Lead Opinion
Carlo Larose filed a complaint for wrongful attempted foreclosure and related claims against Bank of America, N.A. and others. The defendants moved to dismiss the complaint for failure to state a claim. The trial court granted the motions to dismiss, and Larose appeals pro se. We affirm for the reasons set forth below.
Under OCGA § 9-11-12 (b) (6), a motion to dismiss for failure to state a claim upon which relief can 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.
(Citation and punctuation omitted.) Anderson v. Daniel,
So construed, the pleadings show that on October 14, 2005, Larose obtained a mortgage loan from America’s Wholesale Lenders, executing a promissory note in the principal amount of $120,000 and a deed securing the debt. The security deed provided that Mortgage Electronic Registration Systems, Inc. (“MERS”) was authorized to act as “nominee” on behalf of America’s Wholesale Lenders and had “the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to releasing and cancelling this Security Instrument.” The note provided that it was transferable by the lender, America’s Wholesale, but made no mention of MERS. In 2011, MERS purportedly transferred and assigned both the security deed and the note to Bank of New York Mellon. After Larose allegedly defaulted on the loan and a nonjudicial foreclosure sale was initiated, but prior to actual foreclosure, Larose filed the instant action.
As the trial court noted in its order, Larose “contends that the Assignment was invalid because MERS was never the owner and holder of the Note. Therefore, according to [Larose], MERS was without authority to execute an assignment to [Bank of New York Mellon] and, following this logic, [the bank] was without authority to foreclose.” In dismissing the complaint, the trial court went on to hold that it was not persuaded by Larose’s “insistence that the foreclosing entity must be a holder in due course and produce the Note before it can carry out the foreclosure.” The trial court further found that Larose had not cited “any Georgia statute or decision interpreting Georgia law that precludes the holder of the security deed from proceeding with a foreclosure sale simply because it does not also possess the promissory note.” On appeal, Larose asserts that the trial court erred (1) in dismissing his complaint for wrongful foreclosure based upon a finding that an assignment of the note, along with the security deed, was unnecessary for foreclosure; and (2) in ruling as a matter of law that MERS’ assignment of the security deed was valid.
With regard to Larose’s first enumeration, we are bound by the reasoning in this Court’s case of Montgomery v. Bank of America,
We also find no merit to Larose’s argument that the assignment by MERS to the Bank of New York Mellon was invalid. The security deed signed by Larose granted and conveyed Larose’s property to MERS, its successors and assigns, along with the power of sale, stating that “if necessary to comply with law or custom, MERS... has the right to exercise: any or all of [the interests granted to MERS by Larose], including but not limited to, the right to foreclose and sell the Property. ...” Thus, we find persuasive the cases from the Northern District of Georgia holding that such language grants MERS the power of assignment:
[Larose] unequivocally authorized MERS’s involvement in the transaction by executing a security deed in its favor. Additionally, the Deed recognizes MERS’s right of assignment by granting power of sale “to the successors and assigns of MERS.” This right of assignment is in accord with Georgia law. See OCGA § 44-14-64 (authorizing transfer of security deeds by way of assignment).
Alexis v. Mtg. Electronic Registration Systems, Inc.,
The dissent would remand this case because this Court previously declined to decide the issue raised in Larose’s first enumeration of error in U. S. Bank, N. A. v. Phillips,
Moreover, we are obligated by statute to decide the case under the current law even though the Supreme Court of Georgia may at some point address the issue raised in Larose’s first enumeration of error. As noted by our Supreme Court, “[t]he General Assembly has made it clear that all points raised in an appeal are to be considered by the appellate court.” Felix v. State,
Therefore, we see no compelling reason, and the dissent offers none, why we should ignore the legislature’s mandate to decide every case on the merits. Instead, we must reach the merits of Larose’s appeal, and finding no error by the trial court, we affirm the order dismissing Larose’s complaint for failure to state a claim.
Judgment affirmed with direction.
Notes
This Court, however, is not required to consider Larose’s claim that the foreclosure notice was insufficient as that claim was neither raised nor ruled upon below. See Designs Unlimited, Inc. v. Rodriguez,
Dissenting Opinion
dissenting.
