IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
MICHAEL L. MORGAN,
OCWEN LOAN SERVICING,
SYSTEMS, INC., and
Although the separation of the note and the security deed does not render either instrument void, it does create a substantial question of what entity has the right to foreclose when the borrower defaults on the loan. The Georgia Supreme Court has expressly reserved ruling on the question of “whether MERS, as nominee for the
original lender and its successors, has the power to foreclose on an existing security deed either with or without the participation of the existing note holder.” Taylor, Bean & Whitaker v. Brown, 583 S.E.2d at 848. Many other courts have questioned MERS’s right to foreclose or effect an assignment of a security instrument, as it admittedly holds no beneficial interest in the note or security instrument. See Landmark v. Kesler, 216 P.3d at 167 (“If MERS is only the mortgagee, without ownership of the mortgage instrument, it does not have an enforceable right.”); Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619, 624 (Mo. Ct. App. 2009) (“MERS never held the promissory note, thus its assignment of the deed of trust to Ocwen separate from the note had no force.”); In re Agard, No. 810-77338, 2011 WL 499959, at *16 (E.D.N.Y. Feb. 10, 2011) (“[W]ithout more, this Court finds that MERS’s ‘nominee’ status and the rights bestowed upon MERS within the Mortgage itself, are insufficient to empower MERS to effectuate a valid assignment of mortgage.”).
The question presented by this case is not whether MERS has authority to foreclose under Georgia law, but whether an assignment of a security deed from MERS to Ocwen empowers Ocwen to foreclose when Ocwen does not hold the note.
Georgia law authorizes the secured creditor, the holder of the obligation, to exercise a power of sale. See O.C.G.A. §§ 44-14-162 et seq.7 The Georgia Supreme Court has clearly indicated that the right to foreclose lies with the party that holds the indebtedness:
Could there be a more conclusive defense to the foreclosure than that the party prosecuting it was not the holder of the debt or demand secured by the mortgage, which he failed to produce when called on, and offered nothing to show that he controlled it, or to explain why it was not forthcoming at the trial?
Weems v. Coker, 70 Ga. 746, 749 (1883), cited by Truitt v. Moister, 11 B.R. 15 (Bankr. N.D. Ga. 1981); see also Bowen, 438 S.E.2d at 122; Boaz, 580 S.E.2d at 578; Cummings v. Anderson, 173 B.R. 959, 963 (Bankr. N.D. Ga. 1994) (foreclosure was null and void where the entity foreclosing did not have an actual assignment of the note and security deed), aff’d, 112 F.3d 1172 (11th Cir. 1997); Weston v. Towson, No. 5:04- CV-416, 2006 WL 2246206, at *6 (M.D. Ga. Aug. 4, 2006) (“[T]he holder of the note continues to retain remedies under the security deed so long as the debt evidenced by the note has not been satisfied.”).
Plaintiff has alleged that Ocwen is attempting to foreclose when it is not the holder of the note. (Compl. ¶ 25.) Moreover, in publishing the foreclosure notice, Ocwen did not purport to be acting as agent for the actual holder of the note, but rather asserted that it was acting on its own behalf. (Id. ¶ 61.) These allegations clearly support a claim for wrongful foreclosure. The Court need not reach the question of whether an agent for the holder of the debt can carry out a power of sale foreclosure under Georgia law, as Ocwen did not advertise the foreclosure as agent for any disclosed principal.
Defendants further argue that there can be no cause of action for wrongful foreclosure here because the foreclosure has not taken place. However, courts have recognized a cause of action for wrongful attempted foreclosure when a foreclosure action was commenced, but not completed, where plaintiffs have shown that a defendant “knowingly published an untrue and derogatory statement concerning the plaintiffs’ financial conditions and that damages were sustained as a direct result.” Sale City Peanut & Milling Co. v. Planters & Citizens Bank, 130 S.E.2d 518, 520 (Ga. Ct. App. 1963).9 Furthermore, Plaintiff is clearly seeking injunctive relief barring Ocwen from foreclosing wrongfully because it allegedly is not the holder of the note. (Compl. ¶¶ 40-43, 63.) A court may enjoin a nonjudicial foreclosure sale in a wrongful foreclosure action where the authority to foreclose is in question. See Atlanta Dwellings, Inc. v. Wright, 527 S.E.2d 854, 856 (Ga. 2000); West v. Koufman, 384 S.E.2d 664, 666 (Ga. 1989); Cotton v. First Nat’l Bank of Gwinnett Co., 220 S.E.2d 132 (Ga. 1975).
