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Shibley v. JPMorgan Chase Bank, N.A.

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

February 11, 2015

BRIAN SHIBLEY, Plaintiff,
v.
JPMORGAN CHASE BANK, N.A., Defendant.

OPINION AND ORDER

WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Defendant JPMorgan Chase Bank, N.A.'s ("Defendant" or "JPMorgan") Motion to Dismiss [3] Plaintiff Brian Shibley's ("Plaintiff" or "Shibley") Complaint [1.2 at 5-12]. Plainitff did not respond to Defendant's Motion.

I. BACKGROUND

On December 20, 2007, Plaintiff obtained a loan in the amount of $1, 224, 000, from Washington Mutual Bank, FA ("WaMu"). (Compl. ¶ 5 & Ex. B). Repayment of the loan was secured by a deed (the "Security Deed") to real property located at 1407 Hearst Drive, Atlanta, Georgia (the "Property"). (Id.). Under the terms of the Security Deed, Plaintiff "grant[ed] and convey[ed] to [WaMu], and [WaMu's] successors and assigns, with the power of sale, the [Property]." (Security Deed at 3).

On September 25, 2008, the Office of Thrift Supervision closed WaMu and appointed the Federal Deposit Insurance Corporation the Receiver of WaMu ("FDIC-R"). Also on September 25, 2008, the FDIC-R sold substantially all of the assets and liabilities of WaMu, including mortgage loans, to JPMorgan pursuant to a Purchase and Assumption Agreement (the "PAA").[1]

On August 29, 2012, the FDIC-R appointed JPMorgan to act as Attorney-in-Fact for the FDIC-R, including to execute, on behalf of the FDIC-R,

all instruments of transfer and conveyance, including but not limited to deeds [and] assignments... as may be necessary or appropriate to evidence the sale or transfer of any asset of [WaMu], including all loans formerly held by [WaMu], pursuant to that certain [PAA] dated as of September 25, 2008 among the... FDIC-R, and [JPMorgan].

(Assignment [3.2] at 4).[2]

On May 8, 2013, JPMorgan, as attorney in fact for the FDIC-R, assigned the Security Deed, with the power of sale, to JPMorgan. (Id. at 1). The Assignment also states: "This Assignment is intended to further memorialize the transfer that occurred by operation of law on September 25, 2008, as authorized by... the Federal Deposit Insurance Act, 12 U.S.C. § 1821(d)(2)(G)(i)(II)." (Id. at 1).

On February 20, 2014, Aldridge Connors, LLP, on behalf of JPMorgan, sent Plaintiff a Notice of Foreclosure Sale ("NFS"). (Compl. ¶ 9 & Ex. D; see also [3.3]).[3] The NFS states that JPMorgan is Plaintiff's loan servicer, that Plaintiff defaulted on his loan obligations, and that JPMorgan will conduct a foreclosure sale of the Property on April 1, 2014. (NFS at 1). The NFS also states that JPMorgan is the entity with the full authority to negotiate, amend or modify Plaintiff's loan, and it provides contact information for JPMorgan. (NFS at 5-6).

On May 6, 2014, Plaintiff, represented by counsel, filed his Complaint in the Superior Court of DeKalb County, Georgia. Plaintiff asserts claims for declaratory judgment (Count I) and quiet title (Count II), based on his assertion that JPMorgan lacks standing to foreclose on the Property.

On June 5, 2014, Defendant removed the DeKalb County Action to this Court on the basis of diversity of citizenship jurisdiction. (Notice of Removal [1]).

On June 6, 2014, Defendant moved to dismiss Plaintiff's Complaint for failure to state a claim. Plaintiff did not respond to Defendant's motion. Pursuant to Local Rule 7.1B, the ...


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