Jurden v. HSBC Mortg. Corp.

• Decision Date: 14 November 2014
• Docket Number: No. A14A1218.,A14A1218.
• Citation: 765 S.E.2d 440,330 Ga.App. 179
• Parties: JURDEN v. HSBC MORTGAGE CORPORATION.
• Court: Georgia Court of Appeals

330 Ga.App. 179

765 S.E.2d 440

JURDEN

v.HSBC MORTGAGE CORPORATION.

No. A14A1218.

Court of Appeals of Georgia.

Nov. 14, 2014.

Reconsideration Denied Dec. 4, 2014.

Certiorari Dismissed April 20, 2015.

Christopher C. McClurg, Lawrenceville, for Appellant.

Burr & Forman, Amanda Elizabeth Wilson, Atlanta, for Appellee.

Opinion

McFADDEN, Judge.

Jerry Jurden appeals from the trial court's dismissal of his complaint against HSBC Mortgage Corporation for failure to state a claim. Because Jurden can prove no set of facts in support of the complaint that would entitle him to relief, we affirm.

1. Failure to state a claim.

Jurden contends that the trial court erred in granting HSBC's motion to dismiss the complaint for failure to state a claim under OCGA § 9–11–12(b)(6). We disagree.

A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party's favor. In other words, a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.

Austin v. Clark, 294 Ga. 773, 774–775, 755 S.E.2d 796 (2014) (citations and punctuation omitted).

In this case, Jurden filed a pro se complaint against HSBC Mortgage Corporation, setting forth claims of wrongful foreclosure, fraud and unjust enrichment. The claims arise out of HSBC's non-judicial foreclosure sale of certain real property that secured Janie Bernice Crowe's residential mortgage loan. As alleged in Jurden's complaint, Crowe purchased the tract of real property in December 2006. In January 2007, Jurden purchased a house and moved it onto the property, where he and Crowe lived together. In March 2008, Crowe obtained a $363,750 loan and secured it with the property by signing a security deed in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”). After Crowe defaulted on the loan, HSBC initiated foreclosure proceedings pursuant to MERS' transfer of its interests in the security deed to HSBC.

Jurden's claims are premised on challenges to the propriety of the loan agreement between Crowe and the bank, including the use of the house on the property as part of the security, as well as challenges to the propriety of the transfer of the security deed interest from MERS to HSBC. However, with regard to the house located on the land, under Georgia law, real estate means “[a]ll lands and the buildings thereon[.]” OCGA § 44–1–2(a)(1). See also Barrett v. Britt, 319 Ga.App. 118, 121, 736 S.E.2d 148 (2012) (item attached to the land becomes a part thereof and would ordinarily pass in a conveyance of the land).

Moreover, Jurden has no standing to challenge either the loan agreement or the assignment of the security interest to HSBC because, as plainly averred in his complaint, he was not a party to either contract. See Montgomery v. Bank of America, 321 Ga.App. 343, 346(2), 740 S.E.2d 434 (2013) (plaintiff lacked standing to contest validity of assignment of note and security deed because assignment was a “contract between MERS and [loan servicing company]”); Breus v. McGriff, 202 Ga.App. 216(1), 413 S.E.2d 538 (1991) (“Appellants are strangers to the assignment contract between appellee and [the bank] and thus have no standing to challenge its validity.”) Nor has Jurden alleged that he was a third-party beneficiary under either the loan agreement or the assignment contract. See Marvel Enterprises v. World Wrestling Federation Entertaiment, 271 Ga.App. 607, 614 –615(5), 610 S.E.2d 583 (2005) (in order for a third party to have standing to enforce such a contract it must clearly appear from the contract that it was intended for his benefit). On the contrary, it is clear from the averments...