Editor: David Reiss
Brooklyn Law School

April 16, 2013

Georgia District Court Allows Homeowner Plaintiff to Amend Fraud Claim but Dismisses Wrongful Disclosure Claim

By Abigail Pugliese

In LaCosta v. McCalla Raymer, Civil Action No. 1:10-CV-1171-RWS, 2011 WL 166902, Civil Action (N.D. Ga. January 18, 2011), the Court ruled that Homeowner Plaintiff could amend her fraud claim, but dismissed Plaintiff’s other claims stemming from an alleged modification on her loan and subsequent foreclosure.

Plaintiff executed a loan and note from Home America Mortgage, Inc. in 2008 and granted a security deed to MERS, which granted MERS power of sale and the power to foreclose on the property. Subsequently, MERS assigned the security deed to BAC Home Loans {“BAC”). Plaintiff attempted to arrange a mortgage modification with BAC and represents that BAC agreed to a monthly payment of $837.00 until the modification was finalized. Despite paying $837.00 per month, the loan was declared to be in default. BAC initiated foreclosure and Plaintiff filed claims objecting to the foreclosure. Plaintiff also moved for a temporary restraining order, while Defendant moved to dismiss for failure to sufficiently state a claim.

The District Court denied Plaintiff’s motion for a temporary restraining order since Plaintiff did not show “a substantial likelihood of success on the merits of her wrongful foreclosure claim.” The Court dismissed Plaintiff’s claim for wrongful disclosure, because “Plaintiff unequivocally granted MERS the power to sell the Property if she were not able to comply with the terms of the Note,” and for defective notice of foreclosure sale since Georgia law does not assert that “a secured creditor may not utilize an agent to serve notice on a debtor of the initiation of foreclosure proceedings.” Further, the Court dismissed Plaintiff’s claim for an invalid assignment because Plaintiff cited no relevant Georgia Statute or relevant case law that stated BAC needed to have an ownership interest in the Deed and the Note. Finally, the Court dismissed Plaintiff’s FDCPA Claim because notice of the foreclosure to Plaintiff was proper.

With regard to Plaintiff’s fraud claim “based upon representations supposedly made by Defendant BAC concerning a modification of [Plaintiff’s] mortgage,” the Court gave Plaintiff an opportunity to amend her Complaint since the Complaint currently fails to “provide the requisite level of detail needed to adequately allege fraud.”

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  • tevans evans says:

    I have a letter from bank of america stating that mers is an industry owned company used to bypass land records. all of mers data base is posted by members(banks)not mers employees

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