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1 IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA MAMIE 1. ROWLS, ) ) Plaintiff, ) ) vs. ) ) BANK OF AMERICA, BAC HOME LOANS ) SERVICING, LLP, Mers/MORTGAGE ) ELECTRONIC REGISTRATION SYSTEMS ) DEUTSCHE BANK NATIONAL TRUST ) COMPANY, as TRUST for THE GSAA EQUITY ) TRUST ) ) Defendants. ) ) CIVIL ACTION FILE NO.: 12:CV JURY TRIAL DEMANDED ORDER AND FINAL JUDGMENT This matter comes before the Court following oral argument on August 15,2013, on the following pending motions: (1) Defendants' Motion for Judgment on the Pleadings as to Plaintiffs First Amended Complaint, filed February 1,2013; (2) Defendants' Renewed Motion for Judgment on the Pleadings as to Plaintiff s Second Amended Complaint, filed June 21, 2013; (3) Defendants' Motion for Protective Order to Stay Discovery, filed April 26, 2013; (4) Plaintiffs Motion in Limine, filed August 15,2013; and (5) Defendants' Motion to Strike Plaintiffs "Supplement to Hearing and Response to Defendants' Reply to Plaintiffs Response to Defendants' Motion for Judgment on the Pleadings," filed September 9, The Court having reviewed and considered all motions, pleadings, briefs and submissions of counsel, the applicable authority, the entire record, and heard oral arguments on the various

2 motions pending before the Court, finds that Defendants' Motion for Judgment on the Pleadings and Defendants' Renewed Motion for Judgment on the Pleadings is hereby GRANTED and Plaintiffs First Amended Complaint and Second Amended Complaint are DISMISSED, with prejudice; Defendants' Motion for Protective Order to Stay Discovery is hereby DENIED AS MOOT; Plaintiffs Motion in Limine is hereby DENIED; and Defendants' Motion to Strike is hereby DENIED. I. PROCEDURAL HISTORY On May 10, 2012, Plaintiff initiated the instant action seeking legal and equitable relief arising from an alleged wrongful foreclosure of Plaintiffs property. On June 22,2012, Defendants timely moved to dismiss Plaintiffs Complaint. Following oral argument, on October 26,2012, the Court granted Defendants' Motion and dismissed Plaintiff s original Complaint but also granted Plaintiff s request to file an Amended Complaint. On October 27, 2012, Plaintiff filed her First Amended Complaint and, on May 8, 2013, she filed a Second Amended Complaint. This matter comes before the Court on the motions set forth above. II. FACTUAL FINDINGS Taking all of Plaintiff s factual allegations as true for purposes of Defendants' Motion for Judgment on the Pleadings and Renewed Motion for Judgment on the Pleadings, the following facts alleged by Plaintiff, which are assumed to be true, are material to Plaintiffs claims: 1. On or about April 6, 2004, Plaintiffs late husband, Oscar Rowls, executed a promissory note (the "Note") and security deed ("Security Deed") to obtain a mortgage loan to purchase property located at 1067 Princeton Park Dr., Lithonia, Georgia (the "Property"). (See Second Amended Compl, at ~ 6). 2

3 2. Mr. Rowls executed the Note in favor of the mortgage lender, GreenPoint Mortgage Funding, Inc. ("GreenPoint"). ad.) 3. Mr. Rowls executed the Security Deed, which names as grantee, Defendant Mortgage Electronic Registration Systems, Inc. ("MERS"), "as a separate corporation acting solely as a contractual nominee for the lender... " (the "Security Deed"). (Id. at ~~ 6, 9) On its face, the Security Deed contains language that authorizes the named grantee to either assign its interest in the Security Deed to a third-party or sell the Property in the event of default on the Note. (See Original Compl. at ~ 17 and Ex. B (Security Deed) at p. 3; Plf.'s Sup. Br., filed on Sept. 5,2013, at Ex. A (Security Deed) at p. 3). 5. On July 28,2008, MERS assigned its interest in the Security Deed to GreenPoint. (the "MERS Assignment"). (See Second Amended Compl. at ~~ 9, 13; Original Compl, at Ex. E; Plf.'s Supp. Br., filed on Sept. 5,2013, at Ex. B). 6. On October 17,2011, GreenPoint recorded an assignment of the Note and Security Deed to Defendant Deutsche Bank National Trust Company, as Trustee for the GSAA Equity Trust ("Deutsche Bank") (the "GreenPoint Assignment"). (See Second Amended Compl, at ~16; Original Compl. at Ex. D; Plf. 's Supp. Br., filed on Sept. 5,2013, at Ex. C). 7. Plaintiff alleges that GreenPoint was no longer in business and out of existence at the time of the GreenPoint Assignment. (See Second Amended Compl. at ~ 12). At the August In her Motion in Limine, Plaintiff requests the Court not consider the purported Security Deed, the MERS Assignment, and the GreenPoint Assignment. Plaintiff, however, attached copies of each of these documents to her original Complaint as Exhibits A, D, and E, and also attached and cited to these same documents in her Supplemental Brief. (See Plf.'s Suppl. Br., filed on Sept. 5,2013, at Exs. A, B and C). Accordingly, the Court may consider these documents for purposes ofthe instant Motions. See Poole v. In Home Health, LLC, 321 Ga. App. 674,674, 742 S.E.2d 492,493,2013 WL , at *1 n1 (2013) ("On a motion for judgment on the pleadings, a trial court may consider exhibits attached to and incorporated into the pleadings.") (citing Lewis v. Turner Broadcasting System, 232 Ga. App. 831, 832(2), 503 S.E.2d 81 (1998)). 3