Thus, Plaintiff’s claims for injunctive relief (Count II), wrongful foreclosure (Count VI), and negligence (Count VIII) are not subject to dismissal at this time.
Defendants’ motion to dismiss Plaintiff’s claims for injunctive relief (Count II), wrongful foreclosure (Count VI), negligence (Count VIII), intentional infliction of emotional distress (Count VII), and RICO (Count IX) is DENIED. IT IS SO ORDERED…
BIG WIN IN GA | Morgan v Ocwen, MERS
As you know, for years I have been making the argument in GA that ONLY a “secured creditor” can advertise and notice a “non-judicial” foreclosure sale due to the state statute and my analysis and opinion as detailed below.
Read the attached great legal decision by a Federal Judge in GA that concurs with my analysis to the point, while she left for a future date a decision on if an agent of a “secured creditor” can conduct a non-judicial foreclosure (she let them off the hook for now) she does state that a servicer advertising foreclosure in its name can be sued for wrongful foreclosure!!! BIG, BIG, BIG WIN!!!!!
Full opinon below after my analysis posted one year ago here on 4closureFraud.org
ONLY A “SECURED CREDITOR” May Conduct A Non-Judicial Foreclosure In Georgia
Friends & Colleagues,
One of the MAJOR attack strategies we have lawyers executing in the state of Georgia is that ONLY A “SECURED” CREDITOR may advertise and conduct a “non-judicial” foreclosure. You will see not only our logic, but one of the lending industry’s top lawyers who used to be partners and of counsel to the Shapiro group in Georgia AGREE WITH ME AND IN HIS WORDS, SAYS ONE DAY MERS IS GOING TO HAVE A BIG SURPRISE IN THE GA SUPREME CT OR 11TH CIRCUIT!!!
I will get to the evidence, his comments etc… in a moment. But, for this moment, we all know that MERS is NEVER a creditor, let alone a “secured creditor.” Next, we know a servicer or subservicer is not a secured creditor. As such A PARTY “HOLDING” THE NOTE FOR “ENFORCEMENT” may be able to “enforce” via a “judicial foreclosure stating the agency relationship, BUT IT CANNOT ADVERTISE OR CONDUCT A “NON-JUDICIAL” foreclosure sale and ALL the foreclosures that have been conducted in MERS’ name ONLY are subject to being voided.
Next, besides challenging the fact that they are a “creditor” by evidence, you must challenge their “secured” status and make sure that all assignments in the chain are present and properly executed and dated per the PSA and offering documents or governing master agreement between the sellers and purchasers. Challenge the perfection of the lien interests. Challenge “holder in due course” status and make claims for appraisal and mortgage fraud against the originators. Challenge EVERYTHING since we know they lie and especially if you have evidence from MERS and the Fannie and Freddie websites that they are the lender.
Since Fannie and Freddie allow and dictate to the servicer that they foreclose in THEIR NAMES, that is prima facie evidence THAT THE PARTY CONDUCTING THE NON-JUDICIAL FORECLOSURE IS NOT THE SECURED CREDITOR AND MAY NOT BRING FORTH THE ACTION NON-JUDICIALLY!
Fannie Mae in recent announcements also prohibits MERS from foreclosing in its name anymore. So, what about all the prior foreclosure actions in MERS’ name and the lies and frauds there?
As for the evidence please take note of the following facts and information I have researched…
Hugh Wood is a Licensed Attorney in Atlanta, GA who seems to be not only well-educated, but well-versed in the foreclosure laws in the state of Georgia. His stated areas of expertise include: Real Estate Litigation, Foreclosure Litigation (Lender), Lender Defense, Condemnation Litigation, and Complex Civil Litigation. His email addy is email@example.com. His firm maintains an AV rating from Martindale-Hubbell. He has an LL.M., in Litigation, Emory University, Atlanta, Georgia, 1986; a J.D., University of Alabama, Tuscaloosa, Alabama, 1983; and a B.S.B.A., (Marketing/Finance) Auburn University, Auburn, Alabama, 1980, (with honors).
