Case 4:07-cv-00019-WLS Document 145 Filed 02/02/15 Page 1 of 11 IN THE UNITED STATE DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION BRADLEY Y. SCHORR and ) LORI A. SCHORR, Individually, ) and on behalf of a class of similarly ) situated persons, ) ) Plaintiffs, ) ) v. ) Civil Action ) File No.: 4:07-cv-19-WLS COUNTRYWIDE HOME LOANS, ) INC. and BANK OF AMERICA, N.A., ) ) Defendants ) AMENDED CLASS ACTION COMPLAINT Plaintiffs file this Amended Complaint on behalf of themselves and on behalf of a class of all similarly situated persons, as defined below. Plaintiffs file this complaint against defendants Countrywide Home Loans, Inc. ( Countrywide ) and Bank of America, N.A. ( BANA ), which has acquired and merged with Countrywide s loan servicing entity (Countrywide Home Loans Servicing, LP.). I. PARTIES, JURISDICTION, & VENUE 1. Plaintiffs, Bradley and Lori Schorr, are citizens of Georgia and residents of Harris County, Georgia located within the Middle District of Georgia. 2. Plaintiffs bring this action individually and on behalf of the class defined below to recover statutory damages for the defendants failures to timely cancel security deeds within sixty (60) days of loan payoff, as required by O.C.G.A. 44-14-3.
Case 4:07-cv-00019-WLS Document 145 Filed 02/02/15 Page 2 of 11 3. Defendant Countrywide is a New York corporation that maintains a registered agent in Georgia: Prentice-Hall Corporation Systems, 40 Technology Parkway, South #300, Norcross, Gwinnett County, Georgia 30092. 4. Countrywide is subject to personal jurisdiction in this Court because it transacts and has transacted substantial business in Georgia and in the Middle District of Georgia, and it has agents and maintained offices in the State of Georgia and in this District. Countrywide is registered to conduct business in the State of Georgia, and regularly conducts and conducted business in Georgia and in this District. It derives and has derived substantial revenue from its business with the citizens of Georgia and from its business within this District. 5. Countrywide s continuous and systematic business contacts within the State of Georgia subject it to the personal jurisdiction of this Court pursuant to Georgia s long arm statute and the requirements of due process. 6. Countrywide s loan servicing entity (Countrywide Home Loans Servicing, LP.) has merged into and become Defendant BANA. 7. BANA is a national banking association with its principal place of business in Charlotte, North Carolina, and therefore a citizen of that state. 8. BANA is subject to personal jurisdiction in this Court because it transacts and solicits substantial business in Georgia and in the Middle District of Georgia, and it has agents and maintains offices in the State of Georgia and in this District. It derives substantial revenue from its business with the citizens of Georgia and from its business within this District. 2
Case 4:07-cv-00019-WLS Document 145 Filed 02/02/15 Page 3 of 11 9. BANA s continuous and systematic business contacts within the State of Georgia subject it to the personal jurisdiction of this Court pursuant to Georgia s long arm statute and the requirements of due process. 10. Venue is proper in this Court pursuant to 28 U.S.C. 1391 because, as of the date this action was filed, Countrywide and BANA are subject to personal jurisdiction in this District and thus reside in this judicial district. Venue is also proper in this Court because a substantial part of the events and omissions giving rise to plaintiffs claims occurred within this judicial district, and because property that is the subject of this action is situated within this District in Harris County, Georgia. 11. This Court has original jurisdiction of this civil action pursuant to 28 U.S.C. 1332 based on diversity of citizenship and under the Class Action Fairness Act, as codified at 28 U.S.C. 1332(d). 12. The matter in controversy of this civil action exceeds the sum or value of $5,000,000 exclusive of interest and costs. 13. This case is a proposed class action lawsuit in which one or more members of the class of plaintiffs is a citizen of a State different from the defendants. Specifically, the named plaintiffs and many class members are citizens of Georgia and the defendants are citizens of other states, as specified above. 14. There are thousands of members of the proposed class. II. OPERATIVE FACTS 15. Plaintiffs financed their home located in Harris County, Georgia with Countrywide. In connection with the home loan, plaintiffs granted a security deed to 3
