White-Lett v. NewRez, Inc.

Full title: Shirley WHITE-LETT, Debtor/Appellant, v. NEWREZ, INC., The Bank of New…

Court: United States District Court, N.D. Georgia, Rome Division

Date published: Apr 20, 2024

661 B.R. 63 (N.D. Ga. 2024)

Opinion

CIVIL ACTION FILE NO. 4:22-cv-00082-WMR

2024-04-20

Shirley WHITE-LETT, Debtor/Appellant, v. NEWREZ, INC., The Bank of New York Mellon, Shellpoint Mortgage Servicing, The Bank of New York Mellon Corp., and RRA CP Opportunity Trust 1, Appellees.

Heather L. Fesnak, Pro Hac Vice, Akerman LLP, Tampa, FL, for Appellee NewRez, Inc. Alan Michael Hurst, Idaho Office of the Attorney General, Boise, ID, Jeremy Patrick Burnette, Akerman LLP, Atlanta, GA, for Appellee The Bank of New York Mellon. Chandler Thompson, Akerman LLP, Salt Lake City, UT, for Appellee Shellpoint Mortgage Servicing. William Oxford Tate, McCalla Raymer Liebert Pierce LLC, Roswell, GA, for Appellee RRA CP Opportunity Trust 1.

WILLIAM M. RAY, II UNITED STATES DISTRICT JUDGE

Heather L. Fesnak, Pro Hac Vice, Akerman LLP, Tampa, FL, for Appellee NewRez, Inc.

Alan Michael Hurst, Idaho Office of the Attorney General, Boise, ID, Jeremy Patrick Burnette, Akerman LLP, Atlanta, GA, for Appellee The Bank of New York Mellon.

Chandler Thompson, Akerman LLP, Salt Lake City, UT, for Appellee Shellpoint Mortgage Servicing.

William Oxford Tate, McCalla Raymer Liebert Pierce LLC, Roswell, GA, for Appellee RRA CP Opportunity Trust 1.

ORDER¹

1 This Order also resolves Appellant's appeal in case number 1:23-cv-02327-WMR and has been filed contemporaneously therein.

WILLIAM M. RAY, II UNITED STATES DISTRICT JUDGE.

In 2005, Appellant Shirley White-Lett executed an adjustable rate note in the amount of $636,000 to refinance the mortgage on her home. She also executed a note for a $79,500 line of credit. Both loans were secured by deeds on Appellant's home. Appellant later filed for Chapter 7 bankruptcy in 2010, and shortly after the bankruptcy case closed in 2012, Appellant stopped making mortgage payments on her home. She has now lived there for over 11 years without making a mortgage payment. How has she managed to avoid foreclosure for more than a decade? By suing any entity that she imagines may have been involved with her mortgage in any way, at any time. This Order resolves just one of Appellant's many disputes.

I. Background

The Court's Order addresses Appellant Shirley White-Lett's ("Appellant") pending appeals from the Bankruptcy Court's orders in adversary proceeding number 20-06278-bem (the "Adversary Proceeding"). Appellant has two appeals pending in this Court from the Adversary Proceeding, which are represented in this Court by case numbers 4:22-cv-00082-WMR ("First Appeal") and 1:23-cv-02327-WMR ("Second Appeal"). This Order resolves all claims in Appellant's two appeals from the Adversary Proceeding.

The Adversary Proceeding relates to Appellant's chapter 7 bankruptcy case, filed in Bankruptcy Court as case number 10-61451-bem (the "Bankruptcy Case"). For the sake of clarity, the Court will discuss the relevant background of the Bankruptcy Case and the Adversary Proceeding. However, as further discussed in the Analysis section, infra, this Court's appellate jurisdiction is limited to review of only those orders from the Adversary Proceeding that Appellant properly appealed to this Court. For ease of reference, the Court has taken judicial notice of the entire records in both the Bankruptcy Case and the Adversary Proceeding, as it may with the records of inferior courts. See U.S. v. Rey, 811 F.2d 1453, 1457 n.5 (11th Cir. 1987). ("A court may take judicial notice of its own records and the records of inferior courts."). Accordingly, the Court cites directly to documents in the Bankruptcy Case and the Adversary Proceeding rather than the records provided to this Court for purposes of appeal.²

2 The Court cites to documents in the Bankruptcy Case as: [BC Doc. Y at Z], where Y is the number corresponding to the docket entry for a particular document and Z is the page number of the document. The Court cites to documents in the Adversary Proceeding as: [AP Doc. Y at Z]. The Court cites to documents in the First Appeal as: [FA Doc. Y at Z]. The Court cites to documents in the Second Appeal as: [SA Doc. Y at Z].

A. The Origins of Appellant's Appeals

In 2005, Appellant signed an adjustable rate note in exchange for a $636,000 loan from Aegis Wholesale Corporation ("AWC"). [AP Doc. 9 at 179]. She also signed another note in exchange for a $79,500 loan from AWC. [Id. at 36]. These notes were secured by two security deeds that encumbered Appellant's real property, located at 456 North Saint Mary's Lane in Marietta, Georgia (the "Residential Property"). [Id. at 68] (the "Senior Security Deed"); [Id. at 195] (the "Junior Security Deed"). Mortgage Electronic Registration Systems, Inc. ("MERS"), acting as a nominee for AWC's successors and assigns, was the named beneficiary on both security deeds. [Id.].

In 2010, Appellant initiated the Bankruptcy Case by filing a voluntary petition for Chapter 7 bankruptcy. [BC Doc. 1]. Appellant was granted a discharge in 2011, and the Bankruptcy Case was closed in 2012. [BC Doc. 23; BC Doc. 26].

In 2013, after the Bankruptcy Case closed, MERS assigned the Senior Security Deed to The Bank of New York Mellon ("BoNYM"). [AP Doc. 9 at 89]. Later, in 2017, MERS assigned the Junior Security Deed to RRA CP Opportunity Trust 1 ("RRA"). [Id. at 206].

As it relates to MERS's assignment of the Senior Security Deed to BoNYM, Appellant first contested that assignment in Cobb County Superior Court in 2013 (the "Cobb County Action"). In the Cobb County Action, Appellant asserted claims for breach of contract, wrongful foreclosure, negligence, fraud, civil conspiracy, violation of the Georgia Residential Mortgage Act, violation of the Georgia Fair Business Practices Act, quiet title, slander of title, and declaratory judgment. [AP Doc. 157-2 at 2]. Appellant specifically alleged: (1) that MERS was acting solely as a nominee for AWC and thus had no authority to assign the Senior Security Deed on its own; (2) that AWC's 2007 bankruptcy and dissolution terminated MERS's power thereafter to act on behalf of AWC; (3) that AWC never transferred Appellant's adjustable rate note to BoNYM; (4) that BoNYM's copy of the adjustable rate note filed in the Bankruptcy Case in 2010 was not validly indorsed; and (5) that BoNYM's copy of the adjustable rate note filed in the Bankruptcy Case in 2010 was forged. [AP Doc. 72 at 27-36; AP Doc. 157-2 at 15 n.8].

The Cobb County Superior Court dismissed all of Appellant's claims, holding that Appellant's attempts to challenge the validity of the subject debt were barred by the doctrine of res judicata because Appellant obtained a bankruptcy discharge of the debt. [AP Doc. 9 at 190]. The court also found that BoNYM held the Senior Security Deed and, because she was a borrower, Appellant lacked standing to

challenge MERS's assignment of the Senior Security Deed. [Id. at 190-91]. Finally, the court held that the party that holds a security deed—here, BoNYM—may foreclose regardless of whether that party also holds the promissory note. [Id. at 190]. The court's dismissal order was affirmed by the Georgia Court of Appeals on November 10, 2015. [AP Doc. 102-2 at 2].

In March of 2020, the Bankruptcy Case was reopened upon Appellant's request so that she could file a separate adversary proceeding. See [BC Doc. 36]. After the case was reopened, a trustee was reappointed to determine whether any assets were available for administration, a claims bar date was set, and RRA and BoNYM filed proofs of claim related to the Junior and Senior Security Deeds. See [BC Doc. 41; BC Doc. 61; AP Doc. 67 at 4; AP Doc. 9 at 3]. Plaintiff then initiated the Adversary Proceeding, primarily "as a defense and objection to the Proof of Claim filed by BoNYM." [AP Doc. 9 at 37].

B. Background of the Adversary Proceeding (20-06278-bem)

In December 2020, Appellant commenced the Adversary Proceeding by filing a complaint against Bank of New York Mellon, Corp. ("BoNYMC"), Bank of America, N.A. ("BoA"), Federal National Mortgage Association a/k/a Fannie Mae ("Fannie Mae"), Federal Home Loan Mortgage Corp. a/k/a Freddie Mac ("Freddie Mac"), MERS, and RRA. [AP Doc. 1]. Appellant later amended her complaint to add as defendants BoNYM and Merscorp Holdings, Inc. ("MERSCorp"). [AP Doc. 9].

While Appellant's complaint in the Adversary Proceeding contained many allegations, her complaint focused primarily on BoNYM's proof of claim related to the Senior Security Deed. See [AP Doc. 9]. With regard to BoNYM specifically, Appellant sought (1) damages for alleged discharge injunction violations by one of BoNYM's former servicers; (2) to disallow BoNYM's proof of claim; (3) avoidance of BoNYM's purported lien on Appellant's Residential Property; (4) a declaration that BoNYM could not enforce the Senior Security Deed because it "failed to establish a complete chain of title and that the note at issue herein is unsecured;" and (5) an injunction prohibiting BoNYM from foreclosing on the Senior Security Deed. [Id. at 35].

In addition to her claims against BoNYM, Appellant brought declaratory judgment claims against Fannie Mae, Freddie Mac, and BoA, seeking declarations that each of those parties could not enforce the Senior Security Deed. [Id. at 35]. Appellant also brought a declaratory judgment claim against MERS, seeking a declaration that MERS had no rights or interests in the Senior Security Deed and did not validly assign any rights in the Senior Security Deed to any other parties. [Id. at 35-36]. Finally, Appellant brought a declaratory judgment claim against RRA, alleging that RRA had no valid and enforceable interest in the Junior Security Deed because it received an invalid and void assignment from MERS. [Id. at 36-37].