His representative client list is like a Who’s Who of bankers and mortgage clients and includes JPMorganChase, Bank of America, GE, Fannie Mae, WAMU, Countrywide, Fleet, SunTrust, Wells Fargo etc… (http://www.woodandmeredith.com/attorneys/hwood.html )
In short, someone who seems to represent virtually every major bank in his region. However, what is peculiar about this situation is that he used to work with and be of counsel to the “Shapiro” LOGS partner/group in Atlanta called Shapiro & Swertfeger.
Attorney Wood also runs a nice blog located at http://hughwood.blogspot.com/. In a blog post dated 2/24/09, Mr. Wood listed GA’s laws on non-judicial foreclosures and comments and responses to GA’s non-judicial foreclosure laws in a piece titled “Georgia’s Non-Judicial Forelosure Statutes :: Just the Nuts and Bolts” This blog post is located here… http://hughwood.blogspot.com/2009/02/georgias-non-judicial-forelosure.html
The pertinent section of the statute (they are all listed on the blog site) is OCGA § 44-14-162.
OCGA § 44-14-162. Sales Made On Foreclosure Under Power Of Sale — Manner Of Advertisement And Conduct Necessary For Validity.
(a) No sale of real estate under powers contained in mortgages, deeds, or other lien contracts shall be valid unless the sale shall be advertised and conducted at the time and place and in the usual manner of the sheriff’s sales in the county in which such real estate or a part thereof is located AND unless notice of the sale shall have been given as required by Code Section 44-14-162.2. If the advertisement contains the street address, city, and ZIP Code of the property, such information shall be clearly set out in bold type. In addition to any other matter required to be included in the advertisement of the sale, if the property encumbered by the mortgage, security deed, or lien contract has been transferred or conveyed by the original debtor to a new owner and an assumption by the new owner of the debt secured by said mortgage, security deed, or lien contract has been approved in writing by the secured creditor, then the advertisement should also include a recital of the fact of such transfer or conveyance and the name of the new owner, as long as information regarding any such assumption is readily discernable by the foreclosing creditor. Failure to include such a recital in the advertisement, however, shall not invalidate an otherwise valid foreclosure sale.
(b) The security instrument or assignment thereof vesting the secured creditor with title to the security instrument shall be filed prior to the time of sale in the office of the clerk of the superior court of the county in which the real property is located.
History. Amended by 2008 Ga. Laws 576, OCGA § 1, eff. 5/13/2008.
Amended by 2001 Ga. Laws 266, OCGA § 1, eff. 7/1/2001.
NOW, THE KEY COMES IN THE FOLLOWING SECTION OF THE STATUTE….
OCGA § 44-14-162.2. Sales Made On Foreclosure Under Power Of Sale — Mailing Of Notice To Debtor — Procedure For Mailing Notice.
(a) Notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure. Such notice shall be in writing, shall include the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor, and shall be sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the property address or to such other address as the debtor may designate by written notice to the secured creditor. The notice required by this Code section shall be deemed given on the official postmark day or day on which it is received for delivery by a commercial delivery firm. Nothing in this subsection shall be construed to require a secured creditor to negotiate, amend, or modify the terms of a mortgage instrument.
(b) The notice required by subsection (a) of this Code section shall be given by mailing or delivering to the debtor a copy of the notice of sale to be submitted to the publisher.
History. Amended by 2008 Ga. Laws 576, OCGA § 2, eff. 5/13/2008.
Amended by 2001 Ga. Laws 370, OCGA § 6, eff. 7/1/2001.
In very simple terms and black letter law, ONLY THE OR “A” SECURED CREDITOR HAS A RIGHT to conduct a non-judicial foreclosure sale in the state of Georgia. NEXT, for the notice to be valid, they must supply you a name of the individual or entity that has FULL authority, NOT LIMITED PRE-GRANTED AUTHORITY, to 1) NEGOTIATE, 2) AMEND, 3) OR MODIFY the terms of a mortgage instrument.
