Case 1:17-cv-00422-CC Document 8 Filed 06/13/17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION HUGH BROWN, JR., : : Plaintiff, : CIVIL ACTION NO. : vs. : 1:17-CV-0422-CC : CITIMORTGAGE, INC., : : Defendant. : ORDER This matter is before the Court on the Final Report and Recommendation (the R&R ) [Doc. No. 6] issued by Magistrate Judge Alan J. Baverman on May 26, 2017. Magistrate Judge Baverman recommends that the Court grant Defendant CitiMortgage, Inc. s Motion to Dismiss Plaintiff s Complaint [Doc. No. 5], which was not opposed by Plaintiff Hugh Brown, Jr. The record reflects that no objections to the R&R have been filed and that the time period permitted for filing any such objections has elapsed. Having reviewed the R&R for plain error in accordance with United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983), the Court finds that the R&R is correct both in fact and in law. Accordingly, the Court ADOPTS the R&R as the opinion of this Court and ORDERS that Defendant CitiMortgage, Inc. s Motion to Dismiss Plaintiff s Complaint [Doc. No. 5] is hereby GRANTED. Plaintiff Hugh Brown, Jr. s Complaint is thus DISMISSED with prejudice. SO ORDERED this 13th day of June, 2017. s/ CLARENCE COOPER CLARENCE COOPER SENIOR UNITED STATES DISTRICT JUDGE
Case 1:17-cv-00422-CC Document 6 Filed 05/26/17 Page 1 of 20 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION HUGH BROWN, JR., : : Plaintiff, : CIVIL ACTION FILE NO. : 1:17-cv-00422-CC-AJB v. : : CITIMORTGAGE, INC., : : Defendant. : UNITED STATES MAGISTRATE JUDGE S FINAL REPORT AND RECOMMENDATION Presently before the Court is a motion to dismiss the complaint filed by Defendant CitiMortgage, Inc. ( Citi or Defendant ) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. [Doc. 5]. For the reasons set forth herein, the undersigned RECOMMENDS that the motion be GRANTED and that the complaint be DISMISSED WITH PREJUDICE. I. Background On or about August 16, 2005, Plaintiff Hugh Brown, Jr., entered into a mortgage loan agreement with Amtrust Mortgage Corporation ( Amtrust ) for purchase of property located at 4138 Sweetwater Falls, Ellenwood, Georgia 30294 (the Property ). [Doc. 1-1 1]. To secure the loan, Plaintiff granted a security deed
Case 1:17-cv-00422-CC Document 6 Filed 05/26/17 Page 2 of 20 to Mortgage Electronic Registration Systems, Inc. ( MERS ), as nominee for Amtrust. [Doc. 1-1 2]. On or about December 4, 2009, Amtrust went into receivership, and the Federal Deposit Insurance Corporation ( FDIC ) took over its mortgage loans. [Doc. 1-1 3]. In or around April 2010, MERS purported to assign the security deed to Defendant Citi. [Doc. 1-1 4, 16]. On December 1, 2015, Defendant foreclosed on the Property, and Najarian Capital, LLC, purchased the Property. [Doc. 1-1 7-8]. Plaintiff initiated this civil action pro se in the Superior Court of DeKalb County, Georgia, on November 8, 2016, asserting claims for fraud/fraudulent assignment, slander of title, and wrongful foreclosure. 1 [Doc. 1-1 at 5-13]. He also seeks a declaratory judgment stating that Defendant had no standing to conduct the foreclosure sale and requests that the foreclosure sale be set aside and the dispossessory action be dismissed, that the Court strike the assignment from the DeKalb County real estate records, that the Court determine the identity of the rightful owner of the Property, and that Plaintiff be awarded damages and the costs and expenses he incurred in this litigation. [Doc. 1-1 at 12-13]. Citi is the only named defendant. [Doc. 1-1 at 5]. 1 The Superior Court of DeKalb County assigned the matter Civil Action No. 16CV11746-2. [Doc. 1-1 at 5]. 2
