United States District Court, N.D. Georgia, Atlanta Division
DAVID H. BAKER, Plaintiff,
WELLS FARGO BANK, N.A., Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Defendant Wells Fargo Bank, N.A.'s ("Defendant" or "Wells Fargo") Motion to Dismiss  Plaintiff David H. Baker's ("Plaintiff" or "Baker") Complaint [1.1 at 2-18].
On May 31, 2002, Plaintiff obtained a loan in the amount of $163, 050 from Pine State Mortgage Corporation ("Pine State") and executed a promissory note ("Note") in favor of Pine State. (Compl. ¶¶ 6-7 & Ex. A). The Note provides, in relevant part:
6. BORROWER'S FAILURE TO PAY
If Borrower defaults by failing to pay in full any monthly payments, then Lender may, except as limited by regulations of the Secretary [of Housing and Urban Development ("HUD")] in the case of payment defaults, require immediate payment in full of the principal balance remaining due and all accrued interest.... In many circumstances regulations issued by the Secretary will limit Lender's rights to require immediate payment in full in the case of payment default. This Note does not authorize acceleration when not permitted by HUD regulations.
(Note at 2).
Repayment of the loan was also secured by a deed ("Security Deed") to real property located at 123 Ashton Brook Drive, McDonough, Georgia (the "Property"). (Compl. ¶ 7 & Ex. B). Plaintiff executed the Security Deed in favor of Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for Pine State and Pine State's successors and assigns. (Id.). Under the terms of the Security Deed, Plaintiff "grant[ed] and convey[ed] to MERS (solely as nominee for [Pine State] and [Pine State's] successors and assigns), and the successors and assigns of MERS, with power of sale, the [Property]." (Security Deed at 2). The Security Deed also provides, in pertinent part:
9. Grounds for Acceleration of Debt.
(d) Regulations of HUD Secretary. In many circumstances regulations issued by the Secretary will limit Lender's rights, in the case of payment defaults, to require immediate payment in full and foreclose if not paid. This Security [Deed] does not authorize acceleration or foreclosure if not permitted by regulations of the Secretary.
(Security Deed at 5).
In 2010, Plaintiff "experienced difficulty meeting her [sic] payments on the loan. Plaintiff requested mortgage relief assistance from Wells ...