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Morrison v. Bank of America, N.A.

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

July 31, 2014

JULIANNE SABRINA MORRISON, Plaintiff,
v.
BANK OF AMERICA, N.A., Defendant.

OPINION AND ORDER

WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Plaintiff Julianne Sabrina Morrison's ("Plaintiff") Motion for Reconsideration [17] of the Court's December 16, 2013, Order [15] dismissing this action for failure to state a claim.[1]

I. BACKGROUND

On January 7, 2004, Plaintiff[2] obtained a loan from BANA in the amount of $101, 805. (Compl. ¶ 8; Note [11 at 23-25]). Repayment of the loan was secured by a deed ("Security Deed") to real property located at 4784 Cedar Park Way, Stone Mountain, Georgia (the "Property"). (Id. ¶ 8; Security Deed [1.1 at 13-27]). Plaintiff executed the Security Deed in favor of BANA. (Id.).

On March 15, 2011, BANA assigned its interest in the Security Deed ("Assignment") to BAC Home Loans Serving, LP ("BACHLS"). (Assignment [1.1 at 52]).

On July 1, 2011, BACHLS merged with its parent company, BANA.[3]

At some point, Plaintiff defaulted on her loan obligations. Plaintiff asserts that she "suspended" payments because Defendant "failed to properly identify the person that is the holder in due course of legal title or the ability to enforce the note under O.C.G.A. § 11-3-309." (Compl. ¶ 10).

On August 23, 2011, BANA filed a complaint in the Superior Court of DeKalb County, Georgia, seeking to have declared invalid an affidavit and an "Appointment of Successor Trustee/Notice of Correction" filed by Plaintiff in the DeKalb County, Georgia Property Records. (Pl's Resp. [11] at 2). On June 6, 2012, the DeKalb County Superior Court granted default judgment for BANA and declared that Plaintiff's filings were void and that the Security Deed is valid and enforceable. (Id. at 54-56).

On September 27, 2012, Plaintiff filed a petition for relief under Chapter 7 of the Bankruptcy Code. (Id. at 2). On November 27, 2012, BANA moved for relief from the automatic bankruptcy stay to sell the Property at foreclosure. (Id. at 59-61). Plaintiff did not object to BANA's motion, and on January 2, 2013, the Bankruptcy Court granted BANA's motion for relief from the bankruptcy stay. (Id. at 62-64).

On March 1, 2013, Plaintiff filed her Complaint [1.1 at 1-12] and Motion for TRO [1.1 at 34-44] in the Superior Court of DeKalb County, Georgia. Construing Plaintiff's pro se pleadings liberally and as a whole, Plaintiff appears to assert that foreclosure would be wrongful because Defendant lacks standing to foreclose on the Property, that Defendant violated the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), and Georgia law by failing to validate the debt and provide an accounting of Plaintiff's mortgage, and that Defendant failed "to obtain Secretary of U.S. Department of Housing and Urban Development approval to be designated as Foreclosure Commissioner, " in violation of 12 U.S.C. § 3754. Plaintiff seeks to have the Security Deed and Note declared "fully satisfied, " to enjoin foreclosure of the Property, to compel production of Plaintiff's Note and any assignments, and to require Defendant to validate the alleged debt.

On April 1, 2013, BANA removed the DeKalb County action to this Court based on diversity jurisdiction [1].

On April 8, 2013, BANA moved to dismiss Plaintiff's Complaint for failure to state a claim [7].

On October 11, 2013, Plaintiff moved for entry of default against Defendant for failure to timely file its answer [13].

On December 16, 2013, the Court granted BANA's Motion to Dismiss. The Court found that Plaintiff did not, and could not, state a claim for wrongful foreclosure against BANA, including because Plaintiff acknowledged that she is not current on her obligations. The Court also found that BANA was entitled to foreclose on the Property because: under the terms of the Security Deed, Plaintiff granted to BANA the Property, with the power of sale; BANA assigned its rights under the Security Deed to BACHLS; BACHLS and BANA merged; and, as a result of the merger, BANA acquired "all the property, rights, powers, trusts, duties and obligations" of BANA, including the Security Deed, with the power of sale. To the extent Plaintiff argued that BANA lacked standing to foreclose ...


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