4 15, 2013 hearing before this Court, counsel for Plaintiff admitted that Plaintiff is not certain when GreenPoint completely ceased doing business. 8. Following the death ofmr. Rowls, Plaintiff assumed her husband's obligations under the Note and Security Deed. (See Original Compl. at ~~ 20-21; Second Amended CompI. at ~ 7). Plaintiff subsequently defaulted on the mortgage loan due to a decrease in her income and an increase in the loan rate. (See Original CompI. at ~ 21f 9. Deutsche Bank subsequently published and sent Plaintiff a Notice of Sale under Power on or about March 7, 2012 and then conducted a non-judicial foreclosure sale ofthe Property on April 3, (See Second Amended CompI. at ~~ 16, 19,20). III. CONCLUSIONS OF LAW A. Applicable Legal Standard. Under Georgia law, a motion for judgment on the pleadings pursuant to O.C.G.A (c) may be granted "where there is a complete failure to state a cause of action or defense." Brathwaite v. Fulton-DeKalb Hosp. Auth., 317 Ga. App. 111, 112, 729 S.E.2d 625, 627 (2012) (citing Pressley v. Maxwell, 242 Ga. 360,249 S.E.2d 49 (1978)). When considering a motion for judgment on the pleadings, "all well-pleaded material allegations of the opposing party's pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false." Id. While the Court is obligated to accept as true all well-pleaded facts, the Court "is not required to adopt a party's legal conclusions based on those facts." Novare Group, Inc. v. Sarif, 290 Ga. 186, 191, 718 S.E.2d 304,309 (2011). 2 Although, Plaintiff s original Complaint has been dismissed and has since been amended twice, the Court may consider prior admissions made in Plaintiffs original and First Amended Complaints as admissions against interest. See Georgia-Pacific, LLC v. Fields, Nos. S12G1393, S12G1417, 2013 WL , at *2 (Ga. Sept. 9,2013) (citing O.C.G.A ). 4

5 Applying this standard, and accepting as true all well pleaded facts as alleged by Plaintiff, the Court concludes that Plaintiffs First Amended Complaint and Second Amended Complaint fail to state a cause of action and should be dismissed as a matter of law. B. Defendants' Renewed Motion for Judgment on the Pleadings is GRANTED and Plaintiff's Second Amended Complaint is DISMISSED. Plaintiff conceded at oral argument that the Second Amended Complaint was intended to substitute and recast the First Amended Complaint, with the exception of certain allegations, as further discussed in Part IILC below. Accordingly, the Court will first address the viability of Plaintiff s Second Amended Complaint. 1. Plaintiff fails to state a claim for wrongful foreclosure as a matter of law. In support of her wrongful foreclosure claim, Plaintiff argues that MERS cannot be both a grantee and the nominee of the same security deed; hence, MERS' s assignment to GreenPoint is void because MERS had no authority to assign the deed as it could not be the grantee. This claim fails as a matter of law because Plaintiff lacks standing to challenge the validity of the MERS Assignment. A mortgagor who is not a party to an assignment of a security deed lacks standing to dispute the validity of the assignment. See O.C.G.A (a); Larose v. Bank of America, N.A., 321 Ga. App. 465,467-68, 740 S.E.2d 882, 888 (2013) (quoting Menyah v. BAC Home Loans Servicing, LP, No.1 :12-CV-0228-RWS, 2013 WL (N.D. Ga. Mar. 21,2013)). The Court is not persuaded by Plaintiff s argument based on Drouin v. American Home Mortgage Servicing, Inc., No. 11-CV-596-JL, 2012 WL (D. N.H. May 18,2012) that her challenge to Defendants' legal title in the Property provides her with standing to challenge the validity of the assignments. Even if Drouin is assumed to be a correct principle, for such to be in line with Georgia law, Plaintiff still must show she is at risk of paying the same debt twice, 5