I respectfully dissent. The central issue presented by this case is whether a security deed holder who does not also hold the promissory note can validly institute foreclosure proceedings. This very issue is pending before the Supreme Court of Georgia on a certified question from a federal district court because there is no clear Georgia precedent on this matter. Accordingly, rather than rendering an opinion that may ultimately be inconsistent with our Supreme Court’s decision and for purposes of judicial economy, we should vacate the trial court’s order of dismissal, remand the case to the trial court, and direct the trial court to stay further proceedings until the Supreme Court’s decision on this dispositive issue. We recently did exactly that in another case presenting this same issue: U. S. Bank, N.A. v. Phillips,
On appeal, Larose contends that the trial court erred in dismissing the wrongful attempted foreclosure claim and based on that error it also improperly dismissed the other related claims. Larose argues that Georgia law mandates that a bank hold both the security deed and the note in order to initiate foreclosure proceedings. Thus, it is apparent that the instant case raises the very question that is presently before our Supreme Court and that led this court to vacate, remand, and stay in U. S. Bank, N.A.
[I]n You v. JPMorgan Chase Bank, N.A., No. 1:12-cv-202-JEC-AJB, 2012 U. S. Dist. LEXIS 127461, at *17 (III) (C) (N.D. Ga. Sept. 7, 2012), inquiring “whether a security deed holder who does not also hold the note, or have an interest in the underlying debt obligation, can validly institute foreclosure proceedings.” Recognizing that there are no clear controlling precedents deciding this issue, the federal court certified the question to the Supreme Court of Georgia. Id. The Supreme Court of Georgia’s decision inYou v. JP Morgan Chase Bank, N.A., Case No. S13Q0040 (docketed Sept. 13, 2012) will be dispositive of the question of whether [the] complaint asserts a viable claim for relief against [the defendants]. Accordingly, the trial court’s order as to the wrongful attempted foreclosure claim [and related claims] is vacated, and this case is remanded. Any further proceedings in this matter should be stayed until the Supreme Court of Georgia has rendered its decision in You, supra.
(Punctuation omitted.) U. S. Bank, N.A., supra. It is true that Larose enumerates a second error regarding the validity of MERS’s assignment of the security deed, but that issue is intertwined with the question pending before our Supreme Court.
Notwithstanding that pending certified question, the majority resolves this case on the merits. Its resolution may well match the decision eventually reached by our Supreme Court. But it may not. That court’s analysis may diverge from ours — perhaps substantially, perhaps just enough to confound the parties and the trial court.
There is a split of authority in the Northern District of Georgia on this issue — which is why that court certified the question. See You v. JPMorgan Chase Bank, N.A., No. 1:12-CV-202-JEC-AJB,
has not been universally followed in this district, however, and a split of authority has developed as to whether a deed holder who does not also possess the note can validly institute foreclosure proceedings under Georgia law. Denying a motion to dismiss on facts similar to those presented here, a colleague has held that “separation of the note and the security deed . . . create [s] a substantial question of what entity has the right to foreclose when the borrower defaults on the loan.” Morgan v. Ocwen Loan Serv., LLC,795 F.Supp.2d 1370 , 1375 (N.D. Ga. 2011) (Totenberg, J.). Addressing the issue more directly in a later case, the Morgan court concluded that “Georgia statutes and case law require the holder of the loan to carry out the foreclosure and to identify itself as the secured creditor of public record prior to the foreclosure sale.” Stubbs v. Bank of Am.,844 F.Supp.2d 1267 , 1273 n. 3 (N.D. Ga. 2012) (Totenberg, J.).
Id. at *5.
There is no merit to the majority’s suggestion that we are compelled to disregard that split of authority and the pending certified question by OCGA § 5-6-30, OCGA § 5-6-48 (b), or by our Supreme Court’s decision in Felix v. State,
As in U. S. Bank, N.A., the circumstances here are analogous to those in which a trial court’s summary judgment ruling relied on an erroneous legal theory. In such cases “we have discretion either to [reach the merits] or to return the case to the trial court for further proceedings.” McRae v. Hogan,
In this case, as the issue is pending before our Supreme Court, we cannot authoritatively determine whether or not the trial court relied on an erroneous legal theory in dismissing
Accordingly, as we didin U. S. Bank, N.A., we should remand this case to the trial court and direct that further proceedings should be stayed pending the Supreme Court’s decision in You. The trial court should be directed, upon decision by our Supreme Court, to reconsider the motion to dismiss and enter an order consistent with that opinion. The parties would, of course, be entitled to pursue appropriate appellate rights from that trial court order.
I am authorized to state that Presiding Judge Miller joins in this dissent.
Concurrence Opinion
concurring fully and specially.
I concur fully with the majority. I write separately only to note that while I concurred in the opinion in TJ. S. Bank, N.A. v. Phillips,
You was docketed in the Supreme Court of Georgia on Sept. 13, 2012.