In short order, the defendants began filing motions to dismiss Appellant's claims against them in the Adversary Proceeding. The following defendants, whose dismissals were not immediately appealed to this Court, were dismissed as follows:

• RRA was dismissed after the Bankruptcy Judge recommended that RRA's motion to dismiss be granted, finding that MERS's assignment of the Junior Security Deed to RRA was valid and that Appellant lacked standing to challenge that assignment. [AP Doc. 67 at 9-19]. This Court adopted the Bankruptcy Judge's recommendation in case number 1:21-cv-02471-WMR, thereby dismissing RRA from the Adversary Proceeding. See [Doc. 2], White-Lett v. The Bank of New York Mellon, Corp. et al, No. 1:21-cv-02471-WMR (N.D. Ga. filed June 17, 2021).

• Fannie Mae was dismissed from the Adversary Proceeding after its motion to dismiss was granted. See [AP Doc. 14; AP Doc. 79]. Specifically, the Bankruptcy Court held that Appellant lacked standing to seek declaratory relief against Fannie Mae under both the Constitution and the Bankruptcy Code. [AP Doc. 79 at 14].

• MERS and MERSCorp were dismissed from the Adversary Proceeding after their motion to dismiss was granted. See [AP Doc. 42; AP Doc. 121]. Specifically, the Bankruptcy Court held that Appellant had not presented justiciable claims against MERS and MERSCorp because neither of those parties sought to enforce the Senior or Junior Security Deeds. [AP Doc. 121 at 12-15]. The Bankruptcy Court also found that even if Appellant had alleged a justiciable controversy, she would not have standing to seek declaratory relief against MERS and MERSCorp because she had not alleged facts to demonstrate that they were threatening future injury. [Id. at 13-14].

• BoA was dismissed from the Adversary Proceeding with prejudice after the parties filed a stipulation of dismissal and the Bankruptcy Court entered an order approving the stipulation. See [AP Doc. 244; AP Doc. 245].³

3 The stipulation of dismissal and subsequent order also dismissed with prejudice the following claims against BoNYMC and BoNYM: "Any claim that [Appellant] has or may have against [BoNYMC or BoNYM] in connection with her Bankruptcy Case based on any alleged violation of the bankruptcy stay (11 U.S.C. § 362) or alleged violation of the discharge order/discharge injunction (11 U.S.C. § 524) that occurred prior to and including November 16, 2013[.]" [AP Doc. 245 at 2]. However, these were not the only claims that Appellant asserted against BoNYMC and BoNYM.

Orders from the Adversary Proceeding that relate to the dismissal of the two remaining defendants—BoNYM and Freddie Mac—produced final judgments from which Appellant initiated the First and Second Appeals.

C. Issues Related to BoNYM in the Adversary Proceeding

As it relates to BoNYM, Appellant filed two relevant motions in the Adversary Proceeding on March 18, 2021: a motion for partial summary judgment against BoNYM and a "Motion to Strike the Proof of Claim of Defendant Bank of New York Mellon" (the "Motion to Strike"). See [AP Doc. 71; AP Doc. 72].

The Motion to Strike requested that BoNYM's proof of claim be stricken, that BoNYM's defenses to Appellant's complaint be stricken, and that an allegedly forged allonge related to Appellant's note be excluded from evidence. See generally [AP Doc. 72]. After holding a status conference with the parties, the Bankruptcy Judge entered an order striking the Motion to Strike. See [AP Doc. 130]. The Bankruptcy Judge reasoned that, because the Motion to Strike sought relief that was duplicative of the relief sought in the Adversary Proceeding complaint, it was improper. [Id. at 4]. The Bankruptcy Judge further held that she did not find any basis to strike BoNYM's defenses and, if Appellant's request arose under Federal Rule of Civil Procedure 12(f)(2), it was untimely. [Id. at 4-5]. With regard to Appellant's motion for partial summary, Appellant sought judgment on her claims against BoNYM for determination of the validity of the Senior Security Deed and for declaratory relief. [AP Doc. 71]. BoNYM responded by filing its own motion to dismiss and motion for judgment on the pleadings on May 10, 2021. See [AP Doc. 102]. After considering the motions, the Bankruptcy Court granted BoNYM's motion to dismiss, denied Appellant's motion for partial summary judgment, and denied BoNYM's motion for judgment on the pleadings as to Appellant's claim for violation of the discharge injunction. See [AP Doc. 148].⁴ The Bankruptcy Judge held, among other things, that Appellant lacked standing to object to BoNYM's proof of claim, to obtain the declaratory and injunctive relief that she sought, and to avoid BoNYM's lien. [Id. at 14-15]. The order also held that Appellant was barred from challenging MERS's assignment of the Senior Security Deed to BoNYM based on Georgia law and the res judicata effect of the Cobb County Action. [Id. at 26-27].

4 Appellant's claims related to the violation of the discharge injunction were later dismissed pursuant to the stipulation of dismissal discussed supra, footnote 3.

After the Bankruptcy Court issued its order dismissing Appellant's claims related to BoNYM's proof of claim, Appellant moved the Bankruptcy Court to reconsider its order. See [AP Doc. 154]. Appellant also filed a second revised motion for leave to amend her complaint, and because that motion contained argument related to the Bankruptcy Court's order denying the Motion to Strike, the Bankruptcy Judge construed it as a motion to reconsider the order denying the Motion to Strike. See [AP Doc. 153]. The Bankruptcy Court entered orders denying each of these motions. See [AP Doc. 163; AP Doc. 164].

Appellant also filed a motion for Rule 54(b) certification, which requested that the Bankruptcy Court make immediately appealable the orders related to Appellant's claims challenging BoNYM's proof of claim. See [AP Doc. 152]. In support of her Rule 54(b) motion, Appellant argued that the Adversary Proceeding could be separated into two "completely separate and independent" issue areas. [AP Doc. 152 at 1]. Appellant argued that the first issue area related to Appellant's "claims for violations of the discharge injunction order against [BoA] and BoNYM[.]" [Id.]. Apart from those claims, Appellant contended that "[a]ll other claims are concerned uniquely with [Appellant's] objections to the proof of claim of BoNYM[.]" [Id.]. Appellant's motion sought certification of orders in this latter group of claims—those related exclusively to Appellant's objections to BoNYM's proof of claim. The Bankruptcy Judge granted Appellant's Rule 54(b) motion and specifically designated two orders as final and subject to immediate appeal: Adversary Proceeding Document 163 (order denying reconsideration of order dismissing Appellant's challenges to BoNYM's proof of claim) and Adversary Proceeding Document 164 (order denying reconsideration of order striking the Motion to Strike). [AP Doc. 165 at 2]. Appellant filed the First Appeal after the Bankruptcy Court granted her Rule 54(b) certification motion. See [AP Doc. 171].

D. Issues Related to Freddie Mac in the Adversary Proceeding

As it relates to Freddie Mac and the Second Appeal, Appellant served process on Freddie Mac in the Adversary Proceeding on December 17, 2020. [AP Doc. 5]. However, Freddie Mac never appeared in the Adversary Proceeding, and Appellant never acted on Freddie Mac's default or

otherwise pursued her claim against it. See generally Adversary Proceeding Dkt. Because Freddie Mac was the last remaining defendant in the Adversary Proceeding, MERS—wishing to make its own judgment final—moved the Bankruptcy Court to dismiss Appellant's claim against Freddie Mac. [AP Doc. 249]. The Bankruptcy Judge granted MERS's motion and dismissed Appellant's declaratory judgment claim against Freddie Mac, reasoning that Appellant lacked standing to bring such a claim because she had failed to demonstrate that an actual or imminent injury to her was fairly traceable to Freddie Mac. [AP Doc. 252 at 6-7]. Appellant initiated the Second Appeal after the Bankruptcy Court entered its order dismissing Freddie Mac. See [AP Doc. 254].

E. The First Appeal (4:22-cv-00082-WMR)

Appellant filed her first notice of appeal in the Adversary Proceeding on April 1, 2022, which was within 14 days of the Bankruptcy Judge's order granting Appellant's Rule 54(b) certification motion. See [AP Doc. 171]; Fed. R. Bankr. P. 8002(a)(1) ("[A] notice of appeal must be filed with the bankruptcy clerk within 14 days after entry of the judgment, order, or decree being appealed."). In her notice of appeal, Appellant described the judgment or order appealed from as follows: "Judgment dismissing objections to proof of claim, denial of motion to amend, denial of motion for reconsideration and any other order." [FA Doc. 1-2 at 1]. Appellant also stated, however, that the order that she was appealing from was entered on November 29, 2021, which was the date that the Bankruptcy Court issued its order that dismissed Appellant's challenges to BoNYM's proof of claim. [FA Doc. 1-2 at 1; AP Doc. 148]. Appellant listed the following entities as parties to the First Appeal: Fannie Mae; MERS; MERSCorp; Shellpoint Mortgage Servicing; NewRez, LLC; BoNYM; BoNYMC; BoA; and RRA. [Id. at 1-3].

Curiously, even though the Bankruptcy Judge certified only those orders that Appellant argued in her Rule 54(b) motion were "concerned uniquely with [Appellant's] objections to the proof of claim of BoNYM," Appellant raised many other issues in her appellant brief. [AP. Doc. 152 at 1]; see [FA Doc. 7]. Appellant specifically identified four issues presented in the First Appeal:

(1) Whether the Court erred in dismissing Appellants [sic] Rule 7001(9) request for declaratory judgment against Fannie Mae and in denying her motions for judgment as moot[;]

(2) Whether the Court erred in denying as moot, Appellant's stand-alone motions for declaratory summary judgment against MERS and in dismissing her claims against MERS[;]

(3) Whether, relying om [sic] Appellant's asserted lack of standing, the Court erred in dismissing her objections and claims as to Bank of New York Mellon and denying her motion for summary judgment as moot[;]

(4) Whether the Court erred in its sua sponte striking of Appellant's motion [to strike BoNYM's proof of claim] and treating it as a motion to amend and in failing to make sufficient findings of fact and conclusions of law[.]

