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Walker v. Georgia Bank & Trust of Augusta

United States District Court, S.D. Georgia, Augusta Division

November 3, 2014



J. RANDALL HALL, District Judge.

This matter is before the Court on Defendants Carrington Mortgage Services, LLC ("Carrington"), Government National Mortgage Association as Trustee for Securitized Trust Ginnie Mae Remic 2006-065, Ginnie Mae, and Mortgage Electronic Registration Systems, Inc.'s ("MERS") (collectively, "Defendants") Motion to Dismiss Plaintiff Samuel Walker's ("Plaintiff") Complaint.[1] (Doc. 5.) Also before the Court is Plaintiff's Motion for Default Judgment as to Georgia Bank & Trust. (Doc. 9.) Plaintiff charges Defendants with a litany of claims arising from his ownership of 3754 Bans bury Place, Hephzibah, GA 30815, including wrongful foreclosure, fraud, intentional infliction of emotional distress, and slander of title, as well as violations of the Truth in Lending Act ("TILA"), Home Ownership and Equity Protection Act ("HOEPA"), and Real Estate Settlement Procedures Act ("RESPA"). The majority of Plaintiff's allegations appear to be grounded in the theory that Defendants "unlawfully" securitized his home loan and improperly split the promissory note from the security deed. Defendants respond that no foreclosure has occurred, and on account of severe pleading deficiencies, Plaintiff fails to state any claim upon which relief may be granted. For the reasons set forth below, the Court GRANTS Defendants' Motions to Dismiss (Doc. 5, 11) and DENIES AS MOOT Plaintiff's Motion for Default Judgment as to Georgia Bank & Trust. (Doc. 9.)


On or about September 28, 2006, Plaintiff obtained a mortgage loan for $198, 000.00 ("the Loan") from Georgia Bank & Trust, secured by the property located at 3754 Bansbury Place, Hephzibah, Georgia 30815 ("the Property"), and evidenced by a Promissory Note ("the Note") executed in favor of Georgia Bank & Trust and its successors and assigns, promising to repay the Loan amount. (Doc. 1, Ex. A ("Compl."), ¶ 29; Doc. 5, Ex. A ("Deed"), at 1-2.)[2] Plaintiff also signed a Security Deed ("the Deed") in favor of MERS, as nominee for Georgia Bank & Trust and its successors and assigns, granting MERS a security interest in the Property to secure Plaintiff's indebtedness under the Note. (Deed at 2-3.) The Deed granted MERS - as nominee for Georgia Bank & Trust and its successors and assigns - and MERS' successors and assigns, power of sale. (Id.) The Government National Mortgage Association, as Trustee for Securitized Trust Ginnie Mae REMIC 2006-065 ("the Trust"), is the current beneficiary under the Deed of Trust. (Compl. ¶ 30; Defs.' Br., Doc. 5, at 2.) Carrington became the servicer of the mortgage on December 3, 2013. (Pl. Br., Ex. G.) And while Plaintiff claims that Chase became the servicer in July 2014, the record indicates that Chase acquired the loan on July 1, 2014, but never replaced Carrington as the servicer. (Pl. Br. at 6 & Ex. F.) The principal balance on Plaintiff's mortgage is approximately $175, 273.22. (Doc. 8, Ex. E.)

Plaintiff, proceeding pro se, filed a complaint against Defendants in the Superior Court of Richmond County, Georgia, on May 19, 2014, asserting various claims under federal and state law. After service of the complaint in the Richmond County case, Defendants removed the action to this Court on July 16, 2014. (Doc. 1.) Defendants now file a motion to dismiss on the grounds that Plaintiff has to state an actionable claim for relief and has failed to meet the requisite pleading standards of Federal Rules of Civil Procedure 8 and 9(b).


