United States District Court, M.D. Georgia, Athens Division
SANDRA GRAY, individually and as executrix of the estate of Nathan Gray, Plaintiff,
PEGGY L. BROWN, et al., Defendants.
D. LAND, CHIEF U.S. DISTRICT COURT JUDGE
Presently pending before the Court is the motion to dismiss
of Defendants Ocwen Loan Servicing, LLC
(“Ocwen”), The Bank of New York Mellon f/k/a The
Bank of New York, Successor in Interest to JPMorgan Chase
Bank, as Trustee for Novastar Mortgage Funding Trust, Series
2005-2, Novastar Home Equity LOA Asset-Backed Certificates,
Series 2005-2 (“Mellon”), JPMorgan Chase Bank, as
Trustee for Novastar Mortgage Funding Trust, Series 2005-2,
Novastar Home Equity LOA Asset-Backed Certificates, Series
2005-2 (“Chase”), and Mortgage Electronic
Registration Systems, Inc. (“MERS”). These
Defendants contend that Plaintiff's First Amended
Complaint fails to state a claim against them. As discussed
below, their motion to dismiss (ECF No. 24) is granted in
part and denied in part. These Defendants also seek to strike
Plaintiff's response to their motion to dismiss because
Plaintiff filed it a week late without leave to do so. But
they also argue that the Court should consider the content of
the response and deem certain claims to be abandoned. The
motion to strike (ECF No. 34) is denied.
TO DISMISS STANDARD
survive a motion to dismiss” under Federal Rule of
Civil Procedure 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). The complaint must include sufficient factual
allegations “to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
In other words, the factual allegations must “raise a
reasonable expectation that discovery will reveal evidence
of” the plaintiff's claims. Id. at 556.
But “Rule 12(b)(6) does not permit dismissal of a
well-pleaded complaint simply because ‘it strikes a
savvy judge that actual proof of those facts is
improbable.'” Watts v. Fla. Int'l
Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting
Twombly, 550 U.S. at 556).
alleges the following facts in support of her claims. The
Court must accept these allegations as true for purposes of
the pending motion.
1987, Plaintiff and her husband Nathan Gray purchased a house
located at 1540 Old Athens Highway, Monroe, Georgia 30656
(“Property”). They financed the purchase with a
loan from Countrywide Funding Corporation. The next year,
Nathan transferred all of his interest in the Property to
Plaintiff. The year after that, Plaintiff executed a new
security deed with Countrywide, and she was listed as the
sole borrower and signatory for the $69, 505.72 loan. Nathan
made the monthly Countrywide loan payment from his individual
2005, Nathan applied for a refinance loan from Emmco, LLC.
The loan application listed both Plaintiff and Nathan as
joint titleholders of the Property. It did not list Plaintiff
as a borrower or co-borrower. Plaintiff asserts that she did
not know about this loan application. Emmco knew that
Plaintiff was the sole owner of the Property, but it accepted
the loan application and originated a loan for $112, 500.00
to be secured by the Property “despite knowing that
Nathan Gray had no legal interest in the Property.” 1st
Am. Compl. ¶ 24, ECF No. 20. At the closing of the loan
on May 27, 2005, Nathan executed a promissory note to Emmco.
He also signed a finalized loan application similar to the
one he initially submitted to Emmco. Plaintiff was not
present at the closing and did not sign the promissory note.
Nathan also executed a security deed, which listed him and
Plaintiff as the borrowers, Emmco as the lender, and MERS as
the grantee “as a nominee for Lender and Lender's
successors and assigns.” 1st Am. Compl. Ex. 6, Security
Deed 1, ECF No. 20-6. The security deed contains a signature
for “Sandra Gray, ” but Plaintiff asserts that it
is not her authentic signature and that she did not sign any
closing documents, authorize the loan, or attend the closing.
Peggy L. Brown was the closing attorney for the 2005
refinance loan. Defendant Ellen McDorman and Brown both
notarized the documents that contained Plaintiff's
signature, including the security deed and an acknowledgement
and waiver of borrower's rights. According to Plaintiff,
her signature is forged, and neither Brown nor McDorman
verified the identity of the person who signed the
documents. Plaintiff alleges that Brown knew that
Nathan did not hold title to the Property and was not
authorized to sign the closing documents on behalf of
Plaintiff. She further alleges that Emmco and Brown knew or
should have known (by conducting a title search) that
Plaintiff was the sole titleholder of the property but closed
the refinance loan to Nathan anyway. Finally, Plaintiff
contends that there were irregularities with the closing
documents- including two documents purporting to be the
original security deeds and two documents purporting to be
the original acknowledgment and waiver of borrower's
rights. Brown recorded the security deed on behalf of Emmco.
Plaintiff believes that Emmco assigned the loan to Mellon
through MERS. At some point, Ocwen became the loan servicer
for the 2005 refinance loan.
alleges that she did not know about or receive any benefit
from the 2005 refinance loan, although she does acknowledge
that part of the loan proceeds were used to pay off the
original Countrywide loan. Nathan paid the monthly payments
from his individual checking account, and Plaintiff did not
have access to that account. Nathan also received the
mortgage statements at his private post office box, so
Plaintiff did not see them. Nathan died in February 2016, and
Plaintiff was named executor of his estate on March 1, 2016.
At that time, she discovered the 2005 refinance loan.
March 2, 2016, Plaintiff wrote a letter to Ocwen asking for
proof of its right to service a loan associated with the
Property. In response, on March 10, 2016, Ocwen sent
Plaintiff copies of the security deed, a commitment for title
insurance, and an acknowledgment and waiver of borrower's
rights that contained only Nathan's signature. On March
30, 2016, Ocwen sent Plaintiff copies of an allonge listing
Nathan as the borrower for the loan, the note executed by
Nathan, two Forms 4506-T (Request for Tax Return) signed by
Nathan, and the loan applications listing Nathan as the
borrower for the loan. Ocwen also informed Plaintiff that
Mellon “currently owns the loan and holds the
Note.” 1st Am. Compl. Ex. 7, Letter from Ocwen to S.
Gray (Mar. 29, 2016), ECF No. 20-7 at 2. On April 11, 2016,
Ocwen sent Plaintiff additional copies of these documents.
resumed paying the mortgage in April 2016, although she
asserts that she did so under protest. Ocwen accepted her
payments. Later in 2016, Plaintiff retained a lawyer to help
her investigate the loan issue and notified Ocwen of a
potential lawsuit. At that point, Ocwen stopped communicating
directly with Plaintiff and began sending her mortgage
statements and other documents to her attorney. Plaintiff and
her attorney have both asked that these documents be sent
directly to Plaintiff instead. In early 2017, Plaintiff sent
Ocwen an affidavit of identity theft. In response, Ocwen
stated that it compared the signature on the affidavit to the
account documents and determined that they matched; Ocwen
suggested that if Plaintiff wished to pursue her claim of
identity theft, she should file a court case.
2017, Ocwen returned a payment made by Plaintiff and later
sent her a default notice. Plaintiff then demanded that Ocwen
return all the money she had paid on the refinance loan since
April 2016. Later that summer, Plaintiff filed this action.
asserts the following claims:
1. Count I: Negligence against Emmco, Brown, McDorman, Chase,
Mellon, and Ocwen. 1st Am. Compl. ¶¶ 61-72.
2. Count II: Slander of Title against Emmco, Chase, and
Mellon. Id. ¶¶ 73-81.
3. Count III: Declaratory Relief against Emmco, Chase,
Mellon, and Ocwen. Id. ...