[FA Doc. 7 at 9-10].

Because Appellant attempted to challenge orders related to MERS, MERSCorp, BoA, and Fannie Mae that were beyond the scope of the Bankruptcy Judge's Rule 54(b) certification order,

those parties filed motions to dismiss. See [FA Doc. 8] (MERS and MERSCorp); [FA Doc. 13] (BoA); [FA Doc. 16] (Fannie Mae). This Court granted each of those motions in its Order of February 17, 2023, dismissing Appellees MERSCorp, MERS, BoA, and Fannie Mae. [FA Doc. 27]. In 13 so ruling, this Court rejected Appellant's claim that the scope of Appellant's appeal is controlled by her notice of appeal rather than by the Bankruptcy Court's Rule 54(b) certification. [Id. at 5]. Currently, the remaining Appellees in the First Appeal are: Shellpoint Mortgage Servicing; NewRez, LLC; BoNYM; BoNYMC; and RRA.

F. The Second Appeal (1:23-cv-02327-WMR)

Appellant filed her second notice of appeal in the Adversary Proceeding on May 23, 2023. See [AP Doc. 254]. In her notice of appeal, Appellant described the judgment or order appealed from as follows: "Final judgment and Order dismissing claims against Freddie Mac and all orders." [SA Doc. 1-2 at 1]. Despite Appellant's contention that she is appealing "all orders," she listed only one date—May 10, 2023—when identifying the date that the appealed order was entered. [Id.]. May 10, 2023, was the date that the Bankruptcy Judge entered the order that granted MERS's motion to dismiss Appellant's claims against Freddie Mac because Appellant lacked standing to pursue those claims. See [AP Doc. 252]. Appellant listed the following entities as parties to the Second Appeal: MERS; MERSCorp; BoNYM; BoNYMC; Fannie Mae; BoA; and RRA. [SA Doc. 1-2 at 1-2].

As in the First Appeal, Appellant raises issues related to many parties in the Second Appeal. Sea generally [SA Doc. 8]. However, Appellant identifies only two issues presented in the Second Appeal:

(1) Did the Bankruptcy Court err in denying Appellant's motion for declaratory/summary judgment against the MERS Appellees and dismissing her claims against them?

(2) Was dismissal of declaratory judgment and denial of summary judgment to Appellant as to Fannie Mae error given that Fannie Mae admitted that it never purchased or owned any interest in Appellant's loan in connection to its purchase of the CWALT trust pool and later issuance of certificates against that pool?

[Id. at 26].

II. Legal Standard

This Court reviews the legal conclusions of the Bankruptcy Court de novo and its findings of fact for clear error. In re Am.-CV Station Grp., Inc., 56 F.4th 1302, 1308 (11th Cir. 2023). A finding of fact is clearly erroneous when, "although there is evidence to support it, the reviewing court on the entire record is left with a definite and firm conviction that a mistake has been committed." Crawford v. Western Elec. Co., Inc., 745 F.2d 1373, 1378 (11th Cir. 1984) (quoting U.S. v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). A bankruptcy court's evidentiary and discretionary rulings are reviewed only for an abuse of discretion. See In re Intern. Mgmt. Assocs., LLC, 781 F.3d 1262, 1265 (11th Cir. 2015). A court abuses its discretion "if it applies an incorrect legal standard, follows improper procedures in making the determination," makes findings of fact that are clearly erroneous, or applies the law in an unreasonable or incorrect manner. Collegiate Licensing Co. v. Am. Cas. Co. of Reading, Pa., 713 F.3d 71, 77 (11th Cir. 2013). III. Analysis

A. The First Appeal (4:22-cv-00082-WMR)

I. Scope of First Appeal

Before addressing the issues in Appellant's First Appeal, the Court must first clarify the proper scope of the appeal. Setting aside exceptions that are not relevant here, this Court has appellate jurisdiction to hear appeals "from final judgments, orders, and decrees" of the Bankruptcy Court. 28 U.S.C. § 158(a)(1). One way an order may be made final is if the Bankruptcy Judge certifies the order as final pursuant to Federal Rule of Civil Procedure 54(b), which is made applicable in adversary proceedings by Federal Rule of Bankruptcy Procedure 7054(a). Rule 54(b) provides in relevant part that, "[w]hen an action presents more than one claim for relief ... or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay."

The Court pauses here to note that the First Appeal is taken from orders that were certified as final by the Bankruptcy Judge; specifically, Adversary Proceeding Document 163 (order denying reconsideration of order dismissing Appellant's challenges to BoNYM's proof of claim) and Adversary Proceeding Document 164 (order denying reconsideration of order striking the Motion to Strike). [AP Doc. 165 at 2]. Appellant's notice of appeal in the First Appeal also indicates that she is appealing from Adversary Proceeding Document 148, which was the order that dismissed Appellant's challenges to BoNYM's proof of claim and which the Bankruptcy Judge declined to reconsider in Adversary Proceeding Document 163. [FA Doc. 1 at 1; FA Doc. 1-2 at 1]. Although the Bankruptcy Judge did not specifically identify Adversary Proceeding Document 148 as a final order for purposes of appeal, an appeal from a final judgment "draws in question all prior non-final orders and rulings which produced the judgment." Barfield v. Brierton, 883 F.2d 923, 930-31 (11th Cir. 1989).

Here, Adversary Proceeding Document 148 (order dismissing Appellant's challenges to BoNYM's proof of claim) was a non-final order which ultimately produced the judgment that was certified as final, in Adversary Proceeding Document 163 (order denying reconsideration of order dismissing Appellant's challenges to BoNYM's proof of claim). Similarly, Adversary Proceeding Document 130 (order striking the Motion to Strike) was a non-final order which ultimately produced the judgment that was certified as final in Adversary Proceeding Document 164 (order denying reconsideration of order striking the Motion to. Strike). Thus, the issues decided in Adversary Proceeding Documents 130, 148, 163, and 164 are proper subjects of the First Appeal.

Aside from the aforementioned orders, the Court underscores that its scope of review in the First Appeal is limited to only those "prior non-final orders and rulings which produced the judgment" that was certified by the Bankruptcy Judge. Barfield, 883 F.2d at 930-31. Although the Court will not endeavor to list all the non-final orders and rulings in the Adversary Proceeding that produced the relevant judgment, the Court's scope of review in the First Appeal is necessarily limited to those orders and rulings that were "concerned uniquely with [Appellant's] objections to the proof of claim of BoNYM" because, as Appellant conceded, those were the only issues decided in Adversary Proceeding Documents 163 and 164. [AP

Doc. 152 at 1].⁵ Consequently, orders that were not related to Appellant's objections to BoNYM's proof of claim remained interlocutory when Appellant filed her first notice of appeal and cannot be reviewed in the First Appeal. See Matter of Wood and Locker, Inc., 868 F.2d 139, 146 (5th Cir. 1989) ("[B]ecause the bankruptcy court's grant of summary judgment did not adjudicate all of the claims or the rights and liabilities of all of the parties in the adversary proceeding below, the parties' failure to obtain Rule 54(b) certification left the order interlocutory in nature.").

5 Indeed, this Court has already held that "the bankruptcy court's dismissal orders in favor of MERSC[orp], MERS, and [Fannie Mae] were decided on independent grounds and did not produce or facilitate the orders pertaining to [Appellant]'s claims against BoNYM that were certified as final judgments by the bankruptcy court pursuant to Rule 54(b)." [FA Doc. 27 at 7].

Accordingly, the Court omits discussion of issues that are beyond the scope of the Court's review in the First Appeal. These issues include: Appellant's objection that a case or controversy existed between her and Fannie Mae [FA Doc. 7 at 36-41]; Appellant's objection that the Bankruptcy Court erred in dismissing her declaratory judgment claim against Fannie Mae [Id. at 41-46]; Appellant's objection that the Bankruptcy Court erred in dismissing her claims against MERS [Id. at 46-52]; Appellant's objections to the validity of MERS's assignments [Id. at 52-55]; and Appellant's res judicata arguments related to Fannie Mae, Freddie Mac, RRA, AWC, and MERS [Id. at 65].

The Court further finds, as argued in its appellee brief, that RRA should be dismissed from the First Appeal because Appellant's claims related to RRA are beyond the scope of the Court's review in the First Appeal. See [FA Doc. 40 at 12]. The Court now proceeds to review those issues in the First Appeal that are "concerned uniquely with [Appellant's] objections to the proof of claim of BoNYM." [AP Doc. 152 at 1].

II. Mootness

BoNYM first argues that Appellant's challenges to its proof of claim are now moot. [FA Doc. 32 at 25-30]. BoNYM notes that, while the First Appeal was already pending, the chapter 7 trustee filed a "Notice of Proposed Abandonment of Property" in the Bankruptcy Case. [FA Doc. 32 at 23]; see [BC Doc. 96]. According to the notice, the trustee determined that the last known property in the bankruptcy estate, which is Appellant's interest in the sale of a business she once owned, "is burdensome and of little or no value to the estate." [Id. at 1]. At a hearing, the trustee testified that he "[did] not believe that there can be a viable economic recovery after the cost of litigation in this claim" and that the claim "should be abandoned... so that the creditors know there are no assets and the Trustee has no further duty to investigate or administer that potential asset[.]" [BC Doc. 118 at 4].

However, Appellant objected to the abandonment in the Bankruptcy Case, arguing that the First Appeal divested the Bankruptcy Court of jurisdiction over the trustee's proposed abandonment, and the Bankruptcy Judge stayed consideration of the abandonment issue until after the First Appeal is decided. [BC Doc. 100 at 12-13; BC Doc. 106]. Although the Bankruptcy Judge has yet to decide the abandonment issue, BoNYM relies on the trustee's intention to abandon the last of the estate's assets to argue that Appellant's appeal is now moot as to BoNYM's proof of claim because BoNYM will not receive a distribution from the bankruptcy estate even if its proof of claim is valid. [FA

Doc. 32 at 25].⁶ In her reply brief, Appellant contends that BoNYM's mootness argument is meritless because the relevant estate asset in this case is Appellant's Residential Property—which the trustee abandoned to her in 2012—rather than the assets that may exist from the sale of Appellant's interest in a company. [FA Doc. 42 at 8-11].

