Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tonea v. Nationstar Mortgage LLC

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

January 31, 2017

MIRCEA F. TONEA, Plaintiff,
v.
NATIONSTAR MORTGAGE LLC, Defendant.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR., UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Magistrate Judge John K. Larkins Ill's Final Report and Recommendation [12] ("R&R"), which recommends that Nationstar Mortgage LLC's ("Nationstar" or "Defendant") Motion to Dismiss [3] Plaintiff Mircea Tonea's ("Plaintiff) Complaint be granted. The R&R also recommends that Plaintiffs Motion to Remand [5] be denied.

         I. BACKGROUND[1]

         This is Plaintiff's fourth attempt to delay foreclosure.[2] 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). [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).

         On 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).[4]

         At some point, Plaintiff defaulted on his loan obligations.

         On July 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.[5] 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.

         On August 17, 2016, Defendant removed the Gwinnett County Action to this Court based on diversity of citizenship pursuant to 28 U.S.C. § 1332.

         On August 24, 2016, Defendant moved to dismiss Plaintiffs Complaint for failure to state a claim.

         On August 24, 2016, Plaintiff filed his Motion to Remand [5].

         On 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 denied.

         The parties did not object to the R&R.

         II. DISCUSSION

         A. Legal Standard for Review of a Magistrate ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.