plaintiff is not "entitled" to discovery. A plaintiff must first file a complaint which states a legal claim before the door to discovery is opened. Under the Federal Rules of Civil Procedure, a plaintiff may not speculate as to a host of various improprieties that could potentially occur in any foreclosure process and then use that speculation to bootstrap a request for discovery.
The Plaintiff contends that the foreclosure sale that took place on September 6, 2011, is wrongful because the Defendants (a) failed to transfer and assign the Security Deed prior to publication of foreclosure, (b) listed the Property in the wrong municipality, (c) failed to validly record transfers and assignments for five years and (d) proffered documents with "other inaccuracies." In his response, however, the Plaintiff did not address any of the specific arguments raised by the Defendants in their motion for judgment on the pleadings and motion to dismiss as to why these claims fail.
Before reaching the merits of the Plaintiff's claim, the Court finds it fails for several procedural reasons. Georgia courts have consistently held that if a plaintiff seeks any kind of equitable declaratory relief, a tender must be made.
Furthermore, Georgia law is clear that a plaintiff cannot establish causation in a wrongful foreclosure case where a borrower fails to make mortgage payments because he cannot demonstrate that his alleged injury in foreclosure was caused by the lender's acts or omissions.
Finally, the Plaintiff raises a host of improprieties with respect to the Assignment from Fremont Investment & Loan to HSBC Bank USA, N.A. as Trustee for the Certificate Holders, Nomura Home Equity Loan, Inc. Asset-Backed Certificates Series 2005-FM1, including that the manner of Assignment violated the Pooling and Servicing Agreement. Georgia law is quite clear that an entity who is not a party to an assignment has no standing or authority to challenge that assignment.
In Edward v. BAC Home Loans Servicing, L.P.,
In any event, even if the Plaintiff could get past these procedural hurdles, his claims would fail on their merits. To set forth a claim for wrongful foreclosure, Georgia law requires a plaintiff establish a legal duty owed to it by the foreclosing party, a breach of that duty, a causal connection between the breach of that duty and the injury it sustained, and damages.
The Plaintiff alleges that the foreclosure is flawed because the Assignment from Fremont Investment & Loan to HSBC Bank USA, N.A. as Trustee for the Certificate Holders, Nomura Home Equity Loan, Inc. Asset-Backed Certificates Series 2005-FM1 was not filed until July 1, 2010, and foreclosure notices were published from April 9, 2010 through July 2, 2010. As an initial matter, the Court agrees with the Defendants that any claim for wrongful attempted foreclosure based on the 2010 notices would be untimely. The statute of limitations for such claims is two years and the Plaintiff did not file his complaint until September 2013. Furthermore, the Plaintiff's claim also fails on the merits. O.C.G.A. § 44-14-162(b) states the "security instrument or assignment thereof vesting the secured creditor with title to the security instrument shall be filed
The Plaintiff also alleges that the foreclosure was wrongfully noticed and the sale chilled because the address listed on the foreclosure stated Atlanta, Georgia and not College Park, Georgia. Under Georgia law,
Significantly, the Plaintiff does not point to any particular document or offer any reason why College Park is the "proper" address and Atlanta is not. Moreover, the Security Deed itself lists Atlanta, Georgia as the address.
O.C.G.A. § 9-13-140(a) provides:
Thus, by statute, Georgia law provides that even if the street address listed on the foreclosure is incorrect, that does not render the foreclosure invalid. Listing the address as Atlanta, Georgia and not College Park, Georgia therefore would not invalidate the foreclosure on its own.
In the alternative, the Plaintiff has offered nothing more than speculation that the correct zip code with a town listed as Atlanta as opposed to College Park would somehow chill the foreclosure sale. While Georgia law does require that the power of sale must be executed "fairly" and a breach of this duty can give rise to a claim for damages, such a claim "may lie only when the price realized is grossly inadequate
Finally, the Plaintiff contends that he received $300 from the Independent Foreclosure Review and this somehow proves that the foreclosure was wrongful. The Independent Foreclosure Review was established as a part of a consent order signed between Bank of America and the Office of the Comptroller of the Currency. Courts have held that any consent orders signed between the Office of the Comptroller of the Currency and Bank of America and/or MERS do not contain a private right of action.
Georgia recognizes both a "conventional quia timet" action which addresses deficiencies in specific documents which might cloud title, see O.C.G.A. § 23-3-40, as well as a quia timet which attempts to perfect title "against all the world."
For the reasons set forth above, the Court GRANTS the Defendant Rubin Lublin's Motion for Judgment on the Pleadings [Doc. 6]; GRANTS the Defendants Countrywide Home Loans Servicing, L.P.; HSBC Bank USA, N.A.; MERS; and Nomura Home Equity Loan, Inc. Asset-Backed Certificates Series 2005-FM1's Motion for Leave to File Excess Pages [Doc. 9]; GRANTS the Defendants Countrywide Home Loans Servicing, L.P.; HSBC Bank USA, N.A.; MERS; and Nomura Home Equity Loan, Inc. Asset-Backed Certificates Series 2005-FM1's Motion to Dismiss [Doc. 10]; and GRANTS the Plaintiff's First Motion for Extension of Time to Respond [Doc. 16].
The Clerk of the Court is DIRECTED to DISMISS WITH PREJUDICE Plaintiff's complaint.
SO ORDERED.
In his response, the Plaintiff attaches the affidavit of Bobby Jo Alexander-Lister, a "Certified Mortgage Security Auditor." Ms. Alexander-Lister discusses a host of alleged improprieties with respect to the assignment and pooling documents in this case. Ms. Alexander-Lister's affidavit recasts the same arguments repeatedly made by owners in an attempt to forestall foreclosure. It is replete with erroneous statements of law and wholly unhelpful to a resolution of the case. It is not surprising, therefore, that numerous consumer protection agencies, as well as state Attorneys General and the Federal Trade Commission have issued consumer alerts warning homeowners not to fall prey to the scam of "forensic loan auditors." Nothing in Ms. Alexander-Lister's affidavit identifies a cause of action for the Plaintiff.