6 If this Court does not find that Appellant's First Appeal is moot, BoNYM asks the Court to retain jurisdiction over the case while remanding to the Bankruptcy Court for the limited purpose of deciding the trustee's motion to abandon the estate's last property. [FA Doc. 32 at 57].

It is true that "[i]f events that occur subsequent to the filing of a lawsuit or an appeal deprive the court of the ability to give the plaintiff or appellant meaningful relief, then the case is moot and must be dismissed." Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir. 2001). However, contrary to BoNYM's contention, no event has occurred since the filing of the First Appeal that has deprived this Court of its ability to give Appellant meaningful relief. While the trustee proposed to abandon the last known property in the bankruptcy estate, the Bankruptcy Judge has not issued a decision on that proposal. See [BC Doc. 106]. Moreover, the Court declines to invoke its authority under 28 U.S.C. § 2106 to remand this case for the purpose of deciding the abandonment issue when the First Appeal is already ripe for determination. Thus, the Court will dispose of First Appeal on the merits.

III. Appellant's Standing to Appeal

BoNYM next argues that Appellant does not have standing to appeal the Bankruptcy Court's orders that dismissed her objections to BoNYM's proof of claim. [FA Doc. 32 at 25, 31-34]. BoNYM highlights the Eleventh Circuit's distinction in bankruptcy cases between a "party in interest" and a "person aggrieved"—while the former may file motions in Bankruptcy Court, only the latter may appeal the Bankruptcy Court's order. See Westwood Cmty. Two Assoc. v. Barbee (In re Westwood Cmty. Two Assoc.), 293 F.3d 1332, 1337 (11th Cir. 2002). BoNYM argues that even if Appellant were a party in interest, she is not a person aggrieved because the proof of claim is a demand against the bankruptcy estate's assets rather than Appellant's assets. Thus, BoNYM argues, Appellant does not have standing to appeal the Bankruptcy Court's dismissal of her objections to. BoNYM's proof of claim. [FA Doc. 32 at 25, 31-34]. Appellant does not specifically address this argument in her reply brief, but she repeatedly argues that she had standing as a "party in interest" in the Adversary Proceeding and that she has a stake in the outcome of BoNYM's proof of claim because she claims an interest in the Residential Property. See [FA Doc. 42 at 11-14].

"Generally, only the bankruptcy trustee may appeal an order from a bankruptcy court." In re Westwood Cmty. Two Assoc., 293 F.3d 1332, 1334 (11th Cir. 2002). An exception to this rule, however, is that a "a person aggrieved has standing to appeal a bankruptcy court's order." Id. at 1335. A "person aggrieved" is someone who is "directly and adversely affected pecuniarily by the order." Id. (quoting In re Troutman Enter., Inc., 286 F.3d 359, 364 (6th Cir. 2002)). Stated differently, the individual must have a "financial stake in the order being appealed," which is satisfied if the order "diminishes their property, increases their burdens or impairs their rights." In re Westwood, 293 F.3d at 1335 (quoting In re Troutman, 286 F.3d at 364)). Thus, even if an individual has the right to be heard in an adversary proceeding

as a party in interest, that same individual does not have standing to appeal an order unless she is a person aggrieved. See In re Westwood, 293 F.3d at 1336-37 (explaining the distinction between a party in interest and a person aggrieved).

Here, the Court agrees with BoNYM that Appellant does not have standing to appeal the Bankruptcy Judge's orders related to BoNYM's proof of claim because Appellant is not a person aggrieved in relation to those orders. BoNYM's proof of claim is a demand for payment out of the bankruptcy estate, not a demand for payment from Appellant's assets. Accordingly, Appellant is not a person aggrieved because she "has no direct financial stake in the resolution of ... claims that belong[] to the bankruptcy estate...." In re MacNeal, 308 F. App'x 311, 816 (11th Cir. 2009). This is true regardless of whether both Appellant and BoNYM have some interest in the Residential Property because, although BoNYM's proof of claim derives from an asserted interest in the Residential Property, the proof of claim is a demand for payment out of the bankruptcy estate. And, unless a surplus would be returned to Appellant after distribution,⁷ she "does not have a pecuniary interest in the distribution of the assets of the estate." Kieffer v. Riske (In re Kieffer-Mickes Inc.), 226 B.R. 204, 208-09 (8th Cir. BAP 1998). Although this holding alone is sufficient to resolve the First Appeal as it relates to Appellant's objection to BoNYM's proof of claim, the Court will nevertheless discuss Appellant's remaining contentions of error.

7 As discussed below, the Court does not find that there is a reasonable probability of a surplus in this case.

IV. Appellant's Standing in the Bankruptcy Court

The Bankruptcy Judge found that Appellant lacked standing to object to BoNYM's proof of claim because she lacked a pecuniary interest in the distributions, if any, from the bankruptcy estate. [AP Doc. 148 at 15-18]. The Bankruptcy Judge further found that Appellant lacked prudential standing to obtain a declaration that BoNYM is not entitled to enforce the Senior Security Deed and to obtain an injunction against foreclosure because she sought to challenge a post-petition assignment of the Senior Security Deed, which is not actionable under 11 U.S.C. § 544. [Id. at 18-21]. Additionally, the Bankruptcy Judge found that Appellant lacked standing to pursue the aforementioned declaratory and injunctive relief because, under Georgia law, a borrower lacks the power to challenge the assignment of their security deeds. [Id. at 22-28],

i. STANDING TO OBJECT TO BoNYM's PROOF OF CLAIM

As it specifically relates to Appellant's standing to object to BoNYM's proof of claim, Appellant advances several arguments to counter the Bankruptcy Judge's finding that she lacked standing. See [FA Doc. 7 at 27-36, 56-57]. Appellant first argues that the Bankruptcy Court erred in relying on the trustee's estimate that the bankruptcy estate was worth $80,000 when concluding that Appellant lacked a pecuniary interest in unadministered estate assets. [Id. at 27-29]. Appellant contends that the trustee's estimate—which was made more than eight months after Appellant filed her complaint in the Adversary Proceeding—could not be relied upon because standing is determined at the time the complaint is filed. [Id. at 28]. Appellant further argues that, when determining whether there would be a surplus left over from the bankruptcy estate, the Bankruptcy

Judge should have assumed that Appellant's challenges to BoNYM's and RRA's proofs of claim would have been successful. [Id. at 29-30]. Next, Appellant claims that she had standing because the trustee abandoned the Residential Property when the Bankruptcy Case first closed, and she also claims that, because she is a debtor, she had standing as a "party in interest." [Id. at 30-36]. Finally, Appellant contends in her reply brief that, because she will have assets sufficient to pay all claims with a surplus remaining after taking into account her equity in the Residential Property and an asserted homestead exemption, she has a pecuniary interest for standing purposes. [FA Doc. 42 at 11-18],

After reviewing the Bankruptcy Judge's legal analysis do novo, the Court agrees that Appellant lacked standing to object to BoNYM's proof of claim, but the Court finds that Appellant lacked Article III standing rather than statutory standing as the Bankruptcy Judge concluded. For a party to have statutory standing to file objections in a bankruptcy case, she must be a "party in interest." See In re Basson, 713 F. App'x 987, 987-88 (11th Cir. 2018). Most courts, including lower courts in this Circuit, have held that a debtor is not a party in interest unless she can prove that there is a "reasonable possibility ... that the result of a claim objection will be a surplus returned to the debtor [such that] the debtor may have a pecuniary interest sufficient to allow it to participate in a claim objection." In re McKeever, 588 B.R. 649, 653 (Bankr. N.D. Ga. 2018) (collecting cases).

However, in In re Westwood, the Eleventh Circuit suggested that Chapter 11's definition of a party in interest, found at 11 U.S.C. § 1109(b), should apply to Chapter 7 bankruptcy proceedings. See In re Westwood Cmty. Two Assoc., 293 F.3d 1332, 1337 (11th Cir. 2002). That definition includes "the debtor" as a party in interest and contains no requirement that a debtor must first show a pecuniary interest to enjoy party-in-interest status. In re Westwood, 293 F.3d at 1337 (quoting 11 U.S.C. § 1109(b)). Although the Eleventh Circuit's party-in-interest analysis in In re Westwood is, arguably, dicta because the issue in that case was instead whether the debtor was a "person aggrieved," the Eleventh Circuit has nevertheless continued to rely on In re Westwood's party-in-interest analysis in subsequent unpublished cases. See, e.g., In re Woide, 730 F. App'x 731, 734 (11th Cir. 2018) (quoting 11 U.S.C. § 1109(b)) ("A 'party in interest' is defined as 'the debtor, the trustee, a creditors' committee, an equity security holders' committee, a creditor, an equity security holder, or any indenture trustee.'"); see also In re Rodriguez, 633 F. App'x 524, 526 (11th Cir. 2015) (citing In re Westwood, 293 F.3d at 1337) ("[W]e have held that the right for a party in interest to be heard in a bankruptcy proceeding, as set out in Chapter 11, also applies in a Chapter 7 case."); In re Basson, 713 F. App'x 987, 988 (11th Cir. 2018) (relying on In re Westwood's party-in-interest analysis).

