Edward v. Bac Home Loans Servicing, L.P.

16 Citing cases

  1. Smith v. J.P. Morgan Chase Bank

    Civil Action 1:22-cv-05116-SDG (N.D. Ga. Jan. 3, 2023)

    Further, “[u]nder Georgia law, a debtor who executes a security deed and defaults on a loan cannot enjoin foreclosure, or otherwise obtain equitable relief to cancel the deed, unless the debtor has first paid or tendered the amount due on the loan.” Edward v. BAC Home Loans Servicing, L.P., 534 Fed.Appx. 888, 892 (11th Cir. 2013) (citing Taylor, Bean & Whitaker Mortg. Corp. v. Brown, 276 Ga. 848, 849 (2003)); see also Coast, 2013 WL 5945084, at *5 (citations omitted) (“Failure to make the proper loan payments or tender the amount due defeats any claim for wrongful foreclosure.”)

  2. Lee v. Fed. Nat'l Mortg. Ass'n

    No. CV420-258 (S.D. Ga. Aug. 10, 2021)

    To the extent his claims rest on his challenges to the propriety of the assignments, he does not have standing to make those challenges. Edward v. BAC Home Loans Servicing, L.P., 534 Fed.Appx. 888, 891 (11th Cir. 2013). And to the extent his claims rest on Nationstar holding the Security Deed without ownership of the underlying note, those arguments are similarly flawed.

  3. Burgos v. Sand Canyon Corp.

    CASE NO. 4:19-CV-76 (CDL) (M.D. Ga. Oct. 3, 2019)   Cited 1 times

    To the extent that Plaintiff is attempting to challenge Defendant's assignment of the security deed to Wells Fargo, he does not have standing to do so. The assignment was a contract between Defendant and Wells Fargo. If the assignment was flawed, the proper party to bring a claim against Defendant "would be the other party to the assignment," Wells Fargo. Montgomery v. Bank of Am., 740 S.E.2d 434, 437-38 (Ga. Ct. App. 2013); accord Ames v. JP Morgan Chase Bank, N.A., 783 S.E.2d 614, 619-21 (Ga. 2016) (finding that debtors lacked standing to challenge the assignment of a security deed and thus could not pursue wrongful foreclosure proceedings based on an allegedly flawed assignment); see also Edward v. BAC Home Loans Servicing, L.P., 534 F. App'x 888, 891 (11th Cir. 2013) (per curiam) (finding that the district court properly dismissed claims based on the transfer of a security deed because the plaintiffs did not have standing to contest the validity of the transfer). Plaintiff has thus failed to state a claim against Defendant based on the assignment.

  4. West v. Wells Fargo Bank, N.A.

    CIVIL ACTION FILE NO. 1:16-cv-00393-WSD-AJB (N.D. Ga. Jan. 3, 2017)

    A party holding a security deed is not required to produce the borrower-plaintiff's original promissory note prior to foreclosure, and Plaintiff, as a non-party to any assignment of the promissory note and security deed, does not have standing to challenge the validity any assignment. Edward v. BAC Home Loans Servicing, L.P., 534 Fed. Appx. 888, 891 (11th Cir. Aug. 16, 2013); Montgomery v. Bank of Am., 321 Ga. App. 343, 345-46, 740 S.E.2d 434, 438 (2013); LaCosta v. McCalla Raymer, LLC, No. 1:10-cv-1171-RWS, 2011 WL 166902, at *5 (N.D. Ga. Jan. 18, 2011). The Georgia Supreme Court has made clear that "the holder of a deed to secure debt is authorized to exercise the power of sale in accordance with the terms of the deed even if it does not also hold the note or otherwise have any beneficial interest in the debt obligation underlying the deed."

  5. Camacho v. Nationwide Mut. Ins. Co.

    188 F. Supp. 3d 1331 (N.D. Ga. 2016)   Cited 6 times   1 Legal Analyses
    Finding that O.C.G.A. § 9-12-10 is inapplicable when awarding postjudgment interest under 28 U.S.C. § 1961

    However, under Georgia law, "[i]n order to constitute a proper tender, the tender must be certain and unconditional, and be in full payment of the specific debt. [O.C.G.A. § 13–4–24.] A written proposal to pay money, with no offer of the cash, is not a tender." Edward v. BAC Home Loans Servicing, L.P. , 534 Fed.Appx. 888, 892 (11th Cir.2013) (citing Crockett v. Oliver , 218 Ga. 620, 129 S.E.2d 806, 807–08 (1963) ; Angier v. Equitable Bldg. & Loan Assoc. , 109 Ga. 625, 35 S.E. 64 (1900) ); see also Southern General Ins. Co. v. Ross , 227 Ga.App. 191, 489 S.E.2d 53, 56 (1997) ("A tender conditioned on a release of "all claims," which includes claims not included within the obligation at hand, is not effective.") (citation omitted). Alternatively, Nationwide asserts that under its policy interest accrued only up to the date Nationwide paid the $100,000 policy limits on behalf of Mr. Park on February 23, 2011 as partial satisfaction of the judgment and its obligation to pay any additional interest under the policy ceased after that date.