This includes things in the mortgage instrument such as assumption agreements, property transfers, notice clauses etc…
As such, Fannie Mae and Freddie Mac, not the servicer, must be that entity. When Fannie and Freddie grant “limited” “pre-canned” authorities, it cannot shirk its FULL duties and responsibilities onto the servicer, MERS, or other claimed holder. As for secured creditor, a complete and extensive discovery plan, forensic audit, and depositions must be conducted to make the party advertising the foreclosure sale to be the “secured creditor.” If not, they don’t even get to the starting line and blocks to take off when the gun goes off. If they don’t have the relay baton in their hands at the starting line, they don’t get into the race to later hand off the baton to another partner. This is why chain of title, assignments, possession of notes, indorsement of note are ALL equally important. You need to box them into a corner where their lies are exposed to the world to see.
As to the validity of my argument, let’s examine what the well-educated lender’s lawyer, Mr. Wood, opines on the matter when a reader of his blog questions him about MERS and a servicer being a “secured creditor” that is the only party enabled to, in my opinion and that of Mr. Wood, are the ONLY parties in Georgia to non-judicially foreclose by the Power of Sale in the deed/mortgage.
What do you consider the definition of “secured creditor” is in § 44-14-162.
Is a servicer a secured creditor?
Is M.E.R.S a secured creditor?
Thanks for your insight!
I meant § 44-14-162.2
Hugh Wood said…
If I understand your question, and I may not (seriously), the “lender,” would be the Secured Creditor. Technically (hypertechnically) only the Lender has the right to bring the foreclosure action; it may be the lender by sale, etc. For example, say, Citibank funds at closing; later they sell the loan to Wells Fargo who later sells it to Countrywide and it goes into complete default when Countrywide is the Owner. Assume Aurora Loan Servicing or someone services the loan for Countrywide. Who is the “secured party?” Well Aurora has a power of attorney to bring the action and MERS, if they are in the picture, stand around holding a nominee assignment, but the secured party should be Countywide. Assuming the sale and assignment transfer is complete between Citi, then Wells Fargo then Countrywide, only Countrywide would be authorized to foreclose. Under the hypo you pose, neither Citi, nor WF, nor Aurora nor MERS could list in their own name (and yes my answer is contrary to the industry standard of MERS listing in its own name). One of these days MERS is going to get badly burned by the Georgia Supreme Court or the 11th Cir Court of Appeals for lack of standing. But, hey time and new legislation, may change the landscape on this/these issues.
Here is this attorney for the very lenders he represents agreeing with my position. HE’S RIGHT AND THE INDUSTRY IS WRONG. Why, I ask, do they continue this fraud? For one good reason, I believe… If they were to change the practice now, they would be admitting that ALL OF THE PRIOR FORECLOSURES were unlawful and those foreclosures voidable and title to those foreclosed properties certainly clouded. It’s a risk/benefit analysis conducted as to which is the greater evil, the borrower exerting claims now (few do and few have competent counsel and resources to do) or opening up a payload of title insurance claims and quiet title actions?
However, we’re not done with Attorney Wood’s blog post as yet, since there several relevant comments both he and some “anonymous” commentators have on MERS, standing and that ALL TRANSFERS (assignments) MUST BE IN WRITING (including intervening assignments) and that exemptions to recording only goes to certain lenders, NOT MERS nor SPVs that are not exempt from recording…
I agree with your analysis and I respect your opinion.
I also believe sooner rather than later MERS will be challenged for lack of standing.
In a MERS loan, MERS is specifically named as the “grantee” under the Security Deed. I would think the specifically-denominated “grantee” of a recorded instrument in Georgia most certainly has requisite standing to exercise foreclosure rights under that instrument. The plaintiff’s bar may have drunk the Kool-Aid on this one…
Interesting…I respectfully disagree.
As far as I know MERS is not a lender and has never loaned a penny.
How can MERS allege the note to be in default? The MERS process works rather smoothly due to our non-judicial state.
However once challenged in a courtroom the MERS system can be appropriately dissected.
The Supreme Court of Arkansas just ruled last week on this issue against MERS.
Not sure I’d trust the creator of this blog…it’s not “forelosure”…gotta spell it right first before claiming to know what it is.