Like these Eleventh Circuit panels, the Court also relies on In re Westwood's party-in-interest analysis and finds that, as a debtor, Appellant had statutory standing as a party in interest to object to BoNYM's proof of claim. This is true regardless of whether there is a reasonable possibility for Appellant to recover a surplus from the bankruptcy estate because the plain language of Chapter 11's party-in-interest definition contains no such requirement. See In re Westwood, 293 F.3d at 1337 (quoting 11 U.S.C. § 1109(b)) ("Chapter 11 defines a party in interest as 'the debtor....'"). However, even if Appellant had statutory standing to object to BoNYM's proof of claim as a party in interest, the Bankruptcy Judge's conclusion that Appellant lacked standing to object is nevertheless correct because she lacked Article III standing. Article III standing requires "an 'injury in fact' that is 'concrete and particularized' and 'actual or imminent[.]'" W.V. ex rel. Morrisey v. U.S. Dep't of the Treasury, 59 F.4th 1124, 1135 (11th Cir. 2023) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). An injury is "particularized" if it "affects the plaintiff in a personal and individual way." Sierra v. City of Hallandale Beach, 996 F.3d 1110, 1113 (11th Cir. 2021) (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). And, while it is generally true that "the participation of a party in interest in any proceeding satisfies the requirements of Article III," Article III's requirement for an injury in fact is not satisfied unless "the outcome of the proceeding may affect the ultimate disposition of that party's stake in the case." In re Woide, 730 F. App'x 731, 734-35 (11th Cir. 2018) (quoting 7 Collier on Bankruptcy ¶ 1109.04[4] (16th ed. 2017)).

In this case, Appellant has not suffered an injury in fact as a result of BoNYM's proof of claim and; thus, she does not have Article III standing to object. As previously discussed, BoNYM's proof of claim is a demand for payment out of the bankruptcy estate, not a demand for payment from Appellant's assets. In other words, Appellant "has no standing to object to claims... because [she] does not have a pecuniary interest in the distribution of the assets of the estate." In re Kieffer-Mickes, Inc., 226 B.R. 204, 208 (8th Cir. BAP 1998).

The Court's conclusion that Appellant lacks Article III standing is predicated on the Court's finding that Appellant has no pecuniary interest in unadministered estate assets; or, stated differently, that there is no reasonable possibility that Appellant will recover a surplus from the bankruptcy estate. BoNYM's proof of claim asserts a claim secured by the Residential Property in the amount of $886,240.81. RRA's proof of claim asserts a claim secured by the Residential Property in the amount of $83,226.17. The bankruptcy estate is currently insolvent, and the trustee has identified Appellant's interest in the sale of a business as the only remaining potential asset in the bankruptcy estate, the value of which the trustee estimates is $80,000. [BC Doc. 123]. Accordingly, there is no reasonable possibility that Appellant will recover a surplus from the bankruptcy estate.

This is true regardless of whether Appellant would have succeeded in her objections to RRA's and BoNYM's proofs of claim, as the Bankruptcy Judge thoroughly explained:

The Trustee has stated his intention to pursue the estate's cause of action against [Appellant] only if there is an unsecured claim or claims against the estate. Thus, [Appellant] can only show a pecuniary interest if the Trustee were to recover funds sufficient to pay the BONYM Claim if it were to be allowed as an unsecured claim as Plaintiff claims it is or if the BONYM Claim is disallowed and the Trustee recovers funds in excess of RRA's claim in the amount of $83,226.17 plus administrative expenses of the estate. The Trustee estimates the value of the estate's claim against [Appellant] at $80,000. Thus, even if [Appellant] is successful in disallowing the BONYM Claim, the estimated recovery to the estate is less than the other claim against the estate. Furthermore, based upon the litigation in this proceeding, any claim by the Trustee will be expensive to pursue such that there is not a reasonable possibility of a surplus to [Appellant]. Alternatively, if [Appellant] is successful in disallowing each of BONYM's and RRA's claims, the Trustee will not pursue recovery of potential estate assets, so there will be no funds to potentially distribute to [Appellant]. In either case, there is not a reasonable possibility of a surplus in the estate and [Appellant] does not have a pecuniary interest in the estate. Therefore, [Appellant] lacks standing to object to the BONYM Claim.

[AP Doc. 148 at 18] (citations omitted). Thus, regardless of whether Appellant would have succeeded in one, none, or both of her objections to RRA's and BoNYM's proofs of claim, she has no pecuniary interest in the bankruptcy estate's assets. The Bankruptcy Judge's foregoing analysis also refutes Appellant's contention that the Bankruptcy Judge erred by failing to assume that Appellant's challenges to BoNYM's and RRA's proofs of claim would have been successful. [FA Doc. 7 at 29-30].

The Court also finds that the Bankruptcy Judge's factual finding that the estate would not produce a surplus was not clear error. Although Appellant contends that the Bankruptcy Judge erred in relying on the trustee's estimate that the bankruptcy estate was worth $80,000 eight months after Appellant filed her complaint in the Adversary Proceeding, Appellant has not produced any evidence to show that the estate was worth more than the trustee's estimate when she filed her complaint. And, contrary to Appellant's assertion, it is immaterial that the trustee abandoned the Residential Property earlier in the bankruptcy. This is because BoNYM's proof of claim is a demand for payment out of the bankruptcy estate, not a demand for payment from Appellant personally or a demand to enforce BoNYM's lien against the Residential Property.

Appellant's final contention that she has a pecuniary interest in BoNYM's proof of claim as a result of her equity in the Residential Property and an asserted homestead exemption is equally meritless. See [FA Doc. 42 at 11-13]. In determining whether a debtor has a pecuniary interest because of a surplus, the question is whether the bankruptcy estate would have a surplus of assets exceeding its liabilities, not whether the debtor personally has assets exceeding her liabilities. See Caserta v. Tobin, 175 B.R. 773, 775 (S.D. Fla. 1994) (emphasis added) ("The estate will have no surplus that would give [the debtor] a pecuniary interest."); see also In re Thornton, 1995 WL 442192, at *4 (Bankr. M.D. Ga. June 23, 1995) (emphasis added) (explaining that a debtor may have standing "where there will be a surplus after distribution providing [the] debtor with a pecuniary interest in the estate."). In this case, the estate is currently insolvent, and the trustee has identified Appellant's interest in the sale of a business she once owned as the only remaining potential asset in the bankruptcy estate. [BC Doc. 123]. Accordingly, Appellant's equity in the Residential Property and her purported interest in a homestead exemption are immaterial to her pecuniary interest in the bankruptcy estate's assets.

For all the foregoing reasons, the Court finds that, because she cannot recover a surplus from the bankruptcy estate, Appellant has no pecuniary interest in unadministered estate assets. And, because she will not suffer any injury if BoNYM succeeds on its proof of claim, she has not suffered an injury in fact from BoNYM's proof of claim. Therefore, Appellant lacked Article III standing to challenge BoNYM's proof of claim in the Adversary Proceeding. ii. STANDING TO OBTAIN DECLARATORY AND INJUNCTIVE RELIEF

Appellant also challenges the Bankruptcy Judge's findings that Appellant lacked standing to obtain her requested declaratory and injunctive relief under 11 U.S.C. § 544 and under Georgia law. With regard to standing under 11 U.S.C. § 544, Appellant cites In re Shifano, 2013 WL 85203 (Bankr. D. Del. Jan. 8, 2013), and claims that she has standing to "protect her Schedule C exemptions.... without regard to whether it involves property of the estate or abandoned property." [FA Doc. 7 at 32]. With regard to her state-law challenges to MERS's 2013 assignment of the Senior Security Deed to BoNYM, Appellant contends that she has standing under Georgia law because she was a "defendant" in the Adversary Proceeding because BoNYM filed the proof of claim. [Id. at 41-44; FA Doc. 42 at 25-28].

As the Bankruptcy Judge explained, for a federal court to have jurisdiction in a bankruptcy case or proceeding, there must be a "civil proceeding[] arising under title 11, or arising in or related to [a case] under title 11." 28 U.S.C. § 1334(b); see also [AP Doc. 148 at 18-20]. And, because Appellant lacks standing to object to BoNYM's proof of claim, Appellant must assert some independent basis for Title 11 jurisdiction over her declaratory judgment and injunction claims. Relevant here, Appellant has asserted a claim under 11 U.S.C. § 544, which is a statute that arises under Title 11. [AP Doc. 9 at 37-43].

11 U.S.C. § 544(a)(3) provides the bankruptcy trustee with the rights and powers of a bona fide purchaser of real property, which includes the power to avoid a transfer of property that could be avoided by a bona fide purchaser without notice of the transfer, so long as the transfer has been perfected "at the time of the commencement of the case[.]" In conjunction with 11 U.S.C. § 522(h), which allows a debtor to stand in the trustee's shoes and avoid transfers pursuant to § 544(a)(3), Appellant seeks a declaration that the 2013 assignment of the Senior Security Deed from MERS to BoNYM was invalid and an injunction against foreclosure. [AP Doc. 9 at 37-43].

Here, however, the transfer of interests that Appellant seeks to avoid—the 2013 assignment from MERS to BoNYM—occurred years after the "time of the commencement" of Appellant's bankruptcy case, which was filed in 2010. See [BC Doc. 1]. Thus, according to 11 U.S.C. § 544(a)(3)'s plain language, the trustee lacks standing to avoid the 2013 assignment. And, because the trustee lacks standing, Appellant also lacks standing to avoid the assignment standing in the trustee's shoes under 11 U.S.C. § 522(h). The Bankruptcy Judge arrived at the same conclusion, and Appellant's arguments in her briefs and her citation to In re Shifano fail to address how the Bankruptcy Judge erred in so finding. Because Appellant's Title 11 claim fails, there are no claims that could bring Appellant's requests for declaratory and injunctive relief within the Court's Title 11 jurisdiction.⁸ As a result, Appellant's requests for declaratory and injunctive relief necessarily fail. Even if Appellant had standing to challenge the assignment of the Senior Security Deed, and even if the Bankruptcy Court had jurisdiction to hear that challenge, she would lack the power to challenge the assignment under Georgia law. "Under Georgia law, 'a person who is not a party to a contract, or an intended third-party beneficiary of a contract, lacks standing to challenge or enforce a contract.' Therefore, a borrower ordinarily lacks standing to challenge an assignment of her security deed because she is not a party to the assignment or its intended beneficiary." Timbes v. Deutche Bank Nat'l Tr. Co., 708 F. App'x 971, 974 (11th Cir. 2017) (quoting Haynes v. McCalla Raymer, LLC, 793 F.3d 1246, 1251 (11th Cir. 2015)); see also Ames v. JP Morgan Chase Bank, N.A., 298 Ga. 732, 783 S.E.2d 614, 620 (2016) ("What the debtor cannot do is dispute the assignment[.]"). Because there are no facts in this case to indicate that Appellant was an intended third-party beneficiary or that any other exception to this rule applies, Appellant would lack standing to challenge the assignment as a mere borrower.

