WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Plaintiff Julianne Sabrina Morrison's ("Plaintiff") Motion for Reconsideration [17] of the Court's December 16, 2013, Order [15] dismissing this action for failure to state a claim.
On January 7, 2004, Plaintiff
On March 15, 2011, BANA assigned its interest in the Security Deed ("Assignment") to BAC Home Loans Serving, LP ("BACHLS"). (Assignment [1.1 at 52]).
On July 1, 2011, BACHLS merged with its parent company, BANA.
At some point, Plaintiff defaulted on her loan obligations. Plaintiff asserts that she "suspended" payments because Defendant "failed to properly identify the person that is the holder in due course of legal title or the ability to enforce the note under O.C.G.A. § 11-3-309." (Compl. ¶ 10).
On August 23, 2011, BANA filed a complaint in the Superior Court of DeKalb County, Georgia, seeking to have declared invalid an affidavit and an "Appointment of Successor Trustee/Notice of Correction" filed by Plaintiff in the DeKalb County, Georgia Property Records. (Pl's Resp. [11] at 2). On June 6, 2012, the DeKalb County Superior Court granted default judgment for BANA and declared that Plaintiff's filings were void and that the Security Deed is valid and enforceable. (
On September 27, 2012, Plaintiff filed a petition for relief under Chapter 7 of the Bankruptcy Code. (
On March 1, 2013, Plaintiff filed her Complaint [1.1 at 1-12] and Motion for TRO [1.1 at 34-44] in the Superior Court of DeKalb County, Georgia. Construing Plaintiff's pro se pleadings liberally and as a whole, Plaintiff appears to assert that foreclosure would be wrongful because Defendant lacks standing to foreclose on the Property, that Defendant violated the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692
On April 1, 2013, BANA removed the DeKalb County action to this Court based on diversity jurisdiction [1].
On April 8, 2013, BANA moved to dismiss Plaintiff's Complaint for failure to state a claim [7].
On October 11, 2013, Plaintiff moved for entry of default against Defendant for failure to timely file its answer [13].
On December 16, 2013, the Court granted BANA's Motion to Dismiss. The Court found that Plaintiff did not, and could not, state a claim for wrongful foreclosure against BANA, including because Plaintiff acknowledged that she is not current on her obligations. The Court also found that BANA was entitled to foreclose on the Property because: under the terms of the Security Deed, Plaintiff granted to BANA the Property, with the power of sale; BANA assigned its rights under the Security Deed to BACHLS; BACHLS and BANA merged; and, as a result of the merger, BANA acquired "all the property, rights, powers, trusts, duties and obligations" of BANA, including the Security Deed, with the power of sale. To the extent Plaintiff argued that BANA lacked standing to foreclose on the Property because it did not hold the Security Deed and Note, and that the Assignment is not valid, the Court found that Plaintiff's arguments have been expressly rejected under Georgia law.
The Court further found that Plaintiff failed to state a claim for violation of the FDCPA because she did not allege, and it did not appear, that BANA is a "debt collector" under the FDCPA. Finally, the Court found that Plaintiff failed to state a claim for violation of 12 U.S.C. § 3754 because Plaintiff did not allege that her mortgage is held by the Security of Housing and Urban Development and it is clear that BANA, as the holder of the Security Deed, is the entity attempting to foreclose on the Property.
On January 9, 2014, Plaintiff moved for reconsideration of the Court's December 16th Order.
"A motion for reconsideration made after final judgment falls within the ambit of either Rule 59(e) (motion to alter or amend a judgment) or Rule 60(b) (motion for relief from judgment or order)."
Motions for reconsideration under Rule 59(e) are only appropriate where there is newly-discovered evidence or a need to correct a manifest error of law or fact.
Motions for reconsideration under Rule 60(b) only are appropriate where there is "mistake, inadvertence, surprise, or excusable neglect," newly discovered evidence, fraud, a void judgment, or a judgment that has been satisfied or is no longer applicable. Fed. R. Civ. P. 60(b).
Motions for reconsideration under either Rule 59(e) or Rule 60(b) are left to the sound discretion of the district court.
Plaintiff seeks reconsideration based on "new evidence to be considered in this action . . . regarding the following facts: Plaintiff's licensed private investigator Joseph R. Esquivel Jr. testified in his affidavit that with no specific properly secured owner of the limited beneficial interest of the note there is no way to enforce the striped intangible obligation through the note." ([17.2] at 1). The Court disagrees.
Evidence that could have been discovered and presented on the previously-filed motion is not newly discovered.
Here, the affidavit of Plaintiff's purported "licensed private investigator" was executed on November 1, 2013, or six (6) weeks before the Court issued its December 16th Order. Plaintiff fails to show that it was not available, or "could [not] have been discovered and presented," before the Court issued its December 16, 2013, Order. The affidavit is not "newly-discovered evidence" and the Court is not required to consider it.
Even if the Court considered it, the affiant's position "that there is no way to enforce the stripped intangible obligation through the note" is an inappropriate legal conclusion and it is contrary to Georgia law. In
Here, regardless of the effect Plaintiff and her "licensed private investigator" claim securitization had on ownership of the Note, BANA is the holder of the Security Deed and thus BANA is entitled to exercise the power of sale in the Security Deed. BANA is not trying to enforce the Note. Rather, BANA seeks to foreclose on the Property which secured Plaintiff's loan. BANA is not, as Plaintiff contends, required to "prove its right to enforce the Note" under O.C.G.A. § 11-3-309(a) in order to exercise the power of sale in the Security Deed.
Plaintiff next claims that the underlying debt has been paid—not by Plaintiff, who acknowledges in her Complaint that she "suspend[ed] payments" on her loan, but by "securitization and satisfaction of the [N]ote" and "the discharging of the debt" in bankruptcy. Plaintiff's legal theories are illogical and meritless. Plaintiff does not allege, and it does not logically follow, that any funds that may have been paid during securitization by other than Plaintiff to the holder of the Note were paid on behalf of Plaintiff, and for her benefit, to extinguish Plaintiff's loan obligations.
Plaintiff also argues that the Assignment is invalid because it was executed after BANA assigned the Note and did not comply with the Pooling and Servicing Agreement ("PSA") for the trust or state law. Plaintiff is not a party to the Assignment and she lacks standing to challenge its validity.
Plaintiff has not, and cannot, state a viable claim for relief based on BANA's alleged lack of authority to foreclose on the Property. Plaintiff fails to present any grounds upon which to support granting her relief from the Court's December 16th Order. Plaintiff's Motion for Reconsideration is denied.
For the foregoing reasons,