In considering a motion to dismiss under Rule 12(b)(6), the court tests the legal sufficiency of the complaint, not whether the plaintiff will ultimately prevail on the merits. Scheuer v. Rhodes , 416 U.S. 232, 236 (1974). The court must accept as true all facts alleged in the complaint and construe all reasonable inferences in the light most favorable to the plaintiff. See Hoffman-Pugh v. Ramsey , 312 F.3d 1222, 1225 (11th Cir. 2002). The court, however, need not accept the complaint's legal conclusions as true, only its well-pled facts. Ashcroft v. Iqbal , 556 U.S. 662, 678-79 (2009).

A complaint also must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. at 678 (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). The plaintiff is required to plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.

Additionally, when plaintiffs act pro se, the pleadings are "held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed." Tannenbaum v. United States , 148 F.3d 1262, 1263 (11th Cir. 1998). "This leniency, however, does not require or allow courts to rewrite an otherwise deficient pleading in order to sustain an action." Thomas v. Pentagon Fed. Credit Union , 393 F.App'x 635, 637 (11th Cir. 2010). Indeed, pro se claimants have "no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets." Patterson v. Aiken , 841 F.2d 386, 387 (11th Cir. 1988) (internal quotation marks omitted).


Plaintiff's Complaint fails to satisfy the pleading standards to a degree the Court cannot reconcile. First, Plaintiff provides a 32-page, 152-paragraph laundry list of events, many of which are irrelevant to Plaintiff's asserted claims and appear to be copied or reworked from a "forensic audit" of his loan documents.[3] In instances such as this, the Eleventh Circuit does not require the district court, or the defendants, to "sift through the facts presented and decide for [itself] which were material to the particular cause of action asserted." Strategic Income Fund, LLC v. Spear, Leeds & Kellogg Corp. , 305 F.3d 1293, 1296 (11th Cir. 2002) (citations omitted). Although Plaintiff narrates the facts of this case, he also interjects his opinions and makes vague and conclusory allegations of wrongdoing by Defendants related to the mortgage at issue, the securitization of the mortgage, the assignment of the security deed, and thus asks this Court to find the power of sale in the "Note and Mortgage/Deed of Trust" has no force and effect. (Compl. ¶ 60.) For the most part, Plaintiff fails to specify the actions in which each defendant engaged to support each cause of action. A complaint justifiably may be dismissed on these grounds. See Fullman v. Graddick , 739 F.2d 553, 556-57 (11th Cir. 1984). Simply, Plaintiff's filings are equivalent to a "shotgun" pleading that has been soundly condemned by the Eleventh Circuit Court of Appeals. Thompson v. RelationServe Media, Inc. , 610 F.3d 628, 650 n.22 (11th Cir. 2010).

Moreover, at the outset, the Court observes:

Plaintiff's allegations are remarkably similar to those in numerous other cases that have been filed by plaintiffs (often unrepresented) in an effort to delay, prevent or even reverse foreclosures and dispossessory actions. Such lawsuits - wherein the plaintiffs often make rambling, incomprehensible and/or conclusory allegations about mortgage industry practices such as the securitization of mortgages, and the MERS assignment and registration system, allege that the promissory note and the security deed have been improperly "split" or separated, and demand to see the promissory note - have become commonplace.

Jorgensen v. Fed. Home Loan Mortg. Corp., No. 2:12-CV-00236-RWS, 2013 WL 5200598, at *3 (N.D.Ga. Sept. 13, 2013) (listing cases). In this regard, even taking Plaintiff's pro se status into account, the allegations before the Court facially appear to be frivolous. Plaintiff merely echoes the unsound theories described above, namely that (1) Defendants have "unlawfully sold, assigned, and/or transferred.. [the] Promissory Note and Mortgage/Deed of Trust related to the Property, and, thus, do not have lawful ownership or a security interest in Plaintiff's Home" (Compl. ¶ 14); (2) the securitization of his home loan was unlawful (Id. ¶¶ 30-37, 44); and (3) the "assignment of [the Deed] without proper transfer of the obligation that secures it" renders the transaction void (Id. ¶ 43). More comprehensibly, Plaintiff alleges that Georgia Bank & Trust sold him a deceptive product, unjustly qualified him ...

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