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Cummings v. Nationstar Mortgage LLC

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

March 2, 2017

ANTHONY D. CUMMINGS, Plaintiff,
v.
NATIONSTAR MORTGAGE LLC, Defendant.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Nationstar Mortgage LLC's (“Defendant” or “Nationstar”) Motion to Dismiss [3] Plaintiff Anthony D. Cummings' (“Plaintiff”) Complaint [1.1]. The Court also considers Plaintiff's “Emergency Motion for Entry to Reconsider Order to Remand Case Back to State Court, Motion to Vacate Remand Order with Supplemental of [sic] Jurisdiction” (“Motion to Remand”) [11], which the Court construes as his Motion to Remand.[1]

         I. BACKGROUND

         On October 31, 2006, Plaintiff obtained a loan in the amount of $189, 370 from Bank of America, N.A. (“BANA”). (Security Deed [3.2] at 2, 4).[2]Repayment of the loan was secured by a deed (“Security Deed”) to real property located at 3159 Meadow Point Drive, Snellville, Georgia (the “Property”). (Id. at 5). Under the terms of the Security Deed, Plaintiff “grant[ed] and convey[ed] to [BANA] and [BANA's] successors and assigns, with power of sale, the [Property].” (Id.).

         On May 14, 2016, BANA assigned its rights under the Security Deed to Nationstar. (Assignment [3.3]).

         At some point, it appears that Plaintiff defaulted on his loan obligations and Nationstar scheduled a foreclosure sale of the Property.

         On January 25, 2016, Plaintiff filed his Complaint in the Superior Court of Gwinnett County, Georgia.[3] The crux of Plaintiff's claims is that Defendant lacks standing to foreclose on the Property based on perceived defects in the Assignment and the transfer of his mortgage. Plaintiff seeks injunctive relief, compensatory and punitive damages, attorney's fees and litigation costs.

         On June 15, 2016, Nationstar removed the Gwinnett County Action to this Court based on diversity of citizenship pursuant to 28 U.S.C. § 1332.

         On June 22, 2016, Nationstar moved to dismiss Plaintiff's Complaint for failure to state a claim for relief.

         On August 3, 2016, Plaintiff filed his “Verified Motion, Improper Foreclosure, Injunctive Relief, Punitive Damages, [sic] Remand Back to Superior Court.” In it, Plaintiff asserts that Nationstar lacks standing to foreclose on the Property because it is an “improper secured creditor” and has not produced the original promissory note. (See [6] at 2).

         On September 29, 2016, Plaintiff filed his “Motion” [9] for Injunctive Relief. Plaintiff also appears to assert a claim for fraud based on his assertion that Nationstar “has never proven entitlement to the plaintiff property [sic], ” which, he asserts, amounts to “a clear pattern of intentional fraudulent conduct.” (See [11] at 4).

         On December 27, 2016, Plaintiff moved to remand this case to state court. Plaintiff does not assert any specific reasons to explain why remand of this action is appropriate. Plaintiff does not assert that the Court lacks subject-matter jurisdiction over this action and instead seems to agree that the “District Court of the United States has original, concurrent, and supplementary [sic] jurisdiction over this cause of action.” (See [11] at 2).

         The Court first considers whether it has subject-matter jurisdiction over this action.

         II. DISCUSSION

         A. Plaintiff's Motion to Remand

         Defendant removed the Gwinnett County Action to this Court based on diversity of citizenship. The Court has diversity jurisdiction over an action in which the amount in controversy exceeds $75, 000, and is ...


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