Case 1:17-cv-00422-CC Document 6 Filed 05/26/17 Page 3 of 20 On February 3, 2017, Defendant removed the action to this Court. 2 [Doc. 1]. It then filed the pending motion to dismiss on February 24, 2017. [Doc. 5]. Plaintiff did not file a response. (See Dkt.). The time for briefing having run, the undersigned now enters this Report and Recommendation ( R&R ) for the District Judge s consideration. II. Plaintiff s Failure to Respond Under this Court s Local Rules, the [f]ailure to file a response shall indicate that there is no opposition to the motion. N.D. Ga. R. 7.1B; Welch v. Delta Airlines, Inc., 978 F. Supp. 1133, 1148 (N.D. Ga. 1997). [T]he court, in its discretion, may waive a Local Rule. Edwards v. Shalala, 846 F. Supp. 997, 998 n.2 (N.D. Ga. 1994). Additionally, courts in this District generally do not grant a motion to dismiss for failure to state a claim based on a pro se plaintiff s failure to respond to the motion. Daniel v. United States, 891 F. Supp. 600, 602 n.1 (N.D. Ga. 1995) (Hull, J.) (stating that a motion to dismiss for failure to state a claim cannot be granted on the basis that the plaintiff fails to respond); Johnson v. Am. Meter Co., 2 Defendant removed the matter to this Court on grounds of diversity-of-citizenship jurisdiction, pursuant to 28 U.S.C. 1332, explaining that Plaintiff is a citizen of Georgia and Defendant is a citizen of New York and Missouri and showing that both the security deed and more recent tax records indicate that the value of the Property exceeds $75,000. [Doc. 1 at 4-8; Doc. 1-2 at 4; Doc. 1-3 at 2]. 3
Case 1:17-cv-00422-CC Document 6 Filed 05/26/17 Page 4 of 20 412 F. Supp. 2d 1260, 1262 n.3 (N.D. Ga. 2004) (Carnes, J.) (addressing merits of motion to dismiss despite plaintiff s failure to timely respond to motion to dismiss); see also McCall v. Pataki, 232 F.3d 321, 322-23 (2d Cir. 2000). This action, however, represents the fourth time this Court has seen an action in which Plaintiff attempted to assert claims related to foreclosure or dispossession of the Property. On November 3, 2014, Plaintiff filed a pro se action against Citi and Mortgage Lenders Network, USA, in the Superior Court of DeKalb County, Georgia, asserting claims for fraud, fraudulent assignment, quiet title, and damages. 3 Brown v. CitiMortgage, Inc., Civ. Action No. 1:15-cv-00152-CC (N.D. Ga.) ( Brown I ), ECF No. 1-1 at 1-2, 5-7. Citi removed the matter to this Court on January 16, 2015. Id., ECF No. 1. After granting Plaintiff extended leave to file proof of service of process, the undersigned entered an R&R recommending dismissal. Id., ECF No. 14. On September 2, 2015, the District Judge adopted the R&R and dismissed Plaintiff s claims without prejudice for failure to file proof of service. Id., ECF No. 16. Shortly thereafter, on November 27, 2015, Plaintiff filed a new pro se action in this Court against MERS, Amtrust, and Citi, claiming that the defendants failed to 3 The Superior Court of DeKalb County assigned the matter Civil Action No. 14CV10599-6. Brown I, ECF No. 1-1 at 2. 4
Case 1:17-cv-00422-CC Document 6 Filed 05/26/17 Page 5 of 20 honor his request to rescind the loan agreement in violation of the Truth in Lending Act ( TILA ), 15 U.S.C. 1601. Brown v. CitiMortgage, Inc., Civ. Action No. 1:15-cv-04143-CC (N.D. Ga.) ( Brown II ), ECF No. 1. After Citi and MERS filed motions to dismiss to which Plaintiff did not respond, the undersigned entered an R&R recommending dismissal of the claims against Citi for failure to state a plausible claim for relief and recommending that the claims against the remaining two defendants be dismissed due to Plaintiff s failure to show proof of service of process. Id., ECF No. 5. On June 23, 2016, the District Judge adopted the R&R and dismissed the matter. Id., ECF No. 9. While Brown II was pending, the Property was foreclosed upon, and Najarian Capital purchased it. [Doc. 1-1 at 7-8]. Najarian Capital then initiated a dispossessory action against Plaintiff in the Magistrate Court of DeKalb County, and Plaintiff removed the matter pro se to this Court on January 4, 2016. 4 Najarian Capital, LLC v. Brown, Civ. Action No. 1:16-cv-00006-CC (N.D. Ga.) ( Brown III ), ECF No. 1-1 at 2. Upon review of the removal action, the undersigned recommended that the District Judge sua sponte remand the matter for lack of federal subject-matter 4 The Magistrate Court of DeKalb County assigned the matter Case No. 15D067966. Brown III, ECF No. 1-1 at 2. 5