Case 4:07-cv-00019-WLS Document 145 Filed 02/02/15 Page 4 of 11 Fairfield Financial Services, Inc. d/b/a Group Financial Southeast, which was succeeded in interest by Countrywide. 16. That security deed was filed in the Office of the Clerk, Superior Court, Harris County, Georgia, and is recorded in Deed Book 605, Page 486, dated December 5, 2002. 17. The underlying loan was paid in full on or about July 29, 2003. 18. O.C.G.A. 44-14-3 required Countrywide to direct the clerk of court where the security deed was filed to cancel the security deed within sixty (60) days of that July 29, 2003 payment in full. Specifically: Whenever the indebtedness secured by an instrument is paid in full, the grantee or holder of the instrument, within sixty (60) days of the date of the full payment, shall cause to be furnished to the clerk of the superior court of the county or counties in which the instrument is recorded a legally sufficient satisfaction or cancellation to authorize and direct the clerk or clerks to cancel the instrument of record. O.C.G.A. 44-14-3(b)(1). 19. Countrywide failed to satisfy this statutory duty because it failed to cancel the security deed within sixty (60) days of the date of full payment of the underlying loan. 20. The security deed granted by plaintiffs (Deed Book 605, page 486) was not cancelled by Countrywide, and an Affidavit of Cancellation was required to be executed and filed with the Clerk of the Superior Court of Harris County, Georgia. Plaintiffs attached to the original complaint in this action an Affidavit for Cancellation that was filed with the clerk of the Superior Court of Harris County, Georgia on December 21, 2004 and recorded in Deed Book 780, page 572. 4
Case 4:07-cv-00019-WLS Document 145 Filed 02/02/15 Page 5 of 11 21. Countrywide failed to take the steps necessary to ensure that the plaintiffs security deed would be cancelled within the statutory sixty (60) day period. Accordingly, plaintiffs made a pre-suit, written demand to Countrywide for the damages specified by O.C.G.A. 44-14-3. 22. By virtue of merger and acquisition, Countrywide s loan servicing entity (Countrywide Home Loans Servicing, LP.) is now Defendant BANA. Accordingly, BANA is responsible to the plaintiffs and the class for all failures of Countrywide, before and after that merger and acquisition, to fulfill its deed-cancellation duties under O.C.G.A. 44-14-3. 23. BANA has also failed to timely cancel security deeds as required by O.C.G.A. 44-14-3 for thousands of BANA customers who were not legacy Countrywide customers. Both those customers and the legacy Countrywide customers have all of the same rights and remedies against BANA under O.C.G.A. 14-14-3. III. DEMAND FOR LIQUIDATED DAMAGES 24. Plaintiffs and all other similarly situated persons are entitled to recover $500 in statutory damages for the violations of O.C.G.A. 44-14-3 alleged above. 25. Pursuant to O.C.G.A. 44-14-3(c), plaintiffs hereby again demand, on behalf of themselves and other similarly situated persons, statutory liquidated damages for each failure of defendants to fulfill their duties under O.C.G.A. 44-14-3. IV. CLASS REPRESENTATION ALLEGATIONS A. Class Definition 26. Plaintiffs bring this action on behalf of themselves and on behalf of the following class, for which they propose certification under Fed. R. Civ. P. 23(b)(3): (a) 5
Case 4:07-cv-00019-WLS Document 145 Filed 02/02/15 Page 6 of 11 all persons who own or owned Georgia residential property, with ownership to be determined in accordance with paragraphs 26-29 of this amended complaint; (b) that was subject to a security instrument for which Countrywide and its subsidiaries or BANA and is subsidiaries; (c) acted as servicer; (d) did not transmit a legally sufficient satisfaction or cancellation of lien to the appropriate Superior Court Clerk; (e) upon payment in full of the underlying mortgage loan; (f) in accordance with O.C.G.A. 44-14-3; (g) between February 12, 1987 and the date of preliminary approval of a settlement or other classwide resolution of this case. A property meeting requirements (a)-(g) is referred to in this amended complaint as a Property. 27. The class includes (a) all current owners of a Property; (b) all persons who owned a Property as of the date of the filing of this action on February 12, 2007. The class does not include persons who sold or otherwise transferred their ownership of a Property prior to the filing of this action. 28. Excluded from the class are: (a) individuals who are or were during the class period partners, associates, officers, directors, shareholders, or employees of Countrywide or BANA; (b) all judges or magistrates of the United States or any state and their spouses; (c) all individuals who timely and properly request to be excluded from the class upon certification; (d) all persons who have previously released Countrywide or BANA from the claims asserted in this amended complaint; and (e) all persons who have already received payment from Countrywide or BANA for alleged violation of O.C.G.A. 44-14-3 with respect to a Property (unless that person is a member of the proposed class by virtue of his or her ownership of a different Property as to which he or she has received no such payment). 6
