United States District Court, N.D. Georgia, Atlanta Division
MIRCEA F. TONEA, Plaintiff,
NATIONSTAR MORTGAGE LLC, Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR., UNITED STATES DISTRICT JUDGE
matter is before the Court on Magistrate Judge John K.
Larkins Ill's Final Report and Recommendation 
("R&R"), which recommends that Nationstar Mortgage
LLC's ("Nationstar" or "Defendant")
Motion to Dismiss  Plaintiff Mircea Tonea's
("Plaintiff) Complaint be granted. The R&R also
recommends that Plaintiffs Motion to Remand  be denied.
Plaintiff's fourth attempt to delay
foreclosure. In 2004, Plaintiff obtained a loan in
the amount of $189, 000 from Home Funds Direct ("Home
Funds"). (Security Deed [3.2] at 2-3).  Repayment of the loan was
secured by a deed ("Security Deed") to real
property located at 1845 Oak Wind Lane, Buford, Georgia 30519
(the "Property"). (Id. at 4). Plaintiff
executed the Security Deed in favor of Mortgage Electronic
Registration Systems, Inc. ("MERS"), as nominee for
Home Funds and Home Funds' successors and assigns.
(Id.). Under the terms of the Security Deed,
Plaintiff "grant[ed] and convey[ed] to MERS (solely as
nominee for [Home Funds] and [Home Funds'] successors and
assigns) and the successors and assigns of MERS, with power
of sale, the [Property]." (Security Deed at 4).
April 3, 2010, MERS assigned its rights under the Security
Deed, including the power of sale, to "The Bank of New
York Mellon FKA The Bank of New York, as successor to JP
Morgan Chase Bank, N.A., as [T]rustee for the holders of the
ABFC 2005-HE1 trust" ("BONYM") (Assignment
[3.2] at 18).
point, Plaintiff defaulted on his loan obligations.
12, 2016, Plaintiff, proceeding pro se, filed his
Complaint in the Superior Court of Gwinnett County, Georgia.
Plaintiff asserts state-law claims for fraud and
misrepresentation (Count I) and wrongful foreclosure (Count
II) against Nationstar, the holder of Plaintiff's
security deed. The crux of Plaintiff's claim is
that Defendant lacks standing to foreclose on the Property
based on the perceived defects in the Assignment and the
transfer of his mortgage. Plaintiff seeks declaratory and
injunctive relief and compensatory damages.
August 17, 2016, Defendant removed the Gwinnett County Action
to this Court based on diversity of citizenship pursuant to
28 U.S.C. § 1332.
August 24, 2016, Defendant moved to dismiss Plaintiffs
Complaint for failure to state a claim.
August 24, 2016, Plaintiff filed his Motion to Remand .
January 11, 2017, the Magistrate Judge issued his R&R. Having
found that Plaintiff and Defendant are citizens of different
states, and that the amount in controversy exceeds $75, 000,
the Magistrate Judge concluded that the Court has subject
matter jurisdiction based on diversity of citizenship, and
recommended that Plaintiffs Motion to Remand be denied. The
Magistrate Judge also recommended that Defendant's Motion
to Dismiss be granted and that Nationstar's request for
an order barring Plaintiff from filing future actions be
parties did not object to the R&R.
Legal Standard for Review of a Magistrate ...