Case 1:17-cv-00422-CC Document 6 Filed 05/26/17 Page 6 of 20 jurisdiction. Id., ECF No. 3. Plaintiff cursorily objected, requesting that the dispossessory action be recharacterized as a federal action. Id., ECF No. 5. On October 12, 2016, the District Judge adopted the recommendation over Plaintiff s objection and ordered that the action be remanded to the Magistrate Court of DeKalb County. Id., ECF No. 6. As Brown III was drawing to a close, Plaintiff filed the present action against Citi in the Superior Court of DeKalb County, and Citi removed the case to this Court. [See Doc. 1-1 at 1 (filed Nov. 8, 2016, and removed Dec. 16, 2016)]. Plaintiff filed no response to the motion to dismiss. (See Dkt.). Based on his history of serial litigation, repeated failure to prosecute claims, and failure to justify the removal action, it is readily apparent that Plaintiff is not pursuing valid claims but instead is simply abusing the judicial process in an attempt to delay his dispossession of the Property. The undersigned therefore finds no grounds for recommending to the District Judge that he exercise his discretion to waive Local Rule 7.1B. Accordingly, it is hereby RECOMMENDED that the District Judge GRANT Defendant s motion to dismiss as unopposed. Nevertheless, in case the District Judge chooses to waive Local Rule 7.1B, the undersigned shall also address the merits of Defendant s motion despite Plaintiff s failure to respond. 6
Case 1:17-cv-00422-CC Document 6 Filed 05/26/17 Page 7 of 20 III. Legal Standard To avoid dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although the factual allegations of a complaint must generally be taken as true when ruling on a motion to dismiss, a court should not accept conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts. Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11 th Cir. 200. While a complaint need not contain detailed factual allegations, mere labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Twombly, 550 U.S. at 555; accord Iqbal, 556 U.S. at 678-79 ( Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice and are not entitled to the assumption of truth. ). Rather, plaintiffs are required to make factual allegations that are enough to raise a right to relief above the speculative level. Twombly, 550 U.S. at 555. In order to withstand dismissal, complaints must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory. Fin. Sec. Assurance, Inc. v. Stephens, Inc., 7
Case 1:17-cv-00422-CC Document 6 Filed 05/26/17 Page 8 of 20 500 F.3d 1276, 1282-83 (11 th Cir. 2007) (per curiam) (internal quotation marks omitted). A complaint also may be dismissed pursuant to Rule 12(b)(6) when, on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action. Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11 th Cir. 1993). In reviewing complaints drafted by pro se plaintiffs, courts give them a liberal construction and hold pro se complaints, however inartfully pleaded,... to less stringent standards than formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007). IV. Discussion While Plaintiff s claims are not succinctly stated, it is clear that they are grounded in his theory that because Amtrust s assets were in receivership with the FDIC at the time of the purported assignment to Citi, MERS could no longer act as Amtrust s nominee, and thus MERS s assignment of the security deed to Citi was ineffective, and Citi did not become the secured creditor. [Doc. 1-1 at 5-11]. He contends that the assignment was therefore a fraudulent assignment; that the fraudulent assignment... slandered the title of [the] [P]roperty ; and that Citi had no standing to foreclose on the Property. [Id. 11, 16-20]. He also appears to suggest that because the assignment was faulty, Citi was improperly named in the notice of 8