Are you familiar with the following code section?
§ 44-14-64. Transfers of deeds to secure debt
(a) All transfers of deeds to secure debt shall be in writing; shall be signed by the grantee or, if the deed has been previously transferred, by the last transferee; and shall be witnessed as required for deeds.
Does this not fly in the face of the MERS Paperless System?
There are exemptions for true creditors and loan servicers, however these would not apply to MERS.
Hugh Wood said…
In Response to Michael: I hear you, but how do you overcome the language in the same statute? “Failure to comply with this provision shall not be a defense to any foreclosure or grounds to set aside any foreclosure of any deed to secure debt.”
And, how do you overcome the exceptions to transfer spelled out at OCGA Sec. 44-14-64(d)(1)-(3)?
§ 44-14-64. Transfers of deeds to secure debt
(g) A transfer of a deed to secure debt shall not be recorded unless it includes the mailing address of the last transferee thereof. Failure to comply with this provision shall not be a defense to any foreclosure or grounds to set aside any foreclosure of any deed to secure debt.
My reading of section G leads me to believe the language “Failure to comply with this provision shall not be a defense to any foreclosure or grounds to set aside any foreclosure of any deed to secure debt” is only applicable to section G.
And, how do you overcome the exceptions to transfer spelled out at OCGA Sec. 44-14-64(d)(1)-(3)?
The relevant section reads ” by a financial institution having deposits insured by an agency of the federal government or a transfer by a lender who regularly purchases or services residential real estate loans aggregating a minimum of $1 million secured by a first deed to secure debt encumbering real estate improved or to be improved by the construction thereon of one to four family dwelling units, where the transferor retains the right to service or supervise the servicing of the deed or interest therein, need not be recorded if:”
So to qualify for the exemption one must satisfy one of the two requirements below.
1. Have deposits insured by a agency of the Federal Government
2. lender who regularly purchases or services residential real estate loans aggregating a minimum of $1 million secured by a first deed to secure debt.
Judicial estoppel would prevent MERS from pleading they are a lender or servicer and MERS certainly does not have deposits insured by a Federal Agency.
Therefore MERS is required to record every transfer on their paperless system that is between entities that do not qualify for the exemptions previously stated.
If my theory is correct then most if not all MERS Security Deeds are lacking an assignment or two that is not recorded in violation of the statute and the last recorded MERS assignment has the legal effect of transferring nothing.
What do you think?
Home 123 funded (2yrs ago)MERS is nominee/mortgagee. later we are paying New Century and then later the service is transfer to America’s servicing. 1 month ago MERS(as assignor) assigns the mortgage to Bank National Trust as Indenture trustee for New Century(bankrupt, subprime).
Who is the party of interest. I am kind of confused.Help
Hugh Wood said…
To Joyful: Good Question. I happen to know from private litigation that New Century has sold/auctioned (whatever) all of its Georgia Properties and those properties are no longer subject to the Stay in Bankruptcy in Delaware. B/c GA does not have a place to challenge the Real Party in Interest, you will either have to file suit first (a very expensive proposition) or suffer the consequenses. Even in the prefiling the parties can’t show they are current. If you go into BK, you may be able to raise the issue in opposition to a Lift the Stay Motion. HCW
I’d like to thank attorney Wood for his candor and honesty in light of his position and representation of many banks who extoll contradictory arguments that fly in the face of the black letter law promulgated by the GA statutes. Perhaps, that is why at the very last paragraph of his legal disclaimer found at http://webcache.googleusercontent.com/search?q=cache:6_xIOayE6_UJ:www.woodandmeredith.com/terms.html+%22Hugh+Wood%22+%22Shapiro+%26+Swertfeger%22&cd=2&hl=en&ct=clnk&gl=us Wood states:
“Wood & Meredith, LLP, Hugh C. Wood, LLC, Hugh C. Wood, Esquire, ceased and terminated any legal affiliation with Shapiro & Swertfeger, Swertfeger & Scott, PC, Swertfeger & Wood, L. Jack Swertfeger, Jr., in any corporate or legal capacity in 2004″
It shows that some lender bar lawyers do find religion, the law, and some ethics along the way!
Pew Mortgage Institute
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