8 As the Bankruptcy Judge explained:
BONYM has not sought to enforce any lien rights in the [Residential] Property. And to the extent BONYM does seek to enforce its lien rights, the property subject to the lien is not property of the bankruptcy estate. Therefore, to the extent Plaintiff's declaratory judgment claim seeks to invalidate BONYM's lien, the claim is not one that invokes a substantive right created by the Bankruptcy Code and is not one that could only arise in bankruptcy.
[AP Doc. 163 at 15].

Appellant's argument that she is acting as a "defendant" in the Adversary Proceeding is unavailing. [FA Doc. 7 at 41-44; FA Doc. 42 at 25-28]. As discussed above, BoNYM's proof of claim is a claim for payment out of the bankruptcy estate, not from Appellant personally. And, as discussed above, Appellant has no standing to object to BoNYM's proof of claim because she has not suffered an injury in fact. Even if an objector generally acts as a "defendant" in an adversary proceeding,⁹ Appellant was not a proper objector in the first instance due to her lack of standing and, thus, she was not acting as a "defendant" in the Adversary Proceeding. Moreover, because Appellant could not invoke the Bankruptcy Court's Title 11 jurisdiction under 11 U.S.C. § 544(a)(3), as explained above, she could not challenge the assignment separately from her objection to BoNYM's proof of claim. For these reasons, the Court affirms the Bankruptcy Judge's finding that Appellant lacked standing to seek her requested declaratory and injunctive relief.

9 See In re Miller, 2019 WL 1112335, at *3 (Bankr, N.D. Ga, Mar. 8, 2019) (citations omitted) ("In the context of a proof of claim, the party that files a proof of claim is the aggressor. The filing of a proof of claim itself, from a procedural standpoint, is tantamount to the filing of a complaint in a civil action. An objection to the claim is considered to be the answer to the claim.").

V. Application of Res Judicata

With regard to the Bankruptcy Court's dismissal of Appellant's challenges to the Senior Security Deed on res judicata grounds based on the Cobb County Action, Appellant asserts many grounds of alleged error in the Bankruptcy Judge's analysis. See [FA Doc. 7 at 57-65]. The Court will review de novo the application of res judicata and address Appellant's contentions of error where applicable.

Res judicata, also called claim preclusion, "bars the filing of claims which were raised or could have been raised in an earlier proceeding." Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999). "When a federal court exercises federal question jurisdiction and is asked to give res judicata effect to a state court judgment, it must apply the res judicata principles of the law of the state whose decision is set up as a bar to further litigation," Ebeh v. St. Paul Travelers, 459 F. App'x 860, 861 (11th Cir. 2012) (quoting Amey, Inc. v. Gulf Abstract & Title, Inc., 758 F.2d 1486, 1509 (11th Cir. 1985)). In this case, because the prior decision was made by a Georgia Superior Court, the

Court applies Georgia law's res judicata principles. Under Georgia law, a party asserting res judicata must satisfy three elements: "(1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction." Karan, Inc. v. Auto-Owners Ins. Co., 280 Ga. 545, 629 S.E.2d 260, 262 (2006) (quoting Waldroup v. Greene Co. Hosp. Auth., 265 Ga. 864, 463 S.E.2d 5, 7 (1995)).

i. IDENTITY OF THE CAUSE OF ACTION

To satisfy the first element, "the cause of action in each suit must be identical." Haley v. Regions Bank, 277 Ga. 85, 586 S.E.2d 633, 638 (2003) (quoting Norris v. Atlanta & West Point R.R. Co., 254 Ga. 684, 333 S.E.2d 835, 837 (1985)). A "cause of action" is "the entire set of facts which give rise to an enforceable claim." Coen v. CDC Software Corp., 304 Ga. 105, 816 S.E.2d 670, 671 (2018) (quoting Morrison v. Morrison, 284 Ga. 112, 663 S.E.2d 714, 719 (2008)). "In considering the 'entire set of facts,' we focus on the 'wrong' that is asserted." Coen, 816 S.E.2d at 671 (quoting City of Columbus v. Anglin, 120 Ga. 785, 48 S.E. 318, 320-21 (1904) ("Different facts may be alleged, separately or cumulatively, to show the same wrong; and the number and variety of the facts alleged will not make more than one cause of action, so long as but one wrong is shown. A single wrong will not be made plural by alleging that it is made up of a number of constituent parts.")).

As it relates to BoNYM, there is no question that Appellant asserted the same "wrong" in the Cobb County Action that she asserted in the Adversary Proceeding below. In the Cobb County Action, Appellant alleged, among other things, that:

• "There are non-existing assignments and/or multiple breaks in the chain of assignments and invalidity of assignments of [Appellant's] Security Deed and Note, all of which prohibits enforcement under Georgia law by BNYM," [AP Doc. 157-2 at 9];

• "[Appellant's] deed was never legally assigned or transferred to BNYM," [Id.];

• "MERS assignment of [Appellant's] deed [to BoNYM] was a nullity ... because, at the time of the MERS assignment, [AWC] had long since been [sic] liquidated all assets (which included [Appellant's] loan) and its bankruptcy case closed," [Id. at 11];

• "[Appellant] respectfully demands... [t]hat the Court declare that defendants have no valid title and/or rights with respect to [Appellant's] Promissory Note, Security Deed and property and that the foreclosure commenced by defendants is invalid," [Id. at 50].

In the Adversary Proceeding, Appellant similarly alleged that:

• "BONYM cannot establish a complete chain of title to the security," [AP Doc. 9 at 32-33];

• "[T]here is no record demonstrating that BONYM (or any other entity) obtained an assignment or transfer of [Appellant's] note from AWC prior to the filing of the AWC bankruptcy and the order confirming the liquidation plan in that case," [Id. at 25];

• "[T]he assignment making BONYM a secured creditor in 2010 is missing and to the extent an assignment(s) occurred at all, they were not in writing and not recorded and thus ineffective and absolutely void." [Id. at 34];

• "[B]ecause BONYM cannot validly enforce/accelerate or give notice of acceleration in regard to [Appellant's] note for the reasons hereto-fore alleged (including that it did not hold the note, was not in possession of the note and/or was assigned a note that was 'lost' before it took a purported assignment of it) BONYM cannot legally exercise the power of sale and [Appellant] is entitled to a declaratory judgment and to an injunction barring its attempt to exercise the power of sale," [Id. at 22].

Based on the foregoing excerpts, it is clear that Appellant sought to invalidate BoNYM's interest in the note and the Senior Security Deed by alleging the same "wrong" in the Cobb County Action and the Adversary Proceeding—that BoNYM never validly held the Senior Security Deed. Accordingly, the first element of res judicata is satisfied.

Appellant's claim that there is no identity of causes of action because "[b]ankruptcy claims are unique and have no existence outside of bankruptcy court and are governed by entirely different laws, legal standards and proofs" is meritless. [FA Doc. 7 at 59]. The underlying substantive grounds on which Appellant sought to challenge BoNYM's interest in the Senior Security Deed were identical in both the Cobb County Action and the Adversary Proceeding. Namely, Appellant alleged that MERS lacked authority to execute the assignment and that there was no evidence that BoNYM ever validly held the Senior Security Deed. Compare [AP Doc. 157-2 at 9-11] with [AP Doc. 9 at 22-25, 32-35]. Stated differently, if the Bankruptcy Judge had ruled in Appellant's favor in the Adversary Proceeding on this issue, her decision would have been substantively inconsistent with the decision in the Cobb County Action. See Montana v. U.S., 440 U.S. 147, 153-54, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979) (explaining one purpose of res judicata is to "foster[] reliance on judicial action by minimizing the possibility of inconsistent decisions").

Appellant's contentions that the Cobb County Superior Court never litigated (1) "the issue of the validity of an agency between MERS and the original lender [AWC]," (2) "the issue of the validity of a second lien assignment by MERS (that had not even occurred until 4 years after the state court litigation)," and (3) "the issue of the existence and validity of a purported allonge to the Note" are also irrelevant. [FA Doc. 7 at 59]. As to the issues of the agency between MERS and AWC and the allonge to the note, Appellant cannot simply raise new arguments in support of the same theory to avoid res judicata. See City of Columbus v. Anglin, 120 Ga. 785, 48 S.E. 318, 320-21 (1904) ("Different facts may be alleged, separately or cumulatively, to show the same wrong; and the number and variety of the facts alleged will not make more than one cause of action, so long as but one wrong is shown. A single wrong will not be made plural by alleging that it is made up of a number of constituent parts."); see also Hamze v. Cummings, 652 F. App'x 876, 880 (11th Cir. 2016) (quoting Yamaha Corp. of Am. v. U.S., 961 F.2d 245, 254 (D.C. Cir. 1992)) ("Once an issue is raised and determined, it is the entire issue that is precluded, not just the particular arguments raised in support of it in the first case."). And, as to the issue of MERS's assignment of the Junior Security Deed to RRA, that issue is completely irrelevant to the validity of BoNYM's interest and, as discussed above, is beyond the scope of Court's review in the First Appeal.

ii. IDENTITY OF THE PARTIES OR THEIR PRIVIES

To satisfy the second element of res judicata, there must be "a second suit involving the same parties or their privies...." ALR Oglethorpe, LLC v.

Henderson, 336 Ga. App. 739, 742, 783 S.E.2d 187 (2016) (quoting Sorrells Constr. Co. v. Chandler Armentrout & Roebuck, PC, 214 Ga. App. 193, 193-94, 447 S.E.2d 101 (1994)). However, "[t]he phrase 'same parties' does not mean that all of the parties on the respective sides of the litigation in the two cases shall have been identical; it does mean that those who invoke the defense and against whom it is invoked must be the same." Mahan v. Watkins, 256 Ga. App. 260, 261, 568 S.E.2d 130 (2002) (quoting Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 345, 270 S.E.2d 883 (1980)). Here, there is no dispute that Appellant and BoNYM were parties to both the Cobb County Action and the Adversary Proceeding. See [AP. Doc. 9 at 1, 186]. Accordingly, the second element of res judicata is satisfied.

