Case 3:13-cv CAR Document 18 Filed 06/09/14 Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ATHENS DIVISION

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1 Case 3:13-cv CAR Document 18 Filed 06/09/14 Page 1 of 16 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ATHENS DIVISION TINA RESTIVO, : : Plaintiff, : v. : : No. 3:13 CV 128 (CAR) BANK OF AMERICA CORPORATION, : a/k/a BANK OF AMERICA, N.A. f/k/a : BAC HOME LOANS SERVICING, LP : f/k/a COUNTRYWIDE HOME LOANS : SERVICING, L.P.; : MORTGAGE ELECTRONIC : REGISTRATION SYSTEMS, INC., : a/k/a MERS, INC.; and : PROMMIS SOLUTIONS, LLC, : : Defendants. : : ORDER ON DEFENDANTS MOTION TO DISMISS AND PLAINTIFF S MOTION TO REMAND Before the Court are Defendants Bank of America Corporation ( BAC ), Bank of America, N.A., as successor by merger to BAC Home Loans Servicing, L.P. f/k/a Countrywide Home Loans Servicing, L.P., ( BANA ), and Mortgage Electronic Registration Systems, Inc. s ( MERS ) (collectively Defendants ) Motion to Dismiss and Plaintiff Tina Restivo s Motion to Remand. Having considered the Motions, the responses thereto, and the applicable law, Plaintiff s Motion to Remand [Doc. 6] is DENIED, Defendants Motion to Dismiss [Doc. 4] is GRANTED, and Plaintiff s

2 Case 3:13-cv CAR Document 18 Filed 06/09/14 Page 2 of 16 Complaint is DISMISSED for failure to state a claim. Plaintiff s remaining Motions [Docs. 11, 12, 16] are DENIED as moot. BACKGROUND This case arises out of the foreclosure sale of real property located at 1020 Bradley Gin Lane, Monroe, Georgia (the Property ). On or about September 3, 2009, Plaintiff obtained a loan from Brand Mortgage Group, LLC ( Brand ) and executed a promissory note in the amount of $279, in favor of Brand (the Note ). 1 To secure repayment under the Note, the Plaintiff executed a security deed on the Property in favor of MERS as a grantee and nominee for the lender (the Security Deed ). 2 On September 30, 2011, MERS assigned its rights, title, and interests in the Security Deed to BANA by way of an Assignment of Security Deed. 3 BANA subsequently foreclosed on the Property in March Plaintiff, proceeding pro se, filed suit on October 21, 2013, in the Superior Court of Walton County, Georgia, against the named Defendants in this case. 5 In her Complaint, Plaintiff alleges that BANA lacked authority to foreclose because (1) it was 1 Compl., p. 5 [Doc. 1 2]; Mtn. to Dismiss, Ex. A [Doc. 4 2]. Defendants attach both the original Promissory Note and Security Deed to their Motion to Dismiss. Because these documents are central to Plaintiff s claims, the Court may consider these documents without converting the Motion into a motion for summary judgment. Bickley v. Caremark RX, Inc., 461 F.3d 1325, 1329 n.7 (11th Cir. 2006) (quoting Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997)). 2 Compl., p. 6, Ex. B. [Doc. 1 2]. 3 Id. at Ex. C. 4 Id. at p See generally id. 2

3 Case 3:13-cv CAR Document 18 Filed 06/09/14 Page 3 of 16 not the holder in due course of the Note at the time of foreclosure and (2) MERS did not have an interest to assign to BANA. 6 Moreover, Plaintiff alleges that Prommis Solutions, LLC ( Prommis ) failed to fact check the deed under power of sale after the foreclosure sale before it recorded the deed in the Walton County real estate records. 7 Based on these allegations, Plaintiff claims (1) the assignment of the Security Deed is void, (2) BANA wrongfully foreclosed on the Property, and (3) Defendants committed robo signer and deed fraud in violation of O.C.G.A Plaintiff seeks for the Court to declare the foreclosure sale and the dispossessory proceedings void, issue injunctive relief, and award punitive damages. Defendants removed the case to this Court on November 20, 2013, pursuant to 28 U.S.C. 1332, 1367, 1441, and Shortly thereafter, Defendants filed the instant Motion to Dismiss Plaintiff s Complaint. Plaintiff responded to the Motion and filed the instant Motion to Remand for lack of subject matter jurisdiction. These Motions are now ripe for the Court s review. DISCUSSION I. Plaintiff s Motion to Remand Because Plaintiff s Motion to Remand raises the threshold issue of the Court s jurisdiction, the Court must address the merits of this Motion first. 6 Id. at pp Id. at p. 9. 3