Case 1:17-cv-00422-CC Document 6 Filed 05/26/17 Page 9 of 20 foreclosure as the entity with full authority to negotiate, amend, and modify all terms of the mortgage with debtor, in violation of O.C.G.A. 44-14-162.2, [id. 13, 27], and that Citi could not foreclose on the Property unless it also held the underlying note, [id. 24]. Defendant moves for all of Plaintiff s claims to be dismissed on the grounds that the security deed was properly assigned to it and that, in any event, Plaintiff does not have standing to challenge the assignment. 5 [Doc. 5; Doc. 5-1]. In conjunction with its motion, Defendant proffers a copy of the security deed and subsequent assignment showing that on August 16, 2005, to secure a note in the amount of $164,988.00, Plaintiff executed a security deed for the Property in favor of MERS, as nominee for Amtrust and its successors and assigns, 6 [Doc. 5-2 at 2-3], and on April 9, 2010, MERS 5 Defendant also states in its motion to dismiss that it has not been properly served. [Doc. 5 at 2]. Because it does not present any argument or authority, state what was improper about service, or even state whether Plaintiff made a service attempt, the Court finds that the issue is not properly before the Court and gives it no further consideration. See Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11 th Cir. 2000) (finding that a party s failure to brief and argue an issue before the district court is grounds for declaring it abandoned); Ward v. United States, 154 F.R.D. 291, 293 (M.D. Fla. 1994) (court refuses to supply argument for party). 6 The August 16, 2005, security deed bears a stamp showing that it was recorded in DeKalb County Deed Book 17913 on Page 86. [Doc. 5-2 at 2]. 9
Case 1:17-cv-00422-CC Document 6 Filed 05/26/17 Page 10 of 20 assigned the security deed to Citi, 7 [Doc. 5-3 at 2-3]. Defendant further argues that Plaintiff s claims fail because the allegations are insufficient to satisfy the pleading requirements of Rule 8 and (in the case of the fraud claims) Rule 9(b) of the Federal Rules of Civil Procedure. [Id.]. A. Faulty Assignment The undersigned agrees with Defendant that Plaintiff s faulty-assignment theory does not give rise to a reasonable presumption that Citi did not have the right to foreclose on the Property. As Defendant points out, Georgia courts and judges in this District have expressly rejected the argument that MERS cannot, as grantee and nominee of the original lender, effect assignment of a security deed. [Doc. 5-1 at 6-8 (citing Larose v. Bank of Am., N.A., 321 Ga. App. 465, 467-68, 740 S.E.2d 882, 884 (2013) ( Larose granted MERS the full power to assign the property to a third party..., and his argument that the assignment was invalid is without merit. ); Montgomery v. Bank of Am., 321 Ga. App. 343, 344-45, 740 S.E.2d 434, 437 (2013) (holding that the security deed expressly conveyed title to the interests in the security deed to MERS, gave MERS the right to invoke the power of sale, and authorized MERS to 7 The April 9, 2010, assignment bears a stamp showing that it was recorded in DeKalb County Deed Book 21931, page 467, on April 15, 2010. [Doc. 5-3 at 2-3]. 10
Case 1:17-cv-00422-CC Document 6 Filed 05/26/17 Page 11 of 20 assign its rights and interests in the security deed ); Nicholson v. Onewest Bank, Civ. Action No. 1:10-CV-0795-JEC-AJB, 2010 WL 2732325, at *3-4 & n.3 (N.D. Ga. Apr. 20, 2010) (Baverman, M.J.) (rejecting plaintiff s argument that assignment of security deed by MERS as nominee for the lender was improper), adopted at 2010 WL 2732329 (N.D. Ga. June 7, 2010) (Carnes, J.))]. See also Dunn v. BAC Home Loan Servs., L.P., Civ. Action File No. 1:12-CV-1047-TWT, 2013 WL 1755808, at *2 (N.D. Ga. Apr. 23, 2013) (Thrash, J.) (noting that Georgia courts have approved of MERS acting as a conduit for electronic transfers of mortgage loans ) (citing Taylor, Bean & Whitaker Mortg. Corp. v. Brown, 276 Ga. 848 n.1, 583 S.E.2d 844, 845 n.1 (2003)); Brown v. Fannie Mae, Civ. Action File No. 1:10-CV-03289-TWT-GGB, 2011 U.S. Dist. LEXIS 31478, at *16 (N.D. Ga. Feb. 28, 2011) (Brill, M.J.) (holding that a security deed naming MERS as grantee and nominee for the lender gave MERS the right to exercise all of the interests granted by the security deed), adopted at 2011 U.S. Dist. LEXIS 31471 (N.D. Ga. Mar. 24, 2011) (Thrash, J.). Moreover, under Georgia law, a security deed which includes the power of sale is a contract and its provisions are controlling as to the rights of the parties thereto and their privies. Montgomery, 321 Ga. App. at 344, 740 S.E.2d at 436. Here, the 11
