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Paulo v. Onewest Bank, FSB

United States District Court, N.D. Georgia, Atlanta Division

July 18, 2014

CAROLE PAULO, Plaintiff,
v.
ONEWEST BANK, FSB, and MCCALLA RAYMER, LLC, Defendants.

OPINION AND ORDER

WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Magistrate Judge Janet F. King's Final Report and Recommendation [25] ("R&R"), which recommends denying as moot OneWest Bank, FSB's ("OneWest") Motions to Dismiss [3, 10] Plaintiff Carole Paulo's ("Plaintiff") original Complaint. The R&R also recommends granting OneWest's and McCalla Raymer, LLC's ("McCalla") (together, "Defendants") Motions to Dismiss [18, 21] Plaintiff's Amended Complaint [16], and dismissing Plaintiff's claims with prejudice.[1]

I. BACKGROUND[2]

On August 22, 2006, Plaintiff obtained a $319, 920 loan from Market Street Mortgage Corporation ("Market Street") to purchase her home in Dacula, Georgia (the "Property"). Repayment of the loan was secured by a deed ("Security Deed") to the Property. Under the terms of the Security Deed, Plaintiff "grant[ed] and convey[ed] to Mortgage Electronic Registration Systems, Inc. ("MERS") (solely as nominee for [Market Street] and [Market Street's] successors and assigns) and the successors and assigns of MERS, with power of sale, the [Property]." (Compl. Ex. C).

On January 6, 2011, MERS, on behalf of Market Street, assigned all of Market Street's rights, title, and interest in the Security Deed to OneWest (the "Assignment").[3]

On October 8, 2013, Plaintiff, proceeding pro se , filed her Complaint against OneWest in the Superior Court of Gwinnett County, Georgia, asserting claims for violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq., and state law claims for invalid assignment, wrongful foreclosure, and fraud. Plaintiff sought rescission of the loan and damages in the amount of $74, 950.

On November 5, 2013, due to Plaintiff's default on her loan obligations and pursuant to the terms of the Security Deed, McCalla, on behalf of OneWest, foreclosed on the Property and sold it at a foreclosure sale.

On November 8, 2013, OneWest removed the Gwinnett County Action to this Court based on federal question and diversity jurisdiction and moved to dismiss Plaintiff's Complaint for failure to state a claim.

On November 18, 2013. Plaintiff filed an Amended Complaint [16], seeking to add McCalla as an additional defendant to this action. Plaintiff asserts claims for: (i) Unlawful Foreclosure; (ii) Wrongful Foreclosure as a Tort; (iii) Equitable Relief; (iv) Dispossess [sic] Proceedings; (v) Punitive Damages (Count Five); and (vi) Attorneys Fees.[4]

On November 25, 2013, OneWest filed its Motion to Dismiss the Amended Complaint [18] for failure to state a claim.

On December 20, 2013, McCalla filed its Motion to Dismiss the Amended Complaint [21] for failure to state a claim.

On May 29, 2014, Magistrate Judge King issued her R&R, recommending that OneWest's Motion to Dismiss Plaintiff's original Complaint be denied as moot, that Defendants' Motions to Dismiss Plaintiff's Amended Complaint be granted, and that Plaintiff's claims be dismissed with prejudice.

The parties have not objected ...


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