Derrick and Sonya STOUDEMIRE et al. v. HSBC BANK USA, N.A.
A15A0091
Court of Appeals of Georgia
June 9, 2015
Reconsideration denied July 22, 2015
776 S.E.2d 483
McFADDEN, Judge.
Richard S. Alembik, for appellants. Baker, Donelson, Bearman, Caldwell & Berkowitz, Joshua N. Tropper, Dylan W. Howard, Daniel P. Moore, Jennifer L. Ervin, for appellee.
Derrick and Sonya Stoudemire filed an action against HSBC Bank USA, N.A. seeking to rescind an allegedly wrongful foreclosure and to quiet title. They based their complaint on the assertion that Wells Fargo’s аssignment of their security deed to HSBC was ineffective, so that HSBC did not have a valid interest in the security deed and thus did not have thе legal right to foreclose. The trial court granted HSBC’s motion to dismiss on the ground that the Stoudemires lacked standing to challenge the assignment of the security deed because they were not parties to the assignment. We agree and therefore affirm.
The Stoudemires signed a promissory note for $187,000 in favor of Wells Fargo and granted Wells Fargo by security deed an interest in their property. The security deed was recorded on September 27, 2005. On September 30, 2006, Wells Fargo assignеd its
The Stoudemirеs acknowledge that we have held that a person who is not a party to an assignment lacks standing to contest its vаlidity. Montgomery v. Bank of America, 321 Ga. App. 343, 346 (2) (740 SE2d 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 SE2d 538) (1991) (“Appellants are strangers to the assignment contract between appellee and [the bank] and thus have no standing to challenge its validity.”). They argue that Montgomery is incompatible with Scott v. Cushman & Wakefield of Ga., 249 Ga. App. 264 (547 SE2d 794) (2001), in which this court held that an оbligor had standing to challenge an assignment even though he was not a party to the assignment. In Scott, however, the obligor did not challenge the validity of an assignment, but challenged the existence of such an assignment in the first place. In Montgomery, as in the instant case, there is no question that an assignment exists.
The Stoudemires argue that the rule that only parties can challengе an assignment’s validity should not apply to facially void assignments. This assignment, they argue, is void on its face because it is a fоrgery and it was not signed by the necessary corporate officers. We need not decide whether facially vоid assignments are excepted from the rule because the Stoudemires have not shown that their assignment is facially vоid.
A void contract is one that has no effect whatsoever and is incapable of being ratified, while a voidablе contract is one that is unenforceable at the election of the injured party. See Dal-Tile Corp. v. Cash N’ Go, 226 Ga. App. 808, 811-812 (487 SE2d 529) (1997) (Beasley, J., concurring specially). Contracts to do illegal or immoral things, contracts against public policy, and gambling contracts, for example, are void.
The Stoudemires rely on the notary seal to support their claim that the assignment is a forgery. They assert that the notary seal shows that the notary’s commission was to expire on August 5, 2014, that notаry commissions are limited to four years under
The Stoudemires argue that the assignment was invalid under the applicable version of
that
the presence of a corporate seal and attestation by another corporate officer is conclusive evidence that said officers signing are duly authorized to execute and deliver thе same[,] [t]he lack of corporate seal and attestation . . . is not conclusive evidence that the cоrporate officer executing a deed lacks corporate authority to do so.
Hacienda Corp. v. White, 260 Ga. 879, 880 (2) (400 SE2d 323) (1991) (emphasis in original). Consequently, any defect in this regard did not render the assignment void on its face.
As the Stoudemires have not alleged facts showing that their assignment is facially void, we need not decide whether to adopt their proposed exception to the rule that only persons who are parties to an assignment have standing to challenge its validity. The trial court did nоt err in dismissing the complaint.
Judgment affirmed. Ellington, P. J., and Dillard, J., concur.
McFADDEN
Judge