4 Case 3:13-cv CAR Document 18 Filed 06/09/14 Page 4 of 16 In support of her Motion, Plaintiff argues that the Court lacks subject matter jurisdiction because the Complaint does not present a federal question, nor does diversity jurisdiction exist. Additionally, Plaintiff argues that Defendants notice of removal is procedurally defective because Prommis did not consent to and join the notice of removal. Removal to federal court is proper for [a]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction[.] 8 Federal district courts have jurisdiction over (1) cases involving a federal question and (2) civil actions in which diversity of citizenship exists. 9 The burden lies with the party seeking removal to establish federal subject matter jurisdiction. 10 In this case, Defendants argue the Court s jurisdiction is based on diversity. Because the notice of removal invokes diversity jurisdiction, the Court need not consider whether removal is improper for lack of federal question jurisdiction, as the Plaintiff suggests. Thus, the Court will limit its discussion to whether Defendants have established (1) diversity of citizenship and (2) an amount in controversy in excess of $75, U.S.C. 1441(a) U.S.C. 1331, 1332(a). 10 Friedman v. N.Y. Life Ins. Co., 410 F.3d 1350, 1353 (11th Cir. 2005). 11 See 28 U.S.C. 1332(a). 4

5 Case 3:13-cv CAR Document 18 Filed 06/09/14 Page 5 of 16 A. Complete Diversity of Citizenship In order to establish complete diversity of citizenship, removing parties must show that the citizenship of every plaintiff is diverse from that of every defendant. 12 Plaintiff in this case is a citizen of Georgia. Defendant BAC is a citizen of both Delaware and North Carolina; Defendant BANA is a citizen of North Carolina; and Defendant MERS is a citizen of Delaware and Virginia. Defendants do not provide the state of citizenship for Defendant Prommis. Nevertheless, Defendants argue that Prommis s citizenship must be disregarded for purposes of determining whether complete diversity exists because Prommis has been fraudulently joined as a party. Fraudulent joinder is a judicially created doctrine that provides an exception to the requirement of complete diversity. 13 When alleging fraudulent joinder, the removing party has the burden of proving that either: (1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court. 14 Defendants in this case proceed under the first theory of fraudulent joinder, namely that Plaintiff cannot establish a claim against Prommis. In determining whether the removing party has met its burden under this theory, the district court must evaluate the factual allegations in the light most favorable to the plaintiff and 12 Triggs v. John Crump Toyota, Inyou rc., 154 F.3d 1284, 1287 (11th Cir. 1998). 13 Id. 14 Taylor Newman Cabinetry, Inc. v. Classic Soft Trim, Inc., 436 F. App x 888, 890 (11th Cir. 2011) (quoting Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997)). 5

6 Case 3:13-cv CAR Document 18 Filed 06/09/14 Page 6 of 16 must resolve any uncertainties about state substantive law in favor of the plaintiff. 15 The determination of whether a resident defendant has been fraudulently joined must be based upon the plaintiff s pleadings at the time of removal, supplemented by any affidavits and deposition transcripts submitted by the parties. 16 After reviewing these materials, a district court may only find fraudulent joinder when there is absolutely no possibility that a state court would find that the complaint states a cause of action against... the resident defendant[]. 17 Here, Plaintiff asserts a single claim against Prommis for deed fraud in violation of O.C.G.A In support of this claim, Plaintiff alleges that Prommis acted as a Robo Signer and did not fact check and verify the DEED SALE UNDER POWER (Exhibit D) as required by law. 18 Simply put, these facts fail to state a claim for fraud. To establish fraud, Plaintiff must allege facts showing (1) [a] false representation made by the defendant; (2) scienter; (3) an intention to induce the plaintiff to act or refrain from acting in reliance by the plaintiff; (4) justifiable reliance by the plaintiff; (5) damage to the plaintiff. 19 Furthermore, when alleging fraud, a party must state with 15 Crowe, 113 F.3d at Pacheco de Perez v. AT & T Co., 139 F.3d 1368, 1380 (11th Cir. 1998). 17 Taylor Newman Cabinetry, Inc., 436 F. App x at Compl., p. 8 [Doc. 1 2]. 19 Johnson v. GAPVT Motors, Inc., 292 Ga. App. 79, 82 (2008) (quoting City Dodge v. Gardner, 232 Ga. 766, , n.1 (1974)). 6

