Tag Archives: secured creditor

Georgia Court Finds that the Assignment of the Security Deed from MERS to Ocwen Permitted it to Exercise the Power of Sale Under the Security Deed Even Though Ocwen did not Hold the Note

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The court in deciding Thompson v. Fed. Home Loan Mortg. Corp., 2013 U.S. Dist. (N.D. Ga., 2013) granted defendant’s motion to dismiss.

Plaintiff filed this complaint challenging the defendants’ right to foreclose on his property and alleged the following: (1) the defendants failed to provide plaintiff with statutory notice of the foreclosure sale thirty days prior to November 6, 2012, in violation of O.C.G.A. § 44-14-162.2(a); (2) the defendants violated O.C.G.A. § 44-14-162.2(a) by failing to identify Freddie Mac as the secured creditor and failing to indicate Ocwen as an agent on Freddie Mac’s behalf; and (3) Ocwen lacked the authority to institute foreclosure proceedings because it only possessed the security deed while Freddie Mac was in possession of the note.

Defendants moved to dismiss plaintiff’s complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

In regards to the failure to record the security deed, the plaintiff further alleges that Ocwen lacked the authority to institute foreclosure proceedings because the security deed was improperly assigned and recorded in its favor. According to the plaintiff, the security deed should have been recorded in favor of Freddie Mac, the note holder and “true secured creditor.”

The court found that the assignment of the security deed from MERS to Ocwen permitted it to exercise the power of sale under the Security Deed even though Ocwen did not also hold the note. Thus the court decided that the plaintiff was unable to state a claim for wrongful foreclosure, and the defendants’ motion to dismiss was granted. The court likewise rejected the plaintiff’s remaining claims.

Georgia Court Dismisses RESPA, TILA, and HOEPA Claims

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The court in deciding Mitchell v. Deutsche Bank Nat’l Trust Co., 2013 U.S. Dist. (N.D. Ga., 2013) granted the defendant’s motion to dismiss.

Plaintiffs Reginald and Jamela Mitchell claimed that the defendants Deutsche Bank National Trust Co. and MERS violated the Truth-in-Lending Act (“TILA”), the Real Estate Settlement Procedures Act (“RESPA”), the Home Ownership Equity Protection Act (“HOEPA”) and state law by commencing foreclosure proceedings against Plaintiffs’ home.

After consideration of the plaintiff’s assertions, the court concluded that the complaint failed to state a claim upon which relief could be granted.

Georgia Court Dismisses TILA and RESPA Claims Brought by Plaintiff

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The court in deciding Mitchell v. Deutsche Bank Nat’l Trust Co., 2013 U.S. Dist. (N.D. Ga. Sept. 25, 2013) granted the motion to dismiss proffered by the defendant.

The first enumerated cause of action in Plaintiffs’ complaint was a claim for fraud. Plaintiffs argued that their original mortgage lender, Accredited, engaged in a practice of filing false prospectus supplements with the Securities and Exchange Commission. Plaintiffs’ complaint also included a claim for wrongful foreclosure.

Next, the plaintiffs asserted that Deutsche Bank and MERS had “unclean hands” as they failed to make certain disclosures required by TILA. Plaintiffs also asserted that the defendants or their predecessors in interest violated RESPA in a number of ways. Plaintiffs’ complaint also included a claim for fraud in the inducement. Moreover, the plaintiffs’ complaint raised a claim for quiet title under O.C.G.A. § 23-3-40 and O.C.G.A. § 23-3-60 et seq. Lastly, the plaintiffs’ complaint raised a claim for fraudulent assignment.

Ultimately the court concluded that the plaintiffs’ complaint failed to state a viable claim for relief. Accordingly, this court granted the defendants’ motion to dismiss the plaintiffs’ complaint.