Stone v. Bank of N.Y. Mellon, N.A., CIVIL ACTION NO. 1:11-CV-00081-RWS
| Decision Date | 08 January 2014 |
| Docket Number | CIVIL ACTION NO. 1:11-CV-00081-RWS |
| Court | United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia |
| Parties | CHRISTINE STONE, Plaintiff, v. THE BANK OF NEW YORK MELLON, N.A., f/k/a the Bank of New York Trust Company, N.A., et al., Defendants. |
This case comes before the Court on Plaintiff's Application to Appeal In Forma Pauperis [68]. After reviewing the record, the Court enters the following Order.
On December 17, 2004, Plaintiff Christine Stone ("Plaintiff") obtained a mortgage from Defendant Popular Financial Services, LLC, which was serviced by Defendant Popular Mortgage Servicing, Inc. (collectively, "PMSI") fromDecember 17, 2004, until October 31, 2008. (Dkt. [2] ¶ 15; Dkt. [3-2, 3-3]). The loan was secured by real property located at 2604 Canopy Lane, Marietta, Georgia 30066 ("Property"). (Id.) Defendant Mortgage Electronic Registration Systems, Inc. ("MERS") was appointed as nominee for the originating lender, PMSI, by virtue of the Security Deed. (Dkt. [3-3].) Plaintiff made her scheduled payments through January 2008. (Dkt. [1-1] at 46.) In May 2008, PMSI contacted Plaintiff and indicated its willingness to review the loan for settlement payoff. (Id.) On November 1, 2008, servicing rights in the loan were transferred to Defendant Litton Loan Servicing, LP ("Litton"). (Dkt. [2] ¶ 15.) Plaintiff did not reach a settlement agreement with PMSI prior to transfer. (Id. at 48.) Litton communicated with Plaintiff in February 2009 and offered a compromise settlement in the amount of $600,000. (Dkt. [2], Ex. H, at 46.) Plaintiff does not plead that she tendered the $600,000, which was required for a settlement to be reached. (Id.)
On June 2, 2008, MERS, on behalf of PMSI, assigned its interest in the loan to Defendant Bank of New York Mellon ("BNY"). (Dkt. [2], Ex. K, at 48.) Plaintiff subsequently defaulted on the loan, (Dkt. [2] ¶ 47), and on February 2, 2010, BNY foreclosed on the Property. (Dkt. [3-4].)
On November 15, 2010, Plaintiff filed this action against BNY, JPMorgan Chase Bank, N.A. ("JPMorgan"), MERS, Prommis, Litton, and PMSI (collectively, "Defendants") in the Superior Court of Cobb County, asserting numerous claims under federal and state law. (Dkt. [2] ¶¶ 30-138.) After removing the case, on January 20, 2011, BNY, JPMorgan, MERS, and Litton filed a Motion to Dismiss Plaintiff's Complaint [3], and Prommis later filed its own Motion to Dismiss Plaintiff's Complaint [5], which adopted the arguments set forth in the other Motion to Dismiss [3]. In February 2011, Plaintiff filed her Memorandum of Law in Support of Remanding Back to Superior Court of Cobb County [7] and a Request for Entry of Default Against Defendants Popular Financial Services, LLC and Popular Mortgage Servicing, Inc. [18]. Finally, on March 7, 2011, Plaintiff filed a Motion to Recuse [27].
On July 29, 2011, the Court denied most of Plaintiff's motions but reserved ruling on Plaintiff's Request for Entry of Default [18] until she submitted proof of service on PMSI to the Court. (Dkt. [36].) After she submitted proof that she had served PMSI through the Secretary of State of Georgia, the Court ordered the entry of default on September 6, 2011. OnPMSI's motion, the Court later found service insufficient and set aside the entry of default on June 28, 2012. Plaintiff filed a Motion for Reconsideration [53], which the Court denied on September 13, 2012.
Nearly a year later, on August 7, 2013, the Court issued an Order [56] directing the parties to show cause why this action should not be dismissed for want of prosecution. After considering the parties' responses and the full history of the case, on October 25, 2013, the Court dismissed the action without prejudice. In dismissing the case, the Court noted that Plaintiff had not taken steps to perfect service on PMSI even though she "filed a Motion for Default Judgment [62] relying on service of PMSI that the Court previously found inadequate." (Dkt. [65] at 2.) Following dismissal, on November 22 Plaintiff filed her Application to Appeal In Forma Pauperis [68].
Applications to appeal in forma pauperis are governed by 28 U.S.C. § 1915 and Federal Rule of Appellate Procedure 24. In pertinent part, § 1915 provides:
Similarly, Federal Rule of Appellate Procedure 24 provides:
Thus, both § 1915(a) and Rule 24 make clear that two requirements must be satisfied for a party to prosecute an appeal in forma pauperis. First, the party must show an inability to pay. Second, the appeal must be brought in good faith. Because this is the first determination of Plaintiff's in forma pauperis status in these proceedings, the Court must assess both requirements.
First, Plaintiff has submitted an affidavit demonstrating her inability to pay the filing fee required for an appeal. The Court finds that Plaintiff has made the requisite showing and thus turns to the good faith requirement.
An appeal may not be taken in forma pauperis if the trial court certifies, either before or after the notice of appeal is filed, that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(3). A party demonstrates good faith by seeking appellate review of any issue that is not frivolous judged under an objective standard. See Coppedge v. United States,369 U.S. 438, 445 (1962); Busch v. County of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999); United States v. Wilson, 707 F. Supp. 1582, 1583 (M.D. Ga. 1989), aff'd, 896 F.2d 558 (11th Cir. 1990). An issue is frivolous when it appears that the legal theories are "indisputably meritless." See Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993); see also Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (); Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001) (same). "Arguable means capable of being convincingly argued." Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991) (per curiam). Where a claim is arguable, but ultimately will be unsuccessful, it should be allowed to proceed. See Cofield v. Alabama Pub. Serv. Comm'n., 936 F.2d 512, 515 (11th Cir. 1991).
Plaintiff has not pointed to any specific issues she wishes to raise on appeal, instead summarily stating that she wishes to appeal the orders discussed below. Nevertheless, the Court examines each order for any non-frivolous issue that could be raised on appeal.
On February 14, 2011, the Court granted Defendant Prommis Solutions, LLC's Motion for Enlargement of Time [4]. Because such an order is discretionary and Plaintiff has not identified any abuse of that discretion, an appeal of this issue is legally meritless and not brought in good faith.
On July 29, 2011, the Court entered an Order [36] denying Plaintiff's Motion for Temporary Restraining Order and/or Preliminary Injunction [2], Plaintiff's Motion to Remand [7], and Plaintiff's Motion to Recuse [27]. The Court also granted both Defendants BNY, JP Morgan, MERS, and Litton's Motion to Dismiss [3] and Defendant Prommis's Motion to Dismiss [5], but reserved ruling on Plaintiff's Request for Entry of Default against PMSI [18] for 30 days, during which Plaintiff was required to submit proof of service on PMSI.
In its July 2011 Order, the Court first addressed the recusal issue. Plaintiff advanced a number of arguments for recusal, none of which the Court found availing. After examining each in turn, along with the standard forrecusal, the Court concluded—and still concludes—that Plaintiff's arguments are without merit. First, she stated that the undersigned acted improperly by permitting Defendants to remove the case. (Dkt. [27] at 7-10.) According to Plaintiff, the case is not removable because it is "extricably intertwined with a State Court Appeal." (Id. at 14-25.) Plaintiff also argued that the "Court lacks jurisdiction and has acted in a manner inconsistent with due process of law" by permitting removal and granting Prommis an extension of time to respond without considering whether "Plaintiff had filed an Objection," which she believes shows that she does not have "an impartial and interested tribunal." (Id. at 12, 16-18.) She asserted that the undersigned appears partial to Defend...
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