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Miles v. Nationstar Mortgage, LLC

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

July 12, 2017

LUZ MILES, Plaintiff,
v.
NATIONSTAR MORTGAGE, LLC, and MCCALLA RAYMER, LLC, Defendants.

          OPINION AND ORDER

          WILLIAM S. DUFFEY JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on McCalla Raymer Pierce, LLC, formerly known as McCalla Raymer, LLC's (“McCalla Raymer”) Motion to Dismiss [5] Plaintiff Luz Miles's (“Plaintiff”) Complaint [1.1].

         I. BACKGROUND

         On June 5, 2009, Plaintiff obtained a loan in the amount of $164, 957.00 from Primary Capital Advisors (“Primary Capital”). (Compl. ¶ 2). Repayment of the loan was secured by a deed (“Security Deed”) to real property located at 3009 Octavia Circle, Marietta, Georgia (the “Property”). (Id. ¶¶ 1-2). Plaintiff executed the Security Deed in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for Primary Capital and Primary Capital's successors and assigns. (Id. ¶ 2).

         On September 2, 2016, the Security Deed was assigned to Nationstar Mortgage LLC (“Nationstar”). (Id. ¶ 3).

         At some point, it appears that Plaintiff defaulted on her loan obligations. Plaintiff applied for a loan modification “which was not completed because of alleged missing documents which [Nationstar] admitted they already had in their possession.” (Id. ¶ 15).

         On October 26, 2016, Plaintiff “called to check on the status of her modification” and “learned about Defendant's [sic] intent to foreclose non-judicially on November 1, 2016.” (Id. ¶ 5).

         On October 28, 2016, Plaintiff, proceeding pro se, filed her Complaint in the Superior Court of Cobb County, Georgia, asserting claims for wrongful foreclosure (Count One) and injunctive relief (Count Two) against McCalla Raymer and Nationstar. Plaintiff claims that Nationstar, “working in concert with Defendant McCalla Raymer . . . fraudulently and intentionally hatched a scheme to make it look as though Plaintiff did not complete a loan modification package.” (Compl. at 1). Plaintiff claims that foreclosure is wrongful because, under 12 C.F.R. § 1024.41(g), a loan servicer cannot conduct a foreclosure sale while a loan modification application is pending. Plaintiff seeks “an appropriate award of actual, nominal, resultant and punitive damages for Dual Tracking violations, ” and to enjoin foreclosure. (Compl. at 12).

         On November 23, 2016, Nationstar removed the Cobb County Action to this Court based on federal question jurisdiction, because Plaintiff's wrongful foreclosure claim is based on alleged violations of federal law. (Notice of Removal [1]).

         On November 30, 2016, McCalla Raymer and Nationstar moved to dismiss Plaintiff's Complaint for failure to state a claim. ([3], [5]).

         On May 12, 2017, Plaintiff voluntarily dismissed, with prejudice, her claims against Nationstar, and Nationstar's Motion to Dismiss is thus moot. (See Stipulation of Dismissal [11]).

         Plaintiff did not respond to McCalla Raymer's Motion to Dismiss, and under Local Rule 7.1B, the Court deems McCalla Raymer's Motion to Dismiss unopposed. See L.R. 7.1B, NDGa.

         II. DISCUSSION

         A. Le ...


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