  6. Morris v. Wells Fargo Bank, N.A.

    Case No: 6:15-cv-962-Orl-37TBS (M.D. Fla. Jul. 9, 2015)

    Further, the unverified Complaint is due to be dismissed due to its impermissible shotgun format. See Edward v. BAC Home Loans Servicing, L.P., 534 F. App'x 888, 891-92 (11th Cir. 2013) (affirming dismissal of shotgun wrongful foreclosure complaint); see also Carvel v. Godley, 404 F. App'x 359, 361 (11th Cir. 2010) (affirming dismissal of shotgun complaint); Magluta v. Samples, 256 F.3d 1282, 1285 (11th Cir. 2001) (remanding to district court with instructions to strike shotgun complaint and require the plaintiff to replead). CONCLUSION

  7. Wiley v. U.S. Nat'l Bank Ass'n Trust 2005

    CIVIL ACTION NO. 1:14-CV-01508-RWS (N.D. Ga. Oct. 3, 2014)

    "Under Georgia law, a debtor who executes a security deed and defaults on a loan cannot enjoin foreclosure, or otherwise obtain equitable relief to cancel the deed, unless the debtor has first paid or tendered the amount due on the loan." Edward v. BAC Home Loans Servicing, L.P., 534 F. App'x 888, 892 (11th Cir. 2013) (citing Taylor, Bean & Whitaker Mortg. Corp. v. Brown, 583 S.E.2d 844, 846 (Ga. 2003)). A proper tender of the loan "must be certain and unconditional, and be in full payment of the specific debt." Id.

  8. Sheely v. Bank of Am., N.A.

    36 F. Supp. 3d 1364 (N.D. Ga. 2014)   Cited 14 times
    In Sheely, the plaintiffs similarly alleged that Bank of America told they that they would have to fall behind on their mortgage payments three to six months in order to meet the criteria for an in-house modification, but then after the plaintiffs fell behind and applied for modification, Bank of America continued to request additional documents over several months and never modified the loan, leading to multiple attempted foreclosures.

    And Georgia law is well settled that “a debtor who executed a security deed and defaults on a loan cannot enjoin foreclosure, or otherwise obtain equitable relief to cancel the deed, unless the debtor has first paid or tendered the amount due under the loan.” Edward v. BAC Home Loans Servicing, L.P., 534 Fed.Appx. 888, 892 (11th Cir.2013) (citing Taylor, Bean & Whitaker Mortg. Corp. v. Brown, 276 Ga. 848, 583 S.E.2d 844, 846 (2003) ). Because the Sheelys have not paid the mortgage in full, they are not entitled to an interlocutory injunction.IV. Conclusion

  9. LSREF2 Baron, LLC v. Alexander SRP Apartments, LLC

    17 F. Supp. 3d 1289 (N.D. Ga. 2014)   Cited 5 times

    As already discussed, in Montgomery, the Georgia Court of Appeals held that a wrongful foreclosure plaintiff has no standing to challenge the assignment of loan documents from its lender to a third-party because the plaintiff was not a party to the assignment. Montgomery, 740 S.E.2d at 438 ; accord Edward v. BAC Home Loans Servicing, L.P., 534 Fed.Appx. 888, 890–91 (11th Cir.2013). But there, the debtor-plaintiff challenged the assignment of his loan to the bank as a basis for obtaining affirmative relief in his own wrongful foreclosure action.

  10. Faulconer v. Mortg. Elec. Registration Sys., Inc.

    CIVIL ACTION NO. 5:12-CV-246 (MTT) (M.D. Ga. Feb. 13, 2014)   Cited 2 times

    In Montgomery, the Georgia Court of Appeals explains that an assignment of a security deed is a contract between the assignor and the assignee and that the proper party to bring a claim challenging its validity is the other party to the assignment. 321 Ga. App at 346, 710 S.E.2d at 438; see also Edward v. BAC Home Loans Servicing, L.P., 534 F. App'x 888, 891 (11th Cir. 2013) (applying Montgomery and holding borrowers lacked standing to challenge the transfer of their security deed). The Plaintiff recognizes this authority, but she argues these cases should be overturned because they are inconsistent with the concept of privity of contract.