Contrary to Appellant's contention, it is irrelevant that Fannie Mae, Freddie Mac, and RRA were not parties to the Cobb County Action. See [FA Doc. 7 at 58-59]. Only the party invoking res judicata and the party against whom it is invoked need be parties to both suits. See Mahan, 256 Ga. App. at 261, 568 S.E.2d 130. Here, those parties are BoNYM and Appellant.

iii. PREVIOUS ADJUDICATION ON THE MERITS BY A COURT OF COMPETENT JURISDICTION

Finally, to satisfy the third element of res judicata, there must be a "previous adjudication on the merits by a court of competent jurisdiction." Karan, Inc. v. Auto-Owners Ins. Co., 280 Ga. 545, 629 S.E.2d 260, 262 (2006) (quoting Waldroup v. Greene Co. Hosp. Auth., 265 Ga. 864, 463 S.E.2d 5, 7 (1995)). "A dismissal for failure to state a claim is a dismissal on the merits and is with prejudice." Comprehensive Pain Mgmt. v. Blakely, 312 Ga. App. 721, 722, 719 S.E.2d 579 (2011) (quoting Roberson v. Northrup, 302 Ga. App. 405, 406-07, 691 S.E.2d 547 (2010)); see also Johnson v. Bank of Am., N.A., 594 F. App'x 953, 955 (11th Cir. 2014). There is no dispute here that the Cobb County Superior Court was a court of competent jurisdiction.

Moreover, the Cobb County Superior Court's dismissal of Appellant's claims on BoNYM's motion to dismiss was an adjudication on the merits. This is true regardless of whether any discovery occurred, contrary to Appellant's contention. See [FA Doc. 7 at 59-60]; see also Dillingham v. Doctors Clinic, P.A., 236 Ga. 302, 223 S.E.2d 625, 626 (1976) ("[T]he sustaining of a motion to dismiss for failure to state a claim is res judicata on the merits of the claim."). Appellant also contends that the Cobb County decision did not have res judicata effect because the court relied on Appellant's lack of standing when dismissing her claims, and an adjudication based on standing is not one on the merits. [FA Doc. 42 at 15-19]. Even if an adjudication based on standing is not on the merits, the court did reach the merits and did not dismiss Appellant's claims solely on standing grounds. Instead, the court held:

[Appellant's] wrongful foreclosure claims fail for several reasons. She cannot state a claim for wrongful foreclosure because no foreclosure sale has occurred. Her arguments that [BoNYM] did not have standing to foreclose fail because she has not pled that she made all required payments under the promissory note, the Security Deed was assigned to [BoNYM], and she lacks standing to challenge assignments of the Security Deed.

[AP Doc. 9 at 190] (citations omitted) (emphasis added). Thus, the court clearly reached the merits and did not rely exclusively on Appellant's lack of standing in 42 dismissing her claims. Accordingly, the third element of res judicata is satisfied, and Appellant's claims challenging the assignment

of the Senior Security Deed to BoNYM are barred by res judicata.¹⁰

10 As the court held in the Cobb County Action, "the [Residential] Property is subject to a Security Deed held by [BoNYM] and [Appellant] cannot establish superior title to [BoNYM]." [AP Doc. 9 at 191].

VI. Bankruptcy Court's Denial of Appellant's Motion to Strike

Finally, Appellant contends that the Bankruptcy Court erred in striking her Motion to Strike. [FA Doc. 7 at 66-69]; see [AP Doc. 72]; see also [AP Doc. 130]. Appellant claims that she filed the Motion to Strike after BoNYM's attorney contradicted his sworn statement that was filed contemporaneously with BoNYM's proof of claim by later disavowing that he had personal knowledge of "anything ... of import in establishing the validity of BoNYM's proof of claim. [FA Doc. 7 at 66]. In so doing, Appellant claims that BoNYM's attorney acted improperly and that, in addition to relief pursuant to Federal Rule of Civil Procedure 12(f) and 11 U.S.C. § 105(a), rejection of BoNYM's proof of claim was appropriate. [Id. at 66-67]. In denying the Motion to Strike, Appellant argues that the Bankruptcy Judge erred by failing to make sufficient findings of fact and conclusions of law to support her decision. [Id. at 67-69].

The Court disagrees and affirms the Bankruptcy Judge's striking of the Motion to Strike. As further detailed in the Bankruptcy Judge's order striking the Motion to Strike [AP Doc. 130] and the order denying reconsideration of that order [AP Doc. 164], the Motion to Strike was a procedurally irregular motion. As the Bankruptcy Judge explained, "the Motion to Strike was seeking to disallow the BONYM Claim, whether under Rule 12(f) or § 105(a), which is the same relief (but not necessarily the same means) sought in the Amended Complaint[.]" [AP Doc. 164 at 8]. Accordingly, the Bankruptcy Judge concluded that the relief requested in the Motion to Strike "must be adjudicated through the complaint process, not by separate motion" and that "it is not proper for adjudication at this juncture." [Id.; AP Doc. 130 at 4]. In this respect, the Bankruptcy Judge's decision to deny the Motion to Strike was a discretionary case management decision that is reviewed for abuse of discretion. See Landis v. N. Am. Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936) (explaining that there is a discretionary "power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants"). The Court finds no abuse of discretion.

The Bankruptcy Judge also explicitly held that, "[t]o the extent [Appellant] seeks discovery or any other type of sanctions resulting in striking BONYM's defenses to [Appellant's] Amended Complaint and exclusion of documentation of an allegedly forged allonge, the Court has not found any basis to do so." [AP. Doc. 130 at 4]. The Bankruptcy Judge later explained in the order denying reconsideration that she had not found that BoNYM's counsel made misrepresentations to the court:

The Court does not agree ... that BONYM's counsel has misrepresented his own knowledge or that of his client or his client's position. In the 2019 Case, BONYM's counsel asserted that personal knowledge was used in making the declaration in that case. In this proceeding, BONYM's counsel has stated that he only has personal knowledge as to the documents in his control and the representations of his clients, but he has no knowledge of anything outside that realm; for example, who previously owned the loan or their actions. These statements are not contradictory. Further, in filing the BONYM Claim, counsel stated that his client gave [Appellant] credit for all payments made, and that he had examined the information provided to him and he had a "reasonable belief that the information is true and correct." He does not state that he has any personal knowledge regarding the execution or transfer of the documents underlying the BONYM Claim, but merely that based on a review the documents appear to support the BONYM Claim. Likewise, the Court has reviewed the BONYM Claim and agrees that the documents appear to support the claim....

[AP Doc. 164 at 16]. To the extent that Appellant's Motion to Strike was a motion for sanctions, the Bankruptcy Court's denial of the Motion is reviewed for abuse of discretion. See In re Waczewski, 298 F. App'x 843, 845 (11th Cir. 2008) (reviewing bankruptcy court's denial of a motion for sanctions for abuse of discretion). The Court finds that the Bankruptcy Judge had a clear factual basis for denying the Motion and did not abuse her discretion in so doing.

Finally, if Appellant's Motion to Strike was brought pursuant to Federal Rule of Civil Procedure 12(f)(2), it was, as the Bankruptcy Judge explained, untimely. See [AP Doc. 130 at 4-5; AP Doc. 164 at 8]. Rule 12 provides that, "on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading," a court may "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f)(2). BoNYM's answer to Appellant's complaint was filed and served on Appellant on February 12, 2021. See [AP Doc. 21]. Appellant filed the Motion to Strike on March 18, 2021. See [AP Doc. 72]. Accordingly, if made pursuant to Rule 12(f)(2), Appellant's Motion to Strike was untimely.

B. The Second Appeal (1:23-cv-02327-WMR)

I. Scope of Second Appeal

If an order is not certified as final under Rule 54(b), as is the case in the Second Appeal, the Eleventh Circuit generally holds that, "[a]s with other types of cases, a final order in a bankruptcy proceeding is one that ends the litigation on the merits and leaves nothing for the court to do but execute its judgment." In re Culton, 111 F.3d 92, 93 (11th Cir. 1997). However, "[f]inality is given a more flexible interpretation in the bankruptcy context... because bankruptcy is an aggregation of controversies and suits." In re Donovan; 532 F.3d 1134, 1136 (11th Cir. 2008). Thus, "it is generally the particular adversary proceeding or controversy that must have been finally resolved, rather than the entire bankruptcy litigation." In re Charter Co., 778 F.2d 617, 621 (11th Cir. 1985); see also In re Boca Arena, Inc., 184 F.3d 1285, 1286 (11th Cir. 1999) ("In bankruptcy, adversary proceedings generally are viewed as 'stand-alone lawsuits,' and final judgments issued in adversary proceedings are usually appealable as if the dispute had arisen outside of bankruptcy."). When the Bankruptcy Court enters an order that ends an adversary proceeding, "earlier interlocutory orders merge into the final judgment, and a party may appeal the latter to assert error in the earlier interlocutory order." Myers v. Sullivan, 916 F.2d 659, 673 (11th Cir. 1990).

In the context of the Second Appeal, the Bankruptcy Court's order dismissing Appellant's claims against Freddie Mac marked the end of the Adversary Proceeding because "[t]he only remaining

claims that ha[d] not been dismissed or settled [were] those against Freddie Mac." [AP Doc. 252 at 4]. As a result, any orders that were non-final and interlocutory became final when the Bankruptcy Court entered its order on May 10, 2023.¹¹ This is not to say, however, that all orders entered by the Bankruptcy Judge in the Adversary Proceeding prior to May 10, 2023, are within the Court's scope of review in the Second Appeal.

11 This is true even though the Bankruptcy Judge did not enter a separate judgment marking the end of the Adversary Proceeding as required by Federal Rule of Bankruptcy Procedure 7059 and Federal Rule of Civil Procedure 58. By filing her notice of appeal for the Second Appeal, Appellant waived the separate judgment requirement. See [AP Doc. 254]; see also Bankers Tr. Co. v. Mallis, 435 U.S. 381, 387-88, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978) (holding that the parties to an appeal waive Rule 58's separate judgment requirement when the losing party in the lower court appeals a final order and the other parties do not object to the absence of a separate judgment).