7 Case 3:13-cv CAR Document 18 Filed 06/09/14 Page 7 of 16 particularity the circumstances constituting fraud[.] 20 The Eleventh Circuit has explained that [p]articularity means that a plaintiff must plead facts as to time, place, and substance of the defendantʹs alleged fraud, specifically the details of the defendant[ʹs] allegedly fraudulent acts, when they occurred, and who engaged in them. 21 Here, Plaintiff has not alleged that Prommis made any misrepresentation at all, intentionally or otherwise, let alone how she justifiably relied on it. Rather, she merely alleges that Prommis acted as a robo signer. However, this Court has found that there is no recognized claim for robo signing in Georgia. 22 Because she failed to plead fraud with particularity and no separate claim for robo signing exists, there is no possibility that Plaintiff can state a claim against Prommis. 23 Therefore, the Court may ignore Prommis s citizenship under the doctrine of fraudulent joinder. Accordingly, 20 Fed. R. Civ. P. 9(b). 21 U.S. ex rel. Atkins v. McInteer, 470 F.3d 1350, 1357 (11th Cir. 2006) (internal quotation marks and citation omitted). 22 Reynolds v. JPMorgan Chase Bank N.A., 5:11 CV 311 MTT, 2011 WL , at *3 (M.D. Ga. Nov. 21, 2011); see also Milburn v. Aegis Wholesale Corp., 1:12 CV RWS, 2013 WL , at *4 (N.D. Ga. Mar. 18, 2013). 23 Although not raised by the Defendants in their Motion, the Court questions whether O.C.G.A provides a proper basis for Plaintiff s fraud claim. This Georgia Code provision is a criminal statute and the statutory language does not indicate that it imposes civil liability. See Murphy v. Bajjani, 282 Ga. 197, 201 (2007) ( [T]he violation of a penal statute does not automatically give rise to a civil cause of action on the part of one who is [purportedly] injured thereby. ) (internal quotation marks and citation omitted)(second alteration in original). 7

8 Case 3:13-cv CAR Document 18 Filed 06/09/14 Page 8 of 16 diversity of citizenship exists among the properly joined parties, and Prommis is DISMISSED as a party in this case. 24 B. Amount in Controversy Further, the amount in controversy element of diversity jurisdiction is satisfied because the value of the Property combined with Plaintiff s request for punitive damages exceeds $75, Plaintiff argues the amount in controversy does not exceed $75, because her Complaint does not contain a specific dollar amount. Despite Plaintiff s argument to the contrary, failure to plead a specific amount of damages in the Complaint is not dispositive. When a plaintiff does not plead a specific amount of damages, a defendant wishing to remove the complaint from state court must show by a preponderance of the evidence that the amount in controversy exceeds $75, In shouldering this burden, a removing defendant is not required to prove the amount in controversy beyond all doubt or to banish all uncertainty about it. 26 Rather, the defendant may satisfy its burden by showing either that it is facially apparent from the pleading itself that the amount in controversy exceeds the jurisdictional minimum, or that there is additional evidence demonstrating that 24 See Florence v. Crescent Res., LLC, 484 F.3d 1293, 1297 (11th Cir. 2007). 25 Haynes v. JPMorgan Chase Bank, N.A., 466 F. Appʹx 763, 764 (11th Cir. 2012) (citing Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001)). 26 Lambeth v. Peterbilt Motors Co., No WS N, 2012 WL , at *2 (S.D. Ala. May 15, 2012) (quoting Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 754 (11th Cir. 2010)). 8