6 and she has not made such an allegation. In You v. JP Morgan Chase Bank, the Court, in dicta, considered the "at risk of paying twice argument" and found that it "does not believe that the law necessarily allows such a result" because Georgia law allows the deed holder to hold legal title to the property on behalf of the note holder. 293 Ga. 67, 74, 743 S.E.2d 428, 433 (2013). Plaintiff s claim for wrongful foreclosure also fails on its merits. Plaintiff concedes the outcome determinative fact that MERS is identified as both "the nominee for the lender" and "the named grantee" in the Security Deed encumbering the Property, (See Second Amended CompI. at ~ 9), but bases her claim on the faulty legal theory that MERS may not hold this dual role under "traditional agency law principles." (See Second Amended CompI. at ~ 42). Plaintiff points to no contract principle under Georgia law that precludes MERS from serving as both grantee and nominee under a security deed. Under Georgia law, MERS can serve as both grantee and nominee in a security deed. A security deed is a creature of contract and its provisions control. You, 293 Ga. at 69-70, 743 S.E.2d at 429. Therefore, when a borrower executes a security deed that names MERS as nominee for the lender and as grantee, MERS may exercise all rights and authority granted to it by the plain terms of the security deed, including the power to foreclose in the event of default and the right to assign its interest in the security deed. Montgomery v. Bank of America, N.A., 321 Ga. App. 343, 740 S.E.2d 434 (2013); Larose, 321 Ga. App. 465, 740 S.E.2d 882 (2013). In Montgomery, the court rejected the argument made by Plaintiff here that MERS had no legal interest in the security deed to assign and instead held that the plain language of the security deed expressly gave MERS the right to either foreclose or assign its interest in the deed. Montgomery, 321 Ga. App. at , 740 S.E.2d at 443. The Larose court similarly upheld the dismissal of 6

7 the plaintiff s claim asserting challenges to MERS' s dual role as grantee and nominee in her security deed. Larose, 321 Ga. App. at 467, 740 S.E.2d at 884. The Security Deed at issue here contains similar language as the deeds at issue in Montgomery and LaRose. Accordingly, even accepting Plaintiffs factual allegations as true, Plaintiff fails to state a wrongful foreclosure claim as a matter of law. ii. Plaintiff fails to state a claim for fraud as a matter of law. Assuming the truth of the facts alleged by Plaintiff, she fails to state a claim for fraud as a matter of law. The Security Deed states on its face that MERS is grantee and nominee, holds legal title only, identifies the lender, and clearly notes MERS's powers and authorities. Hence, the Court concludes that there is no justifiable reliance on a misrepresentation or concealment to sustain a claim for fraud as a matter of law. Plaintiffs fraud claims also are barred as a matter oflaw by the applicable four-year statute oflimitations. See O.C.G.A ; Majeed v. Randall, 279 Ga. App. 679, 632 S.E.2d 413,416 (2006). See also Sellers v. Bank of America, N.A., No.1 :11-CV-3955-RWS, 2012 WL , at *4 (N.D. Ga. May 21,2012). The Security Deed naming MERS as grantee and nominee for the lender was executed, presented and available for review since 2004 when the subject loan was closed. (See Second Amended CompI. at,-r,-r6,43-44). Plaintiff filed the instant action in 2012 and therefore her fraud claim is time-barred Plaintiff s allegation that the GreenPoint Assignment is void fails to state a viable claim for relief. Plaintiffs claim for wrongful foreclosure is also based on allegations that the assignment of the Security Deed from Green Point to Deutsche Bank is void due to GreenPoint being an allegedly defunct corporation at the time of the assignment. For the reasons set forth above, Plaintifflacks standing to challenge the validity of the GreenPoint Assignment and therefore this 7

8 claim must be dismissed. See O.C.G.A ; Larose; 321 Ga. App. at , 740 S.E.2d at 888. Plaintiffs claim also fails on its merits. Plaintiff alleged in the Second Amended Complaint that GreenPoint had no authority to assign its interest in the Security Deed to Deutsche Bank because it has closed its lending practice. There is no allegation in the Second Amended Complaint that GreenPoint relinquished its interest in the Security Deed before assigning its interest to Deutsche Bank. (See Second Amended Compl. at,-r 16). Even assuming the truth of the facts alleged, at the August 15,2013 hearing, counsel for Plaintiff admitted that he is not certain when GreenPoint completely ceased doing business. 3 The Court finds that Plaintiff has not set forth a claim that the GreenPoint Assignment was defective at the time of transfer as a matter of law. Accordingly, Plaintiff cannot sustain a wrongful foreclosure or fraud claim based on this allegation. IV. Plaintiffs claims for wrongful foreclosure and fraud against Deutsche Bank fail as a matter oflaw. In her Second Amended Complaint, Plaintiff s claim for wrongful foreclosure is based, in part, on a challenge to the transfer of her mortgage loan into a trust pool held by Deutsche Bank, pursuant to a pooling and servicing agreement ("PSA"). (See Second Amended Compl. at,-r19). Plaintiff argues that Deutsche Bank had no authority to foreclose because the trust pool that included the Security Deed at issue had closed before the Security Deed could be legally added to the trust pool. This Court is persuaded by McGill v. Pinnacle Financial Corp., that Plaintiff lacks standing to challenge the transfer of her mortgage loan into a PSA, the terms of the PSA, or the contracting parties' performance under such an agreement. No. 612-cv rl-28TBS, 3 Hollberg v. Spalding County, 281 Ga. App. 768, , 637 S.E.2d 163, 170 (2006) (finding statements made by a party's counsel during a hearing are regarded as admissions in judicio and are binding on the party). 8

9 2013 WL , at *2 (M.D. Fla. Aug. 9,2013) (courts across the country have determined that "plaintiffs 'who are not parties to or third party beneficiaries of a [PSA], lack standing to challenge the validity of or noncompliance with the terms of a PSA or the validity of the assignment or transfer"). Accordingly, even accepting Plaintiffs factual allegations as true, Plaintiff lacks standing to assert a wrongful foreclosure claim premised on this allegation. With respect to Plaintiff s fraud claim against Deutsche Bank, the facts, as presented, do not show a reliance on any assertion made by Deutsche Bank. Under Georgia law, a claim for fraud must be pled with particularity. O.C.G.A (b); Cox v. Bank of America, N.A., 321 Ga. App. 806,807, 742 S.E.2d 147, 148 (2013). To support a claim for fraud, Plaintiff must allege a misrepresentation by the defendant made with the intent to deceive Plaintiff and that Plaintiff justifiably relied on the misrepresentation to her detriment. O.C.G.A (a); see also Choate Const. Co. v. Auto-Owners Ins. Co., 318 Ga. App. 682, 688, 736 S.E.2d 443, 448 (2012); Petzelt v. Tewes, 260 Ga. App. 802,805, 581 S.E.2d 345,347 (2003). Plaintiff has not pled any allegations of a misrepresentation by Deutsche Bank upon which Plaintiff relied. Plaintiff therefore fails to plead the requisite factual elements to sustain a fraud claim against Deutsche Bank. v. The facts alleged by Plaintiff do not state a claim against BANA. The only allegations against BANA consist of the conclusory allegation that BANA has no authority to service the loan and thus engaged in a joint venture with the other co-defendants to perpetrate the wrongful foreclosure and commit fraud. (See Second Amended CompI. at,,34, 53). While the Court must accept as true all well-pleaded facts when ruling on a motion for judgment on the pleadings, the Court "is not required to adopt a party's legal conclusions based on those facts." Novare Group, 290 Ga. at 191, 718 S.E.2d at 309 (emphasis added). 9

