United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
THOMAS W. THRASH, Jr., District Judge.
This is an action for wrongful foreclosure. It is before the Court on the Defendant Rubin Lublin's Motion for Judgment on the Pleadings [Doc. 6]; the Defendants Countrywide Home Loans Servicing, L.P.; HSBC Bank USA, N.A.; MERS; and Nomura Home Equity Loan, Inc. Asset-Backed Certificates Series 2005-FM1's Motion for Leave to File Excess Pages [Doc. 9]; the Defendants Countrywide Home Loans Servicing, L.P.; HSBC Bank USA, N.A.; MERS; and Nomura Home Equity Loan, Inc. Asset-Backed Certificates Series 2005-FM1's Motion to Dismiss [Doc. 10]; and the Plaintiff's First Motion for Extension of Time to Respond [Doc. 16].
A. Procedural History
On September 3, 2013, in the Superior Court of Fulton County, the Plaintiff, Khari Cummings, filed suit against the Defendants, Countrywide Home Loans Servicing, L.P.; HSBC Bank USA, N.A.; Mortgage Electronic Registration System; and Nomura Home Equity Loan, Inc. Asset-Backed Certificates Series 2005-FM1. The Defendants removed the suit to this Court on October 3, 2013, and filed the instant motions.
The Plaintiff never responded to the Defendant Rubin Lublin's Motion for Judgment on the Pleadings [Doc. 6] and the Court deems that motion unopposed. The Plaintiff filed an untimely motion to extend time to respond to the Defendants Countrywide Home Loans Servicing, L.P.; HSBC Bank USA, N.A.; MERS; and Nomura Home Equity Loan, Inc. Asset-Backed Certificates Series 2005-FM1's motion to dismiss. The response time had already passed and the motion had been submitted to the Court. The Plaintiff's counsel contends that she had several leaves of absences in place at the time the response time was running and she was ill. In any event, the Defendants informed the Court and the Plaintiff that they did not oppose the Plaintiff's untimely request for an extension of time and the Court GRANTS the Plaintiff's First Motion for Extension of Time to Respond [Doc. 16].
B. Facts as Alleged in Complaint
On both a motion for judgment on the pleadings and a motion to dismiss, the Court accepts as true the facts alleged in the Plaintiff's complaint. The Plaintiff contends he has an "ownership interest" in property located at 5067 Windsor Forrest Lane, College Park, Fulton County, Georgia 30349. The Plaintiff acquired title to this Property by Warranty Deed on March 30, 2005. The Plaintiff executed a Deed to Secure Debt in the amount of $105, 000 to Lender Fremont Investment & Loan. The Plaintiff also executed a second Deed to Secure Debt in the amount of $26, 400 to Lender Fremont Investment & Loan.
The Property was placed in a Real Estate Mortgage Investment Conduit under the terms of a Pooling and Servicing Agreement. Wells Fargo is the Custodian and Master Servicer of the Real Estate Mortgage Investment Conduit. HSBC Bank USA, N.A. is the Trustee of the Real Estate Mortgage Investment Conduit. Nomura Home Equity Loan, Inc. Asset-Backed Certificates Series 2005-FM1 is the Issuing Entity of the Real Estate Mortgage Investment Conduit which has 4, 688 loans with an approximate pool value of $892, 335, 000. Countrywide Home Loans Servicing, L.P. is the Servicer of the loan.
The Security Deed recites that MERS is the nominee for Lender and Lender's successors and assigns and that MERS is the grantee under the Security Instrument. The Security Deed lists Fremont Investment & Loan as the Lender. The Plaintiff contends without explanation that this "confusion in the chain of title creates doubts as to the validity of documents and authority of signatories in the transactions, transfers and assignments in the instant case."
The Plaintiff alleges that the chain of title reflects no assignments from March 30, 2005 until May 12, 2010. The Plaintiff contends this is a "gap in the legal chain of title" which requires the Defendants to establish the validity of their legal standing to conduct foreclosure proceedings. The Plaintiff contends that the Defendants fraudulently initiated publication of foreclosure on April 9, 2010 (and repeated publication through July 2, 2010) without having a valid assignment because the Assignment was not recorded until July 1, 2010. The Plaintiff alleges that the Defendants again published flawed foreclosure notices from May 13, 2011 through June 3, 2011, and from August 12, 2011 through September 2, 2011. The Plaintiff contends these notices were flawed and failed to comply with O.C.G.A. § 44-14-162.2 governing notices of foreclosure because they listed the Property as located in "Atlanta, GA 30349" and not College Park, GA 30349.
On July 1, 2010, the Transfer and Assignment of Deed was filed with the Clerk of the Superior Court of Fulton County. MERS later issued a Deed Under Power to HSBC Bank USA, N.A. as Trustee for Nomura Home Equity Loan, Inc., Asset-Backed Certificates, Series 2005-FM1 on October 11, 2011. This Transfer and Assignment was recorded on October 27, 2011. The Plaintiff contends this reference to Nomura is in error and is another reason for the invalidity of the foreclosure. The Plaintiff states that the Assignment conflicts with the terms of the Pooling and Servicing Agreement for the Real Estate Investment Conduit which state that the trust had a closing date of August 30, 2005. The Plaintiff states that the Transfer had to be from Nomura Home Equity Loan, Inc. and not MERS.
In Count One of his complaint, the Plaintiff seeks a declaratory judgment that he is the sole owner of the Property and the foreclosure sale that occurred on September 6, 2011, should be declared null and void. In Count Two, the Plaintiff seeks to quiet title on the Property as the fee simple owner. The Plaintiff asserts a claim for wrongful foreclosure in Count Three contending that the Defendants (a) failed to transfer and assign the Security Deed prior to publication of foreclosure, (b) listed the Property in the wrong municipality, (c) failed to validly record transfers and assignments for 5 years and (d) "other inaccuracies." The Plaintiff contends these actions caused him damages in the "inability of Plaintiff to save his home from foreclosure and the chilling of bidding on the property at the foreclosure sale." The Plaintiff also alleges intentional infliction of emotional distress, negligence, attorney's fees and expenses of litigation.
For clarification, the Plaintiff has attached to his complaint as Exhibit D a Transfer and Assignment of Deed to Secure Debt dated March 12, 2010. This Assignment states that MERS acting as nominee for Fremont Investment & Loan as Assignor has transferred to HSBC Bank USA, N.A., as Trustee for the Certificate Holders, Nomura Home Equity Loan, Inc. Asset-Backed Certificates Series 2005-FM1, as Assignee, ...