United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
THOMAS W. THRASH, Jr., District Judge.
This is a wrongful foreclosure action. It is before the Court on the Plaintiffs' Motion to Remand [Doc. 9] and the Defendants Federal National Mortgage Association and Seterus, Inc.'s Motion to Dismiss [Doc. 3]. For the reasons set forth below, the Plaintiffs' Motion to Remand [Doc. 9] is DENIED and the Defendants' Motion to Dismiss [Doc. 3] is GRANTED.
On April 27, 2000, the Plaintiff Paul Schuler purchased property (the "Property") located at 101 Farm Overlook Drive in Henry County, Georgia. In connection therewith, the Plaintiff signed a note and a security deed in favor of Perimeter Mortgage Funding. On September 26, 2003, the Plaintiff refinanced the Property with First Horizon Home Loan Corporation. As part of the transaction, the Plaintiff signed a security deed in favor of First Horizon.
On July 22, 2010, the Defendant First Horizon Home Loans ("FHHL") - successor-in-interestto First Horizon Home Loan Corporation - assigned the First Horizon security deed to Mortgage Electronic Registration Systems ("MERS") as nominee for FHHL. On December 21, 2011, MERS assigned the First Horizon security deed to the Defendant Federal National Mortgage Association ("Fannie Mae").
On June 19, 2013, Fannie Mae sent the Plaintiff Paul Schuler a Notice of Foreclosure. In particular, the Notice indicated that the Plaintiff had defaulted "in the payment of the indebtedness." On August 6, 2013, Fannie Mae sold the Property to itself in a foreclosure sale. The Plaintiffs brought suit in state court against multiple parties - including Fannie Mae, Seterus, Inc. (the loan servicer), and FHHL - for wrongful foreclosure. In particular, the Plaintiffs claim that (1) Fannie Mae did not have a right to foreclose because it did not legally hold the security deed, and (2) the notice of foreclosure the Plaintiff Paul Schuler received did not meet Georgia's statutory requirements. Fannie Mae and the Defendant Seterus, Inc. (collectively, the "Defendants") removed the case to this Court, and now move to dismiss.
II. Legal Standard
A plaintiff may survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6) if the factual allegations in the Complaint give rise to a plausible claim for relief. For a claim to be plausible, the supporting factual matter must establish more than a mere possibility that the plaintiff is entitled to relief. In determining whether a plaintiff has met this burden, the Court must assume all of the factual allegations in the Complaint to be true. The Court, however, need not accept as true any legal conclusions found in the Complaint.
The "analysis of a 12(b)(6) motion is limited primarily to the face of the complaint and attachments thereto." However, "where the plaintiff refers to certain documents in the complaint and those documents are central to the plaintiff's claim, then the Court may consider the documents part of the pleadings for purposes of Rule 12(b)(6) dismissal, and the defendant's attaching such documents to the motion to dismiss will not require conversion of the motion into a motion for summary judgment."
A. Motion to Remand
As an initial matter, the Plaintiffs argue that the Defendants Fannie Mae and Seterus improperly removed this action because they did not receive consent from the third defendant, FHHL. Generally, "all defendants who have been properly joined and served must join in or consent to the removal of the action." However, "nominal... parties, being neither necessary nor indispensable, are not required to join in the petition for removal." A "party is nominal when, in the absence of the defendant, the Court can enter a final judgment consistent with equity and good conscience which would not be in any way unfair or inequitable to plaintiff."
Here, the Defendants argue that FHHL is a nominal party. The Court agrees. There is no allegation that FHHL was involved in the foreclosure itself, which serves as the basis for the Plaintiffs' claims. There is no allegation that FHHL is claiming any interest in the Property, and the Plaintiffs are not seeking any relief from FHHL. In response, the Plaintiffs assert that if the Defendants' argument were accepted, "[a]ny defendant unilaterally [labeled] nominal' could routinely be ignored for purposes of consent to removal, thus allowing the newly-created exception to swallow the rule." This is obviously incorrect. The Defendants are not suggesting that FHHL is a nominal party simply because the Defendants "unilaterally" declared it to be one. Instead, they have argued, correctly, that ...