Case 4:07-cv-00019-WLS Document 145 Filed 02/02/15 Page 7 of 11 B. Numerosity 29. The class includes thousands of persons and is so numerous that individual joinder of all class members would be impractical. C. Common Questions of Law and Fact 30. Questions of law and fact of common and general interest to the class exist as to all class members, including whether defendants complied with their duty to cause to be furnished satisfactions or cancellations of indebtedness in accordance with O.C.G.A. 44-14-3. All members of the class share a common interest in demonstrating that defendants failed to fulfill that duty, entitling the class members to the statutory damages. D. Typicality 31. Plaintiffs claims are typical of the claims of other class members, in that all such claims arise out of the failure of BANA, which now includes Countrywide s loan servicing entity, to take the proper steps to ensure that security deeds are cancelled within the statutory sixty (60) day time period. Plaintiffs and the class members have the same rights and the same statutory remedies. E. Adequate Representation 32. Plaintiffs will fairly and adequately protect the interests of the members of the class and have no interest antagonistic to or in conflict with those of class members. 33. Plaintiffs have retained class counsel competent to prosecute class actions, including consumer class actions, and they intend to prosecute this action vigorously for the benefit of the class. F. Superiority 7
Case 4:07-cv-00019-WLS Document 145 Filed 02/02/15 Page 8 of 11 34. A class action is superior to other available methods for a fair and efficient adjudication of this controversy since individual joinder of all members of the class is impractical. Further, as damages suffered by each class member will be relatively small, the expense and burden of the individual litigation would make is difficult or impossible for individual members of the class to obtain relief. In addition, many members of the proposed class are unaware that they may be entitled to statutory damages. The interests of judicial economy favor adjudicating the claims as a class. G. Common Questions of Law and Fact Predominate 35. Questions of law and fact predominate over any questions affecting only individual class members, and a class action is superior to other available methods for the fair and efficient adjudication of this controversy. The issue of whether defendants must pay statutory damages is the same for every potential class member. The precise date of loan payoff and the fact of whether the security deed was properly cancelled within sixty (60) days thereof, along with the date that defendants attempted to obtain cancellation of the security deed, is determinable for any particular class member using objective criteria and can be resolved through the use of a computer or clerk without the need for an individual hearing on each claim. V. RELIEF SOUGHT 36. Plaintiffs seek on behalf of themselves and on behalf of each class member statutory liquidated damages, pursuant to O.C.G.A. 44-14-3(c), for each failure of the defendants to fulfill their statutory duty under O.C.G.A. 44-14-3 to plaintiffs and the class members. 8
Case 4:07-cv-00019-WLS Document 145 Filed 02/02/15 Page 9 of 11 37. Plaintiffs seek on behalf of themselves and on behalf of the class reasonable attorney s fees. 38. Plaintiffs seek on behalf of themselves and on behalf of the class interest and any further relief provided by law and as the Court deems just and proper for each member of the class. WHEREFORE, Plaintiffs, individually and in their representative capacity on behalf of the class of all similarly situated persons, respectfully request that the Court certify this case as a class action as follows: (a) That the case be certified as a class action pursuant to Fed. R. Civ. P. 23(b)(3); (b) That the Court award the class damages, attorney s fees, interest and any further damages and relief as the Court deems just and proper for each member of the class; and (c) That plaintiffs and the class have a trial by jury. This 2 nd day of February, 2015. Respectfully submitted: BEN B. PHILIPS Georgia Bar No.: 575550 PHILIPS-BRANCH 1415 Wynnton Road /s/ Charles A. Gower CHARLES A. GOWER Georgia Bar No. 303500 C. AUSTIN GOWER, JR. Georgia Bar No. 303528 CHARLES A. GOWER, P.C. 1425 Wynnton Road P. O. Box 5509 Columbus, GA 31906 (706)324-5685 9
Case 4:07-cv-00019-WLS Document 145 Filed 02/02/15 Page 10 of 11 Post Office Box 2808 Columbus, Georgia 31902 (706) 323-6461 MICHAEL B. TERRY Georgia Bar No. 702582 FRANK M. LOWREY IV Georgia Bar No. 410310 BONDURANT MIXSON & ELMORE LLP 1201 W. Peachtree St. NW 3900 One Atlantic Center Atlanta, GA 30309 (404) 881-4100 Attorneys for Plaintiffs 10
Case 4:07-cv-00019-WLS Document 145 Filed 02/02/15 Page 11 of 11 CERTIFICATE OF SERVICE I hereby certify that I have this date electronically filed with the Clerk of Court this Amended Class Action Complaint using the CM/ECF system which will automatically send e-mail notification of such filing to all attorneys of record. This 2 nd day of February, 2015. /s/ Charles A. Gower CHARLES A. GOWER Georgia Bar No. 303500 11