9 Case 3:13-cv CAR Document 18 Filed 06/09/14 Page 9 of 16 removal is proper. 27 If the Court cannot determine the amount in controversy from the Complaint, the Court may consider the notice of removal. 28 Here, Defendants argue that Plaintiff s claims for injunctive relief satisfy the amount in controversy requirement. The Court agrees. Where a party seeks declaratory or injunctive relief, the amount in controversy is measured by the value of the object of the litigation. 29 Here, Plaintiff is seeking equitable relief that would prevent BANA from taking possession of the Property, and, thus, the value of the Property establishes the amount in controversy. 30 In this case, records from the Walton County Tax Assessor s Office indicate the value of the Property is $225, Therefore, Defendants have successfully shown the amount in controversy exceeds the $75, threshold. Having found that Plaintiff s claim for injunctive relief clearly exceeds the jurisdictional threshold, the Court need not consider whether Plaintiff s request for punitive damages further satisfies the amount in controversy requirement. 27 Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (quotation marks and citations omitted). 28 Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001). 29 Occidental Chem. Corp. v. Bullard, 995 F.2d 1046, 1047 (11th Cir.1993) (quotation marks and citation omitted). 30 See Copelan v. Elite Lending Partners, 5:13 CV 95 MTT, 2013 WL , at *2 (M.D. Ga. June 5, 2013) ( When a plaintiff seeks injunctive relief barring foreclosure on the property at issue, the value of that property is what determines the amount in controversy. ). 31 Notice of Removal, Ex. B [Doc. 1 3]. The Court may take judicial notice of public records at any stage of the proceeding pursuant to Federal Rule of Evidence 201(d). Horne v. Potter, 392 F. Appʹx 800, 802 (11th Cir. 2010). Therefore, the Court takes judicial notice of the Property s value as evidenced by the Walton County Tax Assessor s records. Accord McClain v. Bank of Am., Corp., CV , 2013 WL , at *5 n.5 (S.D. Ga. Apr. 5, 2013). 9

10 Case 3:13-cv CAR Document 18 Filed 06/09/14 Page 10 of 16 C. Procedural Deficiency of Removal Finally, Plaintiff argues that Defendants notice of removal is procedurally flawed because Prommis did not consent to and join the notice of removal. 32 The unanimity rule requires that all defendants consent to and join a notice of removal in order for it to be effective. 33 Where a defendant is fraudulently joined, however, that defendant s consent is not required to effectuate removal. 34 Having found Prommis to be fraudulently joined, its lack of consent does not defeat removal. Based on the foregoing, Plaintiff s Motion to Remand is DENIED. II. Defendants Motion to Dismiss Having determined that the Court has jurisdiction, the Court will now consider the merits of Defendants Motion to Dismiss Plaintiff s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. A. Legal Standard On a motion to dismiss, the Court must accept as true all well pleaded facts in a plaintiff s complaint. 35 To avoid dismissal pursuant to Federal Rule of Civil Procedure 32 See 28 U.S.C. 1446(b)(2)(A) ( All defendants who have been properly joined and served must join in or consent to the removal of the action. ). 33 Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202, 1207 (11th Cir. 2008). 34 See Thompson v. Accent Capital, 491 F. Appʹx 264, 265 (2d Cir. 2012) ( Defendants who are joined fraudulently are not required to consent to the notice of removal. ); Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir. 1993) ( In cases involving alleged improper or fraudulent joinder of parties, however, application of [the unanimity] requirement to improperly or fraudulently joined parties would be nonsensical, as removal in those cases is based on the contention that no other proper defendant exists. ). 35 Sinaltrainal v. Coca Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009). 10

11 Case 3:13-cv CAR Document 18 Filed 06/09/14 Page 11 of 16 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 36 A claim is plausible where the plaintiff alleges factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. 37 The plausibility standard requires that a plaintiff allege sufficient facts to raise a reasonable expectation that discovery will reveal evidence that supports a plaintiff s claims. 38 The Court remains mindful that [p]ro se pleadings are held to a less stringent standard than pleadings drafted by attorneys, and will, therefore, be liberally construed. 39 However, [e]ven with pro se litigants, conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal. 40 B. Analysis Although the Complaint is difficult to decipher, it appears Plaintiff claims: (1) the assignment of the Security Deed is void; (2) BANA wrongfully foreclosed on the Property, and (3) Defendants committed robo signer fraud and deed fraud in violation of O.C.G.A Like the claim against Prommis, these allegations fail to state a claim upon which relief may be granted. 36 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 37 Id. 38 Twombly, 550 U.S. at Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). 40 United States v. Korman, CIV, 2008 WL , at *3 (S.D. Fla. Nov. 5, 2008) (quoting Aldana v. Del Monte Fresh Produce, N.A., 416 F.3d 1242, 1246 (11th Cir. 2005)). 11

