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Hesed-El v. Aldridge Pite, LLP

United States District Court, S.D. Georgia, Augusta Division

March 18, 2019

BRO T. HESED-EL, Plaintiff,
v.
ALDRIDGE PITE, LLP; WELLS FARGO BANK, N.A.; and FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendants.

          ORDER

          J. RANDAL HALL, CHIEF JUDGE UNITED STATES DISTRICT COURT.

         Before the Court is Defendant Aldridge Pite, LLP's ("Defendant Aldridge") motion to dismiss (Doc. 13) and Defendants Wells Fargo Bank, N.A. ("Defendant Wells Fargo") and Federal National Mortgage Association's ("Defendant Fannie Mae") joint motion to dismiss (Doc. 16) . In addition, Plaintiff Bro T. Hesed-El ("Plaintiff") has filed the following motions: a motion for leave to amend complaint, to add parties, and for a restraining order (Doc. 21); a motion to address Defendants7 defamatory-language (Doc. 32); a second motion for leave to amend complaint (Doc. 34); and a motion for mandatory judicial notice (Doc. 44). For the following reasons, Defendants' motions to dismiss (Docs. 13, 16) are GRANTED, and Plaintiff's motions (Docs. 21, 32, 34, 44) are DENIED AS MOOT.

         I. BACKGROUND

         Proceeding pro se, Plaintiff brings this case as trustee[1] of the Taqi El Agabey Trust[2] (the "Trust") on behalf of the Trust's beneficiaries.[3] The Trust appears to consist of property at 2818 Meadowbrook Drive, Augusta, Georgia 3 0906 (the "Meadowbrook Property") and 3 620 Goldfinch Drive, Augusta, Georgia 30906 (the "Goldfinch Property") (collectively, the "Properties"). (Compl., at 6.) Plaintiff's claims stem from the owners of the Properties defaulting on their loans.

         Individuals other than Plaintiff[4] secured loans on the Properties but later defaulted. Defendant Aldridge served as foreclosure counsel for the Goldfinch Property and sent communications and notices of the foreclosure sale to Stephen Lee. (Def. Aldridge Mot. to Dismiss Br., Doc. 13-1, at 5-6.) At non-judicial foreclosure sales, Defendant Wells Fargo took title to the Properties. (Goldfinch Deed Under Power, Doc. 13-4; Meadowbrook Deed Under Power, Doc. 13-9.) After the Meadowbrook Sale, Defendant Fannie Mae filed a dispossessory action: Federal National Mortgage Association v. Deoraj, No. 904689, Magistrate Court of Richmond County, Georgia. (See State Magistrate J., Doc. 1-1, at 13.) Because defendants in that action[5] failed to timely appear, the court entered a Judgment and Final Writ of Possession for Defendant Fannie Mae.[6] (State Magistrate J., at 13.)

         On January 3, 2019, Plaintiff initiated this suit by filing a form document titled "Complaint for the Conversion of Property" claiming the following: (1) Defendants violated the Fair Debt Collection Practices Act; (2) the State Magistrate Judgment is void; and (3) a temporary restraining order should be ordered halting all activity pertaining to the Properties. (Compl., at 7.) In his Second Amended Complaint, Plaintiff attempts to add parties and a fraud claim.[7] (Second Am. Compl., at 7-8, 28-29.) Defendants argue Plaintiff's complaint should be dismissed under Federal Rules of Civil Procedure 8, 12(b)(1), and 12(b)(6). (Def. Aldridge Mot. to Dismiss, Doc. 13, at 1; Defs. Wells Fargo & Fannie Mae Mot. to Dismiss, Doc. 16, at 1.)

         II. DISCUSSION

         Although individuals are free to represent their own interests without counsel under 28 U.S.C. § 1654, nonlawyers may not represent other individuals or entities. Michel v. United States, 519 F.3d 1267, 1271 (11th Cir. 2008) ("A party cannot be represented by a nonlawyer, so a pleading signed by a nonlawyer on behalf of another is null."). When a nonlawyer trustee brings a claim on behalf of a trust or its beneficiaries, he is not representing his own interests; thus, the trustee "has no authority to appear as an attorney." In re Hamblen, 360 B.R. 362, 368 (Bankr. N.D.Ga. 2006); see Mitchelle Art 89 Tr. v. Astor Alt, LLC, No. 1:15-CV-00463-WSD, 2015 WL 4394887, at *3-4 (N.D.Ga. July 15, 2015) (Duffey, J., adopting Baverman, M.J.) (finding trustee could not proceed pro se because complaint failed to (1) identify beneficiaries and (2) show that trustee was "the beneficial owner of the claims asserted"); cf. Devine v. Indian River Cty. Sch. Bd., 121 F.3d 576, 581-82 (11th Cir. 1997) (Court stated, w [P] arents who are not attorneys may not bring a pro se action on their child's behalf . . . ."), overruled, in part, on other grounds, Winkelman ex rel. v. Parma City Sch. Dist., 550 U.S. 516 (2007); Franklin v. Garden State Life Ins., 462 Fed.Appx. 928, 930 (11th Cir. 2012) (per curium) (affirming dismissal because nonlawyer plaintiff may not proceed pro se as administrator of estate). The Court notes that, under Federal Rule of Civil Procedure 17(a)(1), a trustee can file suit in his own name. The trustee, however, is still only a fiduciary to the trust and, thus, cannot proceed pro se on its behalf. See Devine, 121 F.3d at 581 (Rule 17 "permits authorized representatives, including parents, to sue on behalf of minors, but does not confer any right upon such representatives to serve as legal counsel.").

         Plaintiff does not assert he is bringing this suit in his individual capacity, [8] but only that he brings this suit as trustee on behalf of unnamed beneficiaries.[9] (Compl., at 1, 4, 6.) Thus, Plaintiff, proceeding pro se, cannot bring this action, and his claims must be dismissed.[10] See Franklin, 462 Fed.Appx. at 930 ("Because [plaintiff], as a non-lawyer, was not permitted to proceed pro se on behalf of [the] estate, she can prove no set of facts entitling her to relief. Thus, the district court properly dismissed her complaint pursuant to Rule 12(b)(6)."); Khan El v. CitiMortgage, Inc., No. 1:16-CV-4128-ELR-JFK, 2017 WL 2909417, at *2-3 (N.D.Ga. Feb. 6, 2017) (citing Franklin, court dismissed without prejudice), adopted by, 2017 WL 3000046 (N.D.Ga. Mar. 2, 2017); Mitchelle Art 89 Tr., 2015 WL 4394887, at *5-6 (after finding trustee-plaintiff could not appear without counsel, court dismissed complaint without prejudice and denied as moot trustee's pending motions).

         III. CONCLUSION

         For the foregoing reasons, the motions to dismiss (Docs. 13, 16) are GRANTED, and Plaintiff's remaining motions (Docs. 21, 32, 34, 44) are DENIED AS MOOT. Consequently, the Court DISMISSES this action WITHOUT PREJUDICE and directs the Clerk to TERMINATE all motions and deadlines and close this case.

         ORDER ENTERED.

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