10 Plaintiffs allegations as to BANA consist only oflegal conclusions, which the Court is not bound to accept without supporting factual allegations. (See Second Amended Cornpl, at ~~ 34, 53). Plaintiff fails to plead the requisite facts to show the existence of a joint venture. To state a claim for civil conspiracy, Plaintiff must allege facts showing that "two or more persons combined 'either to do some act which is a tort, or else to do some lawful act by methods which constitute a tort." See McIntee v. Deramus, 313 Ga. App. 653, 722 S.E.2d 377 (2012); Savannah College of Art & Design v. School of Visual Arts of Savannah, 219 Ga. App. 296, 297,464 S.E.2d 895 (1995). Furthermore, "[t]he essential element of the alleged conspiracy is proof of a common design establishing 'that two or more persons in any manner, either positively or tacitly, arrive at a mutual understanding as to how they will accomplish an unlawful design." rd. Plaintiff fails to state any factual allegations of specific conduct by BANA or facts that would show the existence of a joint venture or conspiracy between BANA and the other Defendants. Therefore Plaintiff s wrongful foreclosure and fraud claims fail as to BANA as a matter oflaw. VI. Plaintiff s miscellaneous claims fail as a matter of law. Finally, at the August 15, 2013 hearing, there was discussion by counsel for Plaintiff of claims for intentional infliction of emotional distress, theft, and conversion. However, these claims appear to have been released by the Plaintiff, as the Second Amended Compliant does not include them. To the extent Plaintiff still asserts said claims, this Court grants the Defendants' Renewed Motion for Judgment on the Pleadings on these claims as the claims are based on alleged acts of fraud and wrongful foreclosure, which this Court has found in the Defendants' favor. 10

11 For the foregoing reasons, Defendants' Renewed Motion for Judgment on the Pleadings is GRANTED and Plaintiff s Second Amended Complaint is hereby DISMISSED in its entirety and with prejudice. C. Defendants' Motion for Judgment on the Pleadings is GRANTED and Plaintiff's First Amended Complaint is also DISMISSED. Plaintiffs counsel conceded at the August 15, 2013 hearing that the Second Amended Complaint was meant to substitute and recast the First Amended Complaint, with the only surviving claim being Plaintiff s allegations challenging the transfer of her mortgage loan into the PSA. (See Amended CompI. at ~~ 19, 23). For the reasons set forth in Part III.B.iii, supra, this claim fails as a matter of law. Plaintiff has abandoned the remaining claims in the First Amended Complaint and therefore Plaintiffs First Amended Complaint is hereby DISMISSED in its entirety and with prejudice. D. Defendants' Motion to Strike Plaintiff's Supplemental Brief is DENIED. The Court has considered Plaintiff s Supplemental Brief in setting forth the above findings of fact and conclusions oflaw. (See fn. 1, supra). Accordingly, Defendants' Motion to Strike is hereby DENIED. E. Plaintiff's Motion in Limine is DENIED. For the reasons set forth in footnote 1, supra, the Court finds that Plaintiff has abandoned or waived any claims as to the authenticity of the Note, Security Deed, GreenPoint Assignment and MERS Assignment. Accordingly, Plaintiffs Motion in Limine is hereby DENIED. F. Defendants' Motion for Protective Order is DENIED AS MOOT. Because Plaintiff s First Amended Complaint and Second Amended Complaint fail as a matter of law for the foregoing reasons, Defendants' Motion for Protective Order is DENIED AS MOOT. 11

12 IV. CONCLUSION For the foregoing reasons, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that: (1) Defendants' Motion for Judgment on the Pleadings is GRANTED and Plaintiffs First Amended Complaint is DISMISSED, with prejudice; (2) Defendants' Renewed Motion for Judgment on the Pleadings is GRANTED and Plaintiffs Second Amended Complaint is also DISMISSED, with prejudice; (3) Plaintiff's Motion in Limine is hereby DENIED; (4) Defendants' Motion to Strike is hereby DENIED; and (5) Defendants' Motion for Protective Order to Stay Discovery is hereby DENIED AS MOOT. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that JUDGMENT be entered in favor of Defendants. There being no just reason for delay, this judgment shall constitute a final judgment pursuant to the terms of O.C.G.A (b) and the clerk is therefore directed to enter this on. Tangela M. Barrie Superior Court of Dekalb County, Georgia Prepared by: LeeAnn Jones Georgia Bar No Adwoa Ghartey- Tagoe Seymour Georgia Bar No BRYAN CAVB LLP One Atlantic Center - Fourteenth 1201 West Peachtree Street Atlanta, Georgia Floor 12

13 Telephone: Facsimile: (404 ) (404) Attorneys for Defendants 13

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA GAINESVILLE DIVISION : : : : : : : : : : : : ORDER

Case 213-cv-00155-RWS Document 9 Filed 02/27/14 Page 1 of 12 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA GAINESVILLE DIVISION OVIDIU CONSTANTIN, v. Plaintiff, WELLS FARGO BANK,