12 Case 3:13-cv CAR Document 18 Filed 06/09/14 Page 12 of 16 i. Assignment of the Security Deed First, Plaintiff asserts that the assignment of the Security Deed from MERS to BANA is void. Specifically, Plaintiff alleges that MERS did not have the authority to assign the Security Deed because it was acting only as a nominee of the lender and did not have a beneficiary interest in the Note. By extension, Plaintiff alleges MERS s assignment to BANA is void because MERS had no interest to assign. Additionally, Plaintiff alleges the assignment to BANA is void because the Security Deed was untimely transferred in violation of the Real Estate Mortgage Investment Conduit ( REMIC ). All of these allegations fail to state a claim. Georgia courts have held that MERS, as a grantee named in the security deed, has an interest in and the authority to assign said security deed. 41 The plain language of the Security Deed in this case confirms MERS s interest and right to assign that interest. Specifically the Security Deed states, Borrower does hereby grant and convey to MERS (solely as nominee for Lender and Lender s successors and assigns) and the successors and assigns of MERS, with power of sale, the following described property.... Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument; but, if necessary to comply with law or custom, MERS, (as nominee for Lender and Lender s successors and assigns), has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of 41 See, e.g., Montgomery v. Bank of Am., 321 Ga. App. 343, (2013); Larose v. Bank of Am., N.A., 321 Ga. App. 465, 467 (2013). 12

13 Case 3:13-cv CAR Document 18 Filed 06/09/14 Page 13 of 16 Lender, including, but not limited to, releasing or canceling this Security Instrument. 42 This language clearly permits MERS to assign its interest in the Property. 43 Plaintiff cannot reasonably contest MERS s right to assign, and BANA s subsequent right to foreclose, because she consented to MERS s involvement in the transaction by executing the Security Deed in its favor. 44 Thus, any claim that MERS lacked authority to assign the Security Deed must be dismissed for failure to state a claim. Even assuming the assignment was somehow defective, Plaintiff lacks standing to challenge the validity of the assignment. Under Georgia law, a borrower lacks standing to contest the validity of the assignment because she is not a party to the assignment contract. 45 Plaintiff also lacks standing to contest the assignment on the grounds that it violates the REMIC. REMIC is a real estate mortgage investment conduit, i.e., an entity owning a collateralized pool of real estate mortgages and related securities that satisfy certain technical requirements in the Internal Revenue Code. 46 From the Complaint it is unclear whether Plaintiff alleges that the assignment violated the REMIC s Pooling and Service Agreement (the PSA ), or whether Plaintiff alleges the 42 Compl., Ex. B [Doc. 1 2] (emphasis added). 43 Alexis v. Mortg. Elec. Registration Sys., Inc., 1:11 CV RWS, 2012 WL , at *3 (N.D. Ga. Mar. 5, 2012). 44 Id. 45 Montgomery, 321 Ga. App. at 346; see also Breus v. McGriff, 202 Ga. App. 216, 216 (1991) ( [S]trangers to the assignment contract... have no standing to challenge its validity. ). 46 In re Enron Corp. Securities, Derivative & ERISA Litigation, 761 F. Supp. 2d 504, 525 n. 9 (S.D.Tex.2011). 13

