Case 1:13-cv MHS Document 28 Filed 07/22/13 Page 1 of 8 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ORDER

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1 Case 1:13-cv MHS Document 28 Filed 07/22/13 Page 1 of 8 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION STEVE Q. MUHAMMAD, v. Plaintiff, JP MORGAN CHASE BANK, N.A. and THE LAW FIRM OF MCCALLA RAYMER, LLC, CIVIL ACTION NO. 1:13-CV-Q0353-MHS Defendants. ORDER Presently before the Court are the Magistrate Judge's Report and Recommendation ("R&R"), plaintiffs objections to the R&R, and defendants' responses to plaintiffs objections. For the reasons set forth below, the Court overrules plaintiffs objections and adopts the R&R. Background PlaintiffSteve Q. Muhammad filed this action in the Superior Court of DeKalb County, Georgia, on January 21, 2013, against JP Morgan Chase Bank, N.A. ("Chase") and the Law Firm ofmccalla Raymer, LLC ("McCalla"). Plaintiff alleged claims for wrongful foreclosure, violations of the Fair Debt A072A (Rev.8182)

2 Case 1:13-cv MHS Document 28 Filed 07/22/13 Page 2 of 8 Collection Practices Act ("FDCPA"), defendants' failure to comply with various federal laws related to foreclosures, and trespass. Plaintiff also sought a stay of the proceedings in dispossessory court. Defendants removed the case to federal court asserting federal question jurisdiction. Next, defendants moved to dismiss plaintiffs complaint for failure to state a claim upon which relief could be granted. Plaintiff then moved to remand the case to state court arguing that the Court lacked subject-matter jurisdiction. On June 19, 2013, Magistrate Judge King issued an R&R recommending that the Court deny plaintiffs motion to remand, grant defendants' motions to dismiss, and deny plaintiffs motion to stay dispossessory proceedings. This R&R is now before the Court along with plaintiffs objections and defendants' responses thereto. Discussion A district judge has broad discretion to accept, reject, or modify a magistrate judge's proposed findings and recommendations. United States 2 A072A (Rev.8/82)

3 Case 1:13-cv MHS Document 28 Filed 07/22/13 Page 3 of 8 v. Raddatz, 447 U.S. 667, 680 (1980). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. 636(b)(1)(C). The Court reviews the other portions of the R&R to which no objection has been made for plain error. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983). Plaintiff has not objected to the R&R's recommendation to deny plaintiffs motion to remand or to deny his request to stay dispossessory proceedings. The Court has reviewed these rulings for plain error and agrees with the R&R's conclusions. Plaintiff objects to the R&R's findings and ruling with regard to defendants' motion to dismiss. The facts show that plaintiff entered into a mortgage contract with Home Funding Corporation with a security deed on property located at 3581 Hunters Place Drive, Lithonia, DeKalb County, Georgia He entered a second mortgage contract with a security deed on the property with Greenpoint Mortgage Funding, Inc. ("Greenpoint") in which Mortgage Electronic Registration Systems, Inc. ("MERS") was 3 A072A (Rev.8/82)

4 Case 1:13-cv MHS Document 28 Filed 07/22/13 Page 4 of 8 designated as nominee and grantee under the security instrument. MERS, acting as the nominee for Greenpoint, then transferred the security deed to defendant Chase on October 12, Chase began foreclosure proceedings in August On October 2, 2012, a foreclosure sale on the property occurred, and defendant McCalla sent plaintiffa notice to vacate the premises on October 23,2012. As part of his wrongful foreclosure claim, plaintiff contended that defendants did not comply with relevant foreclosure laws because the note was split from the security deed, and therefore, Chase did not hold the promissory note. Without the note, plaintiffasserted that Chase was without authority to foreclose. Plaintiffalso alleged that the secured creditor was not identified in the notice of foreclosure sale. The R&R found that defendant Chase did not need to also hold the note in order to foreclose because Chase held the security deed and all the rights, title, and interests associated with the security deed. The R&R further found that pursuant to the language of the security deed and as an assignee of the deed by MERS, Chase had authority to conduct the non-judicial foreclosure 4 A072A (Rev.8/82)

