United States District Court, S.D. Georgia, Augusta Division
BRO T. HESED-EL, Plaintiff,
ALDRIDGE PITE, LLP; WELLS FARGO BANK, N.A.; and FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendants.
RANDAL HALL, CHIEF JUDGE UNITED STATES DISTRICT COURT.
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.
pro se, Plaintiff brings this case as
trustee of the Taqi El Agabey Trust (the
"Trust") on behalf of the Trust's
beneficiaries. 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.
other than Plaintiff 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 failed to timely appear, the
court entered a Judgment and Final Writ of Possession for
Defendant Fannie Mae. (State Magistrate J., at 13.)
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. (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,
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.").
does not assert he is bringing this suit in his individual
capacity,  but only that he brings this suit as
trustee on behalf of unnamed beneficiaries. (Compl., at 1, 4,
6.) Thus, Plaintiff, proceeding pro se, cannot bring
this action, and his claims must be dismissed. 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).
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.