14 Case 3:13-cv CAR Document 18 Filed 06/09/14 Page 14 of 16 assignment violated the Internal Revenue Service s REMIC regulations, 26 U.S.C. 860A G. Under either theory, however, Plaintiff lacks standing. Plaintiff is not a party to the PSA or an investor in the REMIC trust. As such, she lacks standing to challenge the validity of the assignment under the terms of the PSA. 47 To the extent Plaintiff challenges the assignment as violating the governmental REMIC regulations, these are tax laws, and Plaintiff has not shown how she has standing to bring a private cause of action for Defendants failure to comply with these laws. 48 Because Plaintiff lacks standing to challenge the assignment of the security deed from MERS to BANA, her claims based on the invalidity of the security deed assignment fail to state a claim. ii. Wrongful Foreclosure Claim Second, Plaintiff asserts a related claim for wrongful foreclosure. In Georgia, a plaintiff asserting a claim of wrongful foreclosure must 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. 49 In support of her wrongful 47 See Edward v. BAC Home Loan Servicing, L.P., 534 F. App x 888, 891 (11th Cir. 2013). 48 See Brown v. Chase Bank, N.A., 2:12 CV 11440, 2013 WL (E.D. Mich. Jan. 18, 2013) report and recommendation adopted by , 2013 WL (E.D. Mich. Mar. 26, 2013) ( The REMIC statutes and regulations, in other words, are tax laws. Even if they were violated, the harm was to the government, not to plaintiff, and plaintiff therefore has no viable cause of action based on defendantʹs alleged failure to comply with this statutes and regulations. ); see also Hayes v. Bank of Am., CIV.A. H , 2013 WL , at *9 (S.D. Tex. Sept. 23, 2013) (dismissing claim based on REMIC violation because the plaintiff did not shown that he had standing to bring a private cause of action for an income tax violation under the Internal Revenue Code). 49 Racette v. Bank of Am., N.A., 318 Ga. App. 171, 174 (2012) (internal quotation marks and citation omitted). 14

15 Case 3:13-cv CAR Document 18 Filed 06/09/14 Page 15 of 16 foreclosure claim, Plaintiff alleges that BANA did not have the authority to foreclose because it did not hold the Note along with the Security Deed. Despite Plaintiff s argument to the contrary, [Georgia] law does not require a party seeking to exercise a power of sale in a deed to secure debt to hold, in addition to the deed, the promissory note evidencing the underlying debt. 50 Although Plaintiff challenges the validity of the assignment of the Security Deed to BANA, she does not dispute that MERS assigned the Security Deed to BANA. Therefore, because BANA held the Security Deed, its failure to be the holder of the Note is not fatal to its power to foreclose. Moreover, to the extent Plaintiff seeks to have the foreclosure sale set aside, Georgia law requires that a plaintiff tender the undisputed amount due and owing on the loan. 51 Neither fraud nor poverty constitute an equitable excuse for failure to tender. 52 Here, Plaintiff fails to state a claim because she has not alleged payment or tender of the amount due on the loan. These reasons, taken conjunctively or separately, require dismissal of Plaintiff s wrongful foreclosure claim. 50 You v. JP Morgan Chase Bank, N.A., 293 Ga. 67, 67 (2013). 51 See Ceasar v. Wells Fargo Bank, N.A., 322 Ga. App. 529, 532 (2013) (dismissing claim to set aside foreclosure because the plaintiffs did not tender the amount due and owing on the loan); Hill v. Filsoof, 274 Ga. App. 474, 475 (2005) ( Before one who has given a deed to secure his debt can have set aside in equity a sale by the creditor in exercise of the power conferred by the deed, and injunction to prevent interference with the debtorʹs possession of the property conveyed by the deed, he must pay or tender to the creditor the amount of principal and interest due. (internal quotation marks and citation omitted)). 52 Hill, 274 Ga. App. at 476 (internal quotation marks omitted). 15

16 Case 3:13-cv CAR Document 18 Filed 06/09/14 Page 16 of 16 iii. Robo Signer Fraud and Deed Fraud in Violation of O.C.G.A The allegations of fraud fail for the same reasons as those raised against Prommis previously discussed above. 53 CONCLUSION Based on the foregoing, Plaintiff s Motion to Remand [Doc. 6] is DENIED; Defendants Motion to Dismiss [Doc. 4] is GRANTED; and Plaintiff s remaining Motions [Doc. 11, 12, 16] are DENIED as moot. SO ORDERED, this 9th day of June, ADP/bbp S/ C. Ashley Royal C. ASHLEY ROYAL, CHIEF JUDGE UNITED STATES DISTRICT COURT 53 See discussion supra Part I.A. 16