This Court's appellate jurisdiction to review final judgments and orders from the Bankruptcy Court is predicated on the timely filing of a notice of appeal with the bankruptcy clerk. Fed. R. Bankr. P. 8003(a)(1) ("An appeal from a judgment, order, or decree of a bankruptcy court to a district court or BAP under 28 U.S.C. § 158(a)(1) or (a)(2) may be taken only by filing a notice of appeal with the bankruptcy clerk within the time allowed by Rule 8002.") (emphasis added); Bowles v. Russell, 551 U.S. 205, 210, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (holding that when an appeal "has not been prosecuted in the manner directed, within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction"). Accordingly, this Court lacks jurisdiction to review the Bankruptcy Court's orders related to Appellant's challenges to BoNYM's proof of claim in the Second Appeal because Appellant's notice of appeal was filed more than a year after the Bankruptcy Court certified those orders as final under Rule 54(b). Fed. R. Bankr. P. 8002(a)(1) ("[A] notice of appeal must be filed with the bankruptcy clerk within 14 days after entry of the judgment, order, or decree being appealed."); see [AP Doc. 165] (certifying orders under Rule 54(b) on March 21, 2022); see also [AP Doc. 254] (filing, second notice of appeal on May 23, 2023).¹²

12 Stated differently, the Court lacks jurisdiction to review any orders in the Second Appeal that are properly reviewable in the First Appeal.

Similarly, the Court cannot review in the Second Appeal its own Order that dismissed RRA from the Adversary Proceeding and held that RRA's assignment was valid. See [Doc. 2], White-Lett v. The Bank of New York Mellon, Corp. et al, No. 1:21-cv-02471-WMR (N.D. Ga. filed June 17, 2021). If Appellant wishes to seek review of that Order, the proper court to hear her appeal is the Court of Appeals for the Eleventh Circuit. Moreover, Appellant could have asked this Court to reconsider its Order by filing a motion under Federal. Rule of Civil Procedure 60, but she has failed to do so.¹³ Accordingly, the validity of RRA's assignment and RRA's dismissal from the Adversary Proceeding are also unreviewable in the Second Appeal.

13 In any event, the Court would not be inclined to grant Rule 60 relief. Such a motion would now be untimely under Rule 60(b)(1)-(3), and Appellant has yet to make a persuasive argument in her appellate briefing for relief under Rule 60(b)(4)-(6).

The Court further finds that issues related to BoA are not properly reviewable in the Second Appeal because BoA was dismissed from the Adversary Proceeding with prejudice pursuant to a

stipulation of dismissal signed by Appellant. See [AP Doc. 244; AP Doc. 245]; see also Druhan v. Am. Mut. Life, 166 F.3d 1324, 1326 (11th Cir. 1999) (finding that there is no appellate jurisdiction where a party attempts to appeal a dismissal that she requested).

Accordingly, the Court omits discussion of issues that are beyond the scope of the Court's review in the Second Appeal. These issues include: Appellant's objection that the Bankruptcy Court erred by dismissing BoA [SA Doc. 8 at 27]; Appellant's arguments about the validity of the assignment of the Junior Security Deed to RRA [Id. at 37-47, 53-56]; and Appellant's arguments about the validity of the assignment of the Senior Security Deed to BoNYM [Id. at 37-50, 53-56].

The Court will, however, address Appellant's arguments related to Fannie Mae's dismissal despite Fannie Mae's contention that it should not. See [SA Doc. 11]. Fannie Mae argues that it is not a proper party to the Second Appeal because Appellant did not designate any order relating to Fannie Mae in her notice of appeal. [Id. at 7]. The Court notes, however, that although Appellant is an experienced litigant, she is still proceeding pro se, and her filings should be liberally construed. Even if Appellant did not explicitly list an order relating to Fannie Mae in her notice of appeal, she clearly intended to challenge Fannie Mae's dismissal, as evidenced by the arguments in her appellate briefing. Additionally, as explained above, the Bankruptcy Judge's interlocutory order dismissing Fannie Mae became final when the Bankruptcy Judge entered the order dismissing Appellant's claims against Freddie Mac, marking the end of the Adversary Proceeding. Thus, the Court finds that Appellant's arguments related to Fannie Mae's dismissal are properly reviewable in the Second Appeal. The Court now turns to the reviewable issues presented in the Second Appeal.

II. Dismissal of MERS and MERSCorp

As previously mentioned, Appellant sought a declaration that MERS did not have a right to enforce the Security Deeds associated with the Residential Property, that MERS did not have the right to transfer the Security Deeds when it did, and that no one validly received the Security Deeds from MERS. [AP Doc. 9 at 35-36].¹⁴ The Bankruptcy Judge dismissed MERS and MERSCorp from the Adversary Proceeding when it granted their motion to dismiss, finding that Appellant had not alleged a justiciable controversy as to MERS and MERSCorp and that Appellant lacked Article III standing to obtain her requested declaratory relief. See [AP Doc. 121 at 12-14]. In the same order, the Bankruptcy Judge also denied as moot two of Appellant's then-pending motions for summary judgment against MERS and MERSCorp. [Id. at 14]. Appellant frames many of her contentions of error on appeal as relating to the denial her motions for summary judgment rather than the grant of the motion to dismiss. However, if Appellant's complaint in the Adversary Proceeding failed to state a valid claim against MERS and MERSCorp as a matter of law, Appellant's motions for summary judgment would necessarily fail, too. Accordingly, the Court will first review de novo the Bankruptcy Court's grant of MERS and MERSCorp's motion to dismiss. Federal courts, as courts of limited jurisdiction, "possess only that power authorized by [the] Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Article III, section 2 of the Constitution extends the judicial power of federal courts to "Cases" and "Controversies." U.S. Const. Art. III, § 2.¹⁵ "Justiciability is the term of art employed to give expression to this limitation placed upon federal courts by the case-and-controversy doctrine." U.S. v. Rivera, 613 F.3d 1046, 1049 (11th Cir. 2010) (quoting Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)). The "case-and-controversy requirement demands we can hear only justiciable matters, to prevent us from 'encroaching on the powers of the other branches of government' or deciding matters outside the 'adversarial context.'" Baughcum v. Jackson, 92 F.4th 1024, 1030 (11th Cir. 2024) (quoting Socialist Workers Party v. Leahy, 145 F.3d 1240, 1244 (11th Cir. 1998)). Relevant here, for a claim to be justiciable, the party asserting the claim must have standing, and the claim must be ripe. See Baughcum, 92 F.4th at 1030 (quoting Strickland v. Alexander, 772 F.3d 876, 883 (11th Cir. 2014)).

14 Appellant also named MERSCorp as a party in both the Adversary Proceeding and the Second Appeal, apparently because it is the parent company of MERS. Appellant does not appear to distinguish between the two entities in any of her arguments, however. The Court treats Appellant's claims against MERSCorp as the same claims against MERS, and the following analysis applies equally to both entities.

15 See In re Wade, 2008 WL 1722287, at *1 (Bankr. M.D. Ga. Apr. 9, 2008) (citing In re Cult Awareness Network, 151 F.3d 605, 607 (7th Cir. 1998)) ("U.S. Const. Art. III, sec, 2, cl. 1 ... applies to Bankruptcy Courts because their jurisdiction is derived from the district courts, which are limited by the case or controversy requirement.").

For a party to have standing, she must have suffered "an 'injury in fact' that is 'concrete and particularized' and 'actual or imminent[.]'" W.V. ex rel. Morrisey v. U.S. Dep't of the Treasury, 59 F.4th 1124, 1135 (11th Cir. 2023) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). "A concrete injury is one that 'actually exists' and is 'real' rather than 'abstract.'" Baughcum, 92 F.4th at 1031 (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 340, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016)). "An actual or imminent injury, unlike a conjectural or hypothetical one, is one which has occurred, is certainly impending, or has substantial risk of occurring." Baughcum, 92 F.4th at 1031. To satisfy the injury-in-fact requirement when a party seeks declaratory relief, as opposed to damages for past injuries, that party must "allege facts from which it appears there is a substantial likelihood that he will suffer injury in the future." Strickland v. Alexander, 772 F.3d 876, 883 (11th Cir. 2014) (quoting Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1346 (11th Cir. 1999)).

To determine whether a claim is ripe, the Court considers "whether there is sufficient injury to meet Article III's requirement of a case or controversy and, if so, whether the claim is sufficiently mature, and the issues sufficiently defined and concrete, to permit effective decision-making by the court." Baughcum, 92 F.4th at 1036 (quoting Elend v. Basham, 471. F.3d 1199, 1211 (11th Cir. 2006)). "A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Rivera, 613 F.3d at 1050 (quoting Texas v. U.S., 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998)).

Here, the Court agrees with the Bankruptcy Judge that Appellant lacks standing to pursue her requested declaratory relief and that she has not presented a justiciable claim between herself, MERS, and MERSCorp. No matter how Appellant spins it, neither MERS nor MERSCorp have threatened to injure Appellant, and Appellant did not (and could not) allege as

much in her complaint. BoNYM and RRA are the only entities that have sought to enforce the Senior and Junior Security Deeds, not MERS and MERSCorp. See [AP Doc. 9 at 55-59, 194-206]. Nor did Appellant allege facts to demonstrate that MERS or MERSCorp could, in the future, threaten to injure her.¹⁶

16 It is telling that, in her ten pages of argument related to standing and justiciability on appeal, Appellant does not once cite to a specific allegation in her complaint to refute the Bankruptcy Judge's findings. See [SA Doc. 8 at 28-37].

Because Appellant did not allege facts to show that there is a "substantial likelihood" that MERS or MERSCorp will injure her in the future, she has not satisfied the injury-in-fact requirement to pursue a claim for declaratory relief. Strickland, 772 F.3d at 883 (quoting Malowney, 193 F.3d at 1346). Accordingly, she does not have standing to pursue her claim for declