OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Magistrate Judge Catherine M. Salinas's Final Report and Recommendation ("R&R") . The R&R recommends the Court grant Defendants Deutsche Bank National Trust Company as Trustee for American Home Mortgage Assets Trust 2007-1 Mortgage Backed Pass Through Certificates Series 2007-1's ("Deutsche Bank") and Weissman, Nowack, Curry & Wilco, P.C.'s ("Weissman") (together "Defendants") Motions to Dismiss [12, 13].
On February 20, 2004, Plaintiff Timothy Dean Williams ("Plaintiff") obtained a loan in the amount of $237,000 from Green Point Mortgage Funding Inc. ("Green Point"). (Complaint [1.1] at 4). Repayment of the loan was secured by a deed ("2004 Security Deed") to real property located at 221 16th Street, #4, Atlanta, Georgia (the "Property"). (
On November 16, 2006, Plaintiff refinanced existing debt and obtained a $388,000 loan from American Brokers Conduit ("ABC"). ( at 2; R&R at 4;
In connection with the refinance, on December 6, 2006, a Satisfaction of Mortgage, in the amount of $237,000, was paid to MERS, with respect to the 2004 Security Deed. (Compl. at 5; R&R at 4;
On July 26, 2011, MERS assigned the 2006 Security Deed to Deutsche Bank, with an effective date of December 27, 2010 ("the Assignment"). [13.2]. Plaintiff contends that ABC went out of business in 2010, making the Assignment in 2011 invalid because it occurred after ABC was out of business. (Compl. at 5-6).
At some point, Plaintiff alleges, he became suspicious of Deutsche Bank's "standing" to collect Plaintiff's mortgage payments and Plaintiff began withholding payments. (Compl. at 6). Plaintiff contends he is a "pawn in a mortgage scam" of Deutsche Bank and their attorneys, Weissman.
On August 1, 2017, Plaintiff, proceeding pro se, filed his Complaint in the Superior Court of Fulton County, Georgia. Plaintiff appears to argue that the Assignment to Deutsche Bank was not valid, and that Deutsche Bank thus lacks authority to foreclose on his home. Plaintiff asserts claims against Defendants to quiet title, title fraud, wrongful attempted foreclosure, and fraudulent assignment. Plaintiff further alleges Defendants violated both federal and state civil RICO statutes, the pooling and servicing agreement ("PSA") for the trust into which his loan was allegedly transferred, Internal Revenue Code § 860A-G ("IRC"), and the Securities Exchange Act of 1934 (the "'34 Act"). ([1.1]).
On August 31, 2016, Weissman filed its Motion to Dismiss in Fulton County Superior Court . That same day, both Defendants removed the case to this Court on the basis of federal question jurisdiction . Defendants also assert that the Court has diversity jurisdiction over this action because Weissman, a Georgia citizen, was fraudulently joined. ( at 4).
On September 7, 2016, Deutsche Bank moved to dismiss Plaintiff's Complaint. ().
On September 20, 2016, Plaintiff responded to Defendants' Motions to Dismiss. .
On March 2, 2017, the Magistrate Judge ordered Defendants to amend their Motions to Dismiss [12, 13], including to provide pleadings from the two previous state court actions which, Defendants claim, support that this action is barred by collateral estoppel. Plaintiff did not file a response to the amended motions.
On April 20, 2017, the Magistrate Judge issued her R&R, which recommends granting Defendants' Amended Motions to Dismiss because Plaintiff fails to state a viable claim for relief because he lacks standing to challenge the Assignment.
Review of a Magistrate Judge's R&R
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1);
Motion to Dismiss
On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must "assume that the factual allegations in the complaint are true and give the plaintiff the benefit of reasonable factual inferences."
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'"
Complaints filed pro se are to be liberally construed and are "held to less stringent standards than formal pleadings drafted by lawyers."
Standing to Challenge the Assignment
All of Plaintiff's claims are based on his assertion that Deutsche Bank does not have the authority to foreclose on the Property because ABC went out of business in 2010, and thus the Assignment, which was executed in 2011 and purports to convey ABC's rights under the Security Deed to Deutsche Bank, is invalid. (Compl. at 3-4, 6-9). The Magistrate Judge concluded that Plaintiff lacks standing to challenge the Assignment because Plaintiff was not a party to the Assignment, and he does not allege that the Assignment was made for his benefit. Because Plaintiff cannot state a viable claim for relief based on perceived defects in the Assignment, the Magistrate Judge recommended that Plaintiff's claims be dismissed. The Court finds no plain error in this recommendation.
Additional Grounds for Dismissal
The Magistrate Judge found that, to the extent Plaintiff asserts a claim to quiet title, Plaintiff did not comply with the requirements of O.C.G.A. § 23-3-62, including because Plaintiff's Complaint does not contain a plat of the survey of the land. The Magistrate Judge recommended that Plaintiff's claim for quiet title be dismissed for this additional reason, and the Court finds no plain error in this recommendation.
The Magistrate Judge also found that Plaintiff fails to state a claim for title fraud under Georgia Code Section 44-2-43 because the statute does not provide a private cause of action for title fraud. The Magistrate Judge recommended that Plaintiff's claim for title fraud be dismissed for this additional reason, and the Court finds no plain error in this recommendation.
The Magistrate Judge found that Plaintiff admits he withheld his mortgage payments and he does not allege, and it does not appear, that he is current on his loan obligations. Because failure to make the proper loan payments or tender the amount due defeats any claim for wrongful foreclosure, the Magistrate Judge recommended that Plaintiff's claim for attempted wrongful foreclosure be dismissed for this additional reason. The Court finds no plain error in this recommendation.
The Magistrate Judge concluded that Plaintiff's conclusory, vague, and meritless allegations that Defendants engaged in fraud are not sufficient to support claims for civil RICO, violation of the IRC or violation of the `34 Act. The Magistrate Judge recommended that these claims be dismissed, and the Court finds no plain error in this recommendation.
The Court has reviewed the record in this case and, finding no plain error in the unobjected-to findings and conclusions, adopts the findings and recommendations in the R&R.
For the foregoing reasons,