5 Case 1:13-cv MHS Document 28 Filed 07/22/13 Page 5 of 8 sale regardless of whether Chase held the note or had any other beneficial interest in the debt. Additionally, the R&R concluded that the secured creditor did not need to be identified in the notice of foreclosure. Finally, the R&R explained that repleading plaintiffs claims would not cure the deficiencies in plaintiffs complaint, and therefore, the R&R recommends not allowing plaintiffan opportunity to amend his complaint. For these reasons, the R&R recommends granting defendants' motions to dismiss on plaintiffs wrongful foreclosure claim. Plaintiff asserts that the R&R assumed that the assignment from MERS to Chase was valid. Instead, he argues that the assignment was invalid, and therefore, Chase lacked any authority to foreclose. He contends that the R&R should have sua sponte inquired into the validity of the assignment. Plaintiff asserts that the assignment is a fabricated document prepared in anticipation of foreclosure not made during the regular course business. He contends that the assignment was signed by employees and agents of Chase, amounting to nothing more than robo signers who sign thousands ofdocuments with no personal knowledge of the matters they sign. 5 A072A (Rev.8/82)

6 Case 1:13-cv MHS Document 28 Filed 07/22/13 Page 6 of 8 Plaintiff does not have standing to challenge the assignment of the security deed from MERS to Chase. See Montgomery v. Bank of Am., 740 S.E.2d 434, 438 (Ga. Ct. App. 2013) (where the plaintiff alleged that the assignment was invalid because the attorney who purportedly executed the assignment did not in fact do so, finding that the plaintiff did not have standing to contest the validity of the assignment from MERS to the foreclosing bank because he was not a party to the assignment); see also Menyah v. BAC Home Loans Servicing, LP, 1:12-CV-0228-RWS, 2013 WL , at *3 (N.D. Ga. Mar. 21, 2013) (the plaintiffcould not challenge the validity of the assignment between MERS and the defendant because the plaintiff was not a party to the assignment); Wilson v. JP Morgan Chase Bank, N.A., 2:II-CV RWS, 2012 WL , at *4 (N.D. Ga. Feb. 24, 2012)(there is no such cause ofaction as "robo-signing" in Georgia); Rosenhaft v. BAC Home Loans Servicing, LP, No. 1:11-CV-2519-TWT, 2012 U.S. Dist. LEXIS 18155, at *4 (N.D. Ga. Feb. 13,2012) (finding that the plaintiffdebtor did not have standing to challenge the assignment from MERS to Bank of America because the plaintiffwas not a party to the assignment). Therefore, the Court overrules plaintiffs objection on this basis. 6 A072A (Rev.8/82)

7 Case 1:13-cv MHS Document 28 Filed 07/22/13 Page 7 of 8 Plaintiffalso objects to the R&R's recommendation to not allow plaintiff an opportunity to replead his wrongful foreclosure claim. He contends that it is error to dismiss the complaint of a pro seplaintiffwith prejudice without allowing at least one opportunity for plaintiffto amend his pleadings. He also asserts that the Court should have advised him ofhis right to amend or to file leave to amend so that he could cure any deficiencies. The Court agrees with the R&R's recommendation. Although ordinarily a party must be given at least one opportunity to amend his complaint before the court dismisses it, the court need not do so where an amendment would be futile. Langlois v. Traveler's Ins. Co., 401 F. App'x 425, 426 (lith Cir. 2010). This rule applies equally to pro se plaintiffs. See Jemison v. Mitchell, 380 F. App'x 904,907 (11th Cir. 2010) (dismissal of pro se plaintiffs complaint is proper if a more carefully drafted complaint could not state a valid claim); Sibley v. Lando, 437 F.3d 1067, (lith Cir. 2005). Mter a de novo review, the Court agrees with Magistrate Judge King that a more carefully drafted complaint could not state valid claims here, and therefore, because any amendment would be futile, the Court will not allow plaintiff an opportunity to replead his claims. 7 A072A (Rev.8/82)

8 Case 1:13-cv MHS Document 28 Filed 07/22/13 Page 8 of 8 Conclusion For the foregoing reasons, the Court OVERRULES plaintiffs objections [#23]; AD 0 PTS the R&R [#21]; DENIES plaintiffs motion for remand for lack of subject-matter jurisdiction [#19]; GRANTS defendant Chase's motion to dismiss [#4]; GRANTS defendant McCalla's motion to dismiss [#9]; DENIES plaintiffs motion to stay dispossessory proceedings [#2-1]; and DISMISSES this action. IT IS SO ORDERED, this~ay of July, Marvin H. Shoob, Senior Judge United States District Court Northern District of Georgia 8 A072A (Rev.8/82)

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

Case 112-cv-00228-RWS Document 5 Filed 03/21/13 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION JOSEPH MENYAH, v. Plaintiff, BAC HOME LOANS SERVICING,