Smedley v. Ocwen Loan Servicing, LLC

• Decision Date: 23 July 2018
• Docket Number: CIVIL ACTION FILE NO. 1:17-CV-03475-TWT-AJB
• Parties: ANTOINETTE SMEDLEY, Plaintiff, v. OCWEN LOAN SERVICING, LLC; ALDRIDGE PITE, LLP; and MORTGAGE ELECTRONICS REGISTRATION SYSTEMS, INC., Defendants.
• Court: U.S. District Court — Northern District of Georgia

ANTOINETTE SMEDLEY, Plaintiff, v. OCWEN LOAN SERVICING, LLC; ALDRIDGE PITE, LLP;and MORTGAGE ELECTRONICS REGISTRATION SYSTEMS, INC., Defendants.

CIVIL ACTION FILE NO. 1:17-CV-03475-TWT-AJB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

July 23, 2018

UNITED STATES MAGISTRATE JUDGE'S ORDER AND FINAL REPORT AND RECOMMENDATION

Presently before the Court are Defendants' motions to dismiss, [Docs. 3, 4], and Plaintiff's Opposition Motion for Remand or a More Definite Statement, [Docs. 9, 14]. For the reasons set forth herein, the undersigned RECOMMENDS that Defendants' motions be GRANTED and Plaintiff's motions be DENIED. Further, construing Plaintiff's motion for a more definite statement as a motion to amend, the motion is DENIED.

I. Background

A. Procedural Background

Plaintiff was represented by an attorney in this matter until November 16, 2017, when she filed a notice of withdrawal of counsel due to counsel's hospitalization and thereafter proceeded pro se. [Docs. 5, 8].

Plaintiff initially filed her verified complaint in the Superior Court of Rockdale County, Georgia on July 28, 2017. [Doc. 1-1 at 4].¹ On September 11, 2017, Defendants Mortgage Electronic Registration Systems, Inc. ("MERS") and Ocwen Loan Servicing, LLC ("Ocwen") removed the case to this Court, on the grounds of diversity jurisdiction. [Doc. 1 at 1]. Although Plaintiff's claims are not clearly set forth in the complaint in separate counts, the Court gleans that Plaintiff's claims include:

(1) "fraudulent loan misrepresentation" by MERS and Global Mortgage Group, Inc. ("GMG")² in violation of O.C.G.A. §§ 13-8-2 and 14-2-204 (designated in the complaint as "First Cause of Action"), [Doc. 1-1 at ¶¶ 35-50];

(2) Defendants' liability for GMG's violation of the Georgia Residential Mortgage Act ("GRMA"), O.C.G.A. § 7-1-1013 et seq.,(designated in the complaint as "Second Cause of Action"), [id. at ¶¶ 51-65];

(3) Ocwen's and Aldridge Pite, LLP's ("Aldridge"), as loan servicer and counsel respectively, liability for GMG's fraud, and violation of the GRMA and O.C.G.A. § 23-2-114 (designated in the complaint as "Third Cause of Action"), [id. at ¶¶ 65-80];

(4) slander of title (designated in the complaint as "Count III: Slander of Title"), [id. at ¶¶ 96-97];

(5) trespass under O.C.G.A. § 51-9-4 (designated in the complaint as "Count III: Slander of Title"), [id. at ¶¶ 98-100];

(6) false light invasion of privacy (designated in the complaint as "Count III: Slander of Title"), [id.];

(7) breach of the mortgage contract (designated in the complaint as "Count IV: Breach of Contract and Wrongful Foreclosure"), [Doc. 1-1 at ¶ 101];

(8) wrongful foreclosure [id.]; and

(9) breach of covenant of good faith and fair dealing (designated in the complaint as "Count V: Breach of Covenants of Good Faith and Fair Dealings"), [Doc. 1-1 at ¶¶ 102-106].

The relief requested also is not clearly set forth, but the Court gleans that it includes:

(1) a declaratory judgment that any transfers of the loan from GMG were fraudulent and void, (designated in the complaint as "Fifth Cause of Action"), [id. at ¶ 88-90];(2) voiding of MERS assignments (designated in the complaint as "Fourth Cause of Action"), [id. at ¶¶ 81-87];

(3) cancellation of the Deed (designated in the complaint as "Damages: Count I" and "Two"), [id. at ¶¶ 91-95]; and

(4) actual damages of $214,900 as well as punitive damages for slander of title and trespass (designated in the complaint as "Count III: Slander of Title"), [id. at ¶¶ 96-100].

Aldridge, [Doc. 3], and Ocwen and MERS, [Doc. 4], filed separate motions to dismiss on September 18, 2017. Plaintiff did not respond to the motions.³ Instead, on October 12, 2017, Plaintiff filed an emergency motion for a thirty-day stay, alleging that her counsel had been hospitalized on September 8, 2017 and would be in recovery indefinitely. [Doc. 5]. The Court stayed proceedings for thirty days from entry of the order or until Plaintiff secured new counsel, whichever happened first. [Doc. 6]. OnNovember 16, 2017, Plaintiff filed a notice of withdrawal of counsel, [Doc. 8], which the Court construed as her consent to the withdrawal of counsel, [Doc. 10]. On November 16, 2017, Plaintiff filed an Opposition Motion for Remand or More Definite Statement. [Doc. 9]. Defendants filed separate responses on December 1, 2017. [Docs. 11, 12]. Plaintiff then re-filed her motion for remand on January 12, 2018. [Doc. 14].

B. Factual Background

In evaluating the sufficiency of a complaint, a court "must accept the facts pleaded as true and construe them in a light most favorable to [the] plaintiff[]." Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp., S.A., 711 F.2d 989, 994-95 (11^th Cir. 1983). At the same time, however, a court should not accept "conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts." Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11^th Cir. 2002).

On May 20, 2006, Plaintiff executed a Security Deed ("the Deed")⁴ in exchange for an original loan principal of $276,000 from GMG to purchase 1661 BrentwoodCrossing, SE, Conyers, Georgia, 30113 ("the Property"). [Docs. 1-1 at 38; 3-1 at 23-42]. MERS was named as the grantee under the Deed. [Id.].⁵ On May 26, 2006,Plaintiff executed a Note⁶ promising to pay GMG $276,000 plus interest for a loan used to secure the Property. [Doc. 3-1 at 44-47]. In September 2009, MERS assigned⁷ the Deed to Deutsche Bank Trust Company Americas ("Deutsche Bank") as trustee for RALI 2006Q59. [Id. at 39].

Plaintiff claims that MERS was an agent for GMG and because GMG was not registered with the Georgia Secretary of State when the Deed was executed, that she was "misled and falsely induced . . . to sign a loan under false pretenses that it had met GRMA's licensing and registration compliances." [Doc. 1-1 at ¶¶ 12-13]. Plaintiff also claims that MERS should have been aware GMG was unlicensed and assigned the Deed "under fraudulent assumption of authority." [Id. at ¶¶ 14-15]. Plaintiff asserts that Ocwen, as the loan servicer, "became the principal architect in a scheme to deprive Plaintiff of her right to contest the loan" by hiring Aldridge to "collect against aquestionable debt, as their guise to conceal the invalidity of the loan." [Id. at ¶¶ 16-17]. Plaintiff claims that Aldridge "misrepresented the amount due for collections" and "threaten and published misleading public notices to foreclosure[.]" [Id. at ¶ 17].

Plaintiff defaulted on her payments due under the loan⁸ and Ocwen hired Aldridge to conduct a non-judicial foreclosure sale but, as of yet, there has been no foreclosure sale of the Property. [Doc. 4-1 at 3]. Documents attached to Plaintiff's complaint appear to reflect her default, including:

(1) An Acknowledgment and Waiver of Borrower's Rights Rider⁹ to the Deed, executed May 28, 2008, [Doc. 1-1 at 60];

(2) Correspondence to Plaintiff from Ocwen dated June 6, 2017 that informs her she may be eligible for loan modification, [id. at 42-44];(3) Correspondence from Aldridge to Plaintiff dated June 8, 2017 stating that she owes $402,018.17 to Deutsche Bank on a loan for which Ocwen is a servicer, [id. at 57];

(4) A Revocation of Power of Attorney¹⁰ executed by Plaintiff on July 12, 2017, purporting to revoke "any and all rights given at the closing to" GMG, [id. at 58-59];

(5) Correspondence from Plaintiff to Ocwen dated July 20, 2017 that purports to respond to debt collection letters and act as a self-executing contract requiring Ocwen to respond to the claims outlined by Plaintiff, [id. at 45-50]; and

(6) Correspondence from Plaintiff to Aldridge dated July 21, 2017 that purports to respond to debt collection letters and act as a self-executing contract requiring Aldridge to respond to the claims outlined by Plaintiff, [id. at 51-56].

II. Plaintiff's Motion to Remand or For a More Definite Statement

A. Motion for Remand

1. Legal Standards

A defendant may remove a case from state to federal court if the federal court has original jurisdiction over the case. 28 U.S.C. § 1441(a). However, "a court should inquire into whether it has subject matter jurisdiction at the earliest possible stage in the proceedings. Indeed, it is well settled that a federal court is obligated to inquire intosubject matter jurisdiction sua sponte whenever it may be lacking." Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11^th Cir. 1999). Thus, a "district court first must determine whether it has original jurisdiction over the plaintiff's claims." Id. "The district court may remand a case sua sponte for lack of subject matter jurisdiction at any time." Corporate Mgmt. Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d 1294, 1296 (11^th Cir. 2009); see also 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."). Accordingly, the Court addresses, first, whether this case was properly removed to the Court.

Original jurisdiction under § 1441 arises if there is diversity-of-citizenship jurisdiction or federal-question jurisdiction. Geddes v. Am. Airlines, Inc., 321 F.3d 1349, 1352 n.2 (11^th Cir. 2003); Blab T.V. of Mobile, Inc. v. Comcast Cable Commc'ns, Inc., 182 F.3d 851, 854 (11^th Cir. 1999). Defendants removed this case from state court on the basis of diversity-of-citizenship jurisdiction. [Doc. 1 at 1]. In order for a matter to be removable based on diversity-of-citizenship jurisdiction, the citizenship of all plaintiffs must be diverse from the citizenship of all defendants, and the amount in controversy must exceed $75,000. Darden v. Ford Consumer Fin. Co., Inc., 200 F.3d 753, 755 (11^th Cir. 2000); see also 28 U.S.C. §§ 1332(a), 1441(a).Moreover, a civil action removable solely on the basis of diversity jurisdiction "may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such...