Case 1:17-cv-00422-CC Document 6 Filed 05/26/17 Page 12 of 20 security deed Plaintiff granted expressly permits MERS, as nominee, to exercise all of the lender s rights, and it also expressly contemplates assignments by MERS as nominee for the lender s successors. [See Doc. 5-2 at 3 8 (stating that the security deed secures to Lender: (a) the repayment of the debt evidenced by the Note, with interest, and all renewals, extensions and modifications of the Note;... and (c) the performance of Borrower s covenants and agreements under this Security Instrument and the Note and specifying that, for that purpose, Borrower does hereby grant and convey to MERS (solely as nominee for Lender and Lender s successors and assigns) and the 8 Generally, the Court must convert a Rule 12(b)(6) motion to dismiss to a Rule 56 motion for summary judgment if it considers materials outside of a complaint. See Fed. R. Civ. P. 12(d); Day v. Taylor, 400 F.3d 1272, 1275-76 (11 th Cir. 2005). However, the Court need not make this conversion when considering a document attached to a complaint or to a motion to dismiss if the attached document is (1) central to the plaintiff s claim and ( undisputed. Day, 400 F.3d at 1276; Horsley v. Feldt, 304 F.3d 1125, 1134 (11 th Cir. 200 (discussing documents attached to motion to dismiss); Clark v. Bibb Cnty. Bd. of Educ., 174 F. Supp. 2d 1369, 1370 (M.D. Ga. 2001) ( A court evaluating a motion to dismiss for failure to state a claim upon which relief can be granted... may... consider any attachments to the complaint, matters of public record, orders, and items appearing in the record. ). The documents Defendant attached to the motion to dismiss consist of a recorded copy of Plaintiff s security deed, [Doc. 5-2], and a recorded copy of the subsequent assignment of the security deed, [Doc. 5-3]. Clearly, both of these documents are central to Plaintiff s claims, and despite Defendant s having certified service of the motion to dismiss, [Doc. 5 at 4; Doc. 5-1 at 18], Plaintiff has not made any filing disputing the documents. As a consequence, the Court concludes that it may consider the documents without converting Defendant s motion to a motion for summary judgment. 12
Case 1:17-cv-00422-CC Document 6 Filed 05/26/17 Page 13 of 20 successors and assigns of MERS, with power of sale, the following described property.... ) (emphasis added)]. Plaintiff s security deed also provides: Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument; but... 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 Lender including, but not limited to, releasing and canceling this Security instrument. [Doc. 5-2 at 3]. Thus, the security deed expressly conveyed title to the interests in the security deed to MERS, gave MERS the right to invoke the power of sale, and authorized MERS to assign the security deed to a successor. See Montgomery, 321 Ga. App. at 345, 740 S.E.2d at 437 (reaching the same conclusion after examining identical contract language); see also Arthur v. Fargo, Civ. Action File No. 1:14-cv-2913-SCJ, 2015 WL 11978652, at *3 (N.D. Ga. Mar. 18, 2015) (Jones, J.) (finding original lender s receivership status to have no effect on subsequent assignment of security deed because it was MERS not the original lender that effected the assignment). Additionally, the undisputed record shows that MERS in fact assigned the security deed to Citi on April 9, 2010, and that the assignment was recorded in the county deed book on April 15, 2010. [Doc. 5-3 at 2-3]. Thus, to the extent that Plaintiff s claims rest on his assertion that MERS grantee and nominee 13
Case 1:17-cv-00422-CC Document 6 Filed 05/26/17 Page 14 of 20 of the original lender and its successors and assigns was, as a matter of law, powerless to effect assignment of the security deed or that it failed to do so prior to the 2015 foreclosure sale, his claims are meritless. Defendant is also correct in arguing that even if the assignment were faulty, such deficiency alone would not provide Plaintiff grounds for challenging the foreclosure sale. The opinion of the Supreme Court of Georgia in Ames v. JP Morgan Chase Bank, N.A., 298 Ga. 732, 783 S.E.2d 614 (2016), clearly precludes this theory of recovery: in Ames, the plaintiffs, like Plaintiff here, claimed that the initiation of non-judicial foreclosure proceedings by an assignee of the security deed was wrongful because the assignment was flawed. Ames, 298 Ga. at 738, 783 S.E.2d at 619. The court explained that the plaintiffs, like any other plaintiff debtors suing in tort (for wrongful foreclosure or the like) or in contract (for a breach of the security deed or the assignment), must establish standing to sue on the ground asserted, and that to do so, they must show an injury in fact that was caused by the breach of a duty owed by the defendants to the plaintiffs and that will be redressed by a favorable decision from the court. Id. at 738, 783 S.E.2d at 619. The court determined that the plaintiffs could not show that they met the standing requirement, as the security deed did not afford them the right to dispute its assignment to a third party; they were not a party to the 14
Case 1:17-cv-00422-CC Document 6 Filed 05/26/17 Page 15 of 20 assignment of the security deed and therefore derived no additional rights from the assignment; and status as a third-party beneficiary provides standing to enforce only promises made directly for the third party s benefit, of which there were none in the assignment. Id. at 738, 783 S.E.2d at 619. Thus, the court concluded that while the plaintiff debtors might have the right to sue where the foreclosing entity did not exercise the power of sale fairly, for example by failing to comply with statutory and contractual notice requirements, they did not have standing to bring a wrongful-foreclosure claim based on an allegedly faulty assignment. Id. at 738-40, 783 S.E.2d at 619-20. Here, as in Ames, Plaintiff has not pointed to any provision in the security deed that would afford him the right to dispute the assignment of the security deed to a third party, and the Court finds none. [See Doc. 5-2]. Indeed, the security deed expressly contemplates that the original lender would have successors and assigns. [Id. at 2]. Likewise, Plaintiff has not pointed to any provision of the assignment showing that he was a party to the assignment or that it contained any additional promises made for his benefit, nor has the Court s review revealed such provision. [See Doc. 1-1; Doc. 5-3]. Additionally, under Georgia law, an improperly executed assignment is not facially void, but is instead a voidable contract that is unenforceable at the election of 15
Case 1:17-cv-00422-CC Document 6 Filed 05/26/17 Page 16 of 20 the party to the assignment that was injured. Stoudemire v. HSBC Bank USA, 333 Ga. App. 374, 375-76, 776 S.E.2d 483, 484 (2015) (explaining that a void contract is one that has no effect whatsoever and is incapable of being ratified, such as [c]ontracts to do illegal or immoral things, contracts against public policy, and gambling contracts, while contracts such as fraudulent contracts and contracts entered under duress are voidable at the election of the injured party, and holding that a forged assignment is voidable rather than facially void ). The complaint here contains no allegation that any party to an assignment sought to void it. [See Doc. 1-1, passim]. For these reasons, the undersigned concludes that even if the assignment was faulty, the debtor plaintiff cannot state a plausible claim for relief on that basis. B. Holder of the Note Plaintiff s split the note theory is also precluded as a matter of law, as the Supreme Court of Georgia directly considered and rejected the argument that a party seeking to exercise the power of sale in a deed must also hold the note secured by the deed. You v. JP Morgan Chase Bank, 293 Ga. 67, 73, 743 S.E.2d 428, 432 (2013). The court recognized that a promissory note is a negotiable instrument subject to Article 3 of the Uniform Commercial Code, that Article 3 provides generally that only the holder of an instrument is entitled to enforce the instrument, and that problems 16
Case 1:17-cv-00422-CC Document 6 Filed 05/26/17 Page 17 of 20 such as double liability may arise when the note and deed are transferred to different transferees. Id. at 73, 743 S.E.2d at 432-33. Nevertheless, the court held that [u]nder current Georgia law, the holder of a deed to secure debt is authorized to exercise the power of sale in accordance with the terms of the deed even if it does not also hold the note or otherwise have any beneficial interest in the debt obligation underlying the deed. Id. at 74, 743 S.E.2d at 433. It is thus clear that the holder of the deed may foreclose on the secured property even if the deed holder does not also hold the note. C. Recommendation All of Plaintiff s claims are based on his faulty-assignment theory and his apparent suggestion that the secured creditor must hold both the note and the security deed. [See Doc. 1-1]. For the reasons set forth above, the undersigned finds both theories to be without merit. Accordingly, it is hereby RECOMMENDED that Defendant s motion to dismiss Plaintiff s complaint for failure to state a claim be GRANTED. [Doc. 5]. The Eleventh Circuit has stated that a district court may not dismiss a complaint with prejudice without first giving the [pro se] plaintiff an opportunity to amend the complaint if a more carefully drafted complaint might state a claim. See Taylor v. McSwain, 335 Fed. Appx. 32, 33 (11 th Cir. June 12, 2009) (citing Bank v. Pitt, 17
Case 1:17-cv-00422-CC Document 6 Filed 05/26/17 Page 18 of 20 928 F.2d 1108, 1112 (11 th Cir. 1991), overruled on other grounds by Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11 th Cir. 200 (en banc)). Dismissal with prejudice is proper, however, if the pro se plaintiff has indicated that he does not wish to amend his complaint or if a more carefully drafted complaint could not state a valid claim. Jemison v. Mitchell, 380 Fed. Appx. 904, 907 (11 th Cir. May 27, 2010). Plaintiff should not be afforded an opportunity to amend in this case. Given the Plaintiff s repeated attempts to avoid foreclosure and dispossession by filing lawsuits that have been subsequently dismissed by the courts, the total absence of a cognizable legal claim for relief in any of the claims asserted, and his failure to respond to the motion to dismiss, Plaintiff has supplied the Court with no basis upon which to conclude that a more carefully drafted complaint could state any valid claim in this case. See LSREF2 Baron, LLC v. Alexander SRP Apts., LLC, 15 F. Supp. 3d 1351, 1354 (N.D. Ga. 2013) (Totenberg, J.) ( As [borrower] lacks standing to contest the assignment of the security interests to [lender] under Georgia law, an amendment to its... Complaint to contest the assignment would be futile. ) (alterations omitted). 18
Case 1:17-cv-00422-CC Document 6 Filed 05/26/17 Page 19 of 20 Based on all of these considerations, the undersigned RECOMMENDS that the District Court NOT PROVIDE Plaintiff with an opportunity to amend his complaint. V. Conclusion For the aforementioned reasons, the undersigned RECOMMENDS that Defendant s motion to dismiss, [Doc. 5], be GRANTED and the claims asserted against Defendant in this matter be DISMISSED WITH PREJUDICE. 19
Case 1:17-cv-00422-CC Document 6 Filed 05/26/17 Page 20 of 20 2017. The Clerk is DIRECTED to terminate the reference to the undersigned. IT IS SO RECOMMENDED and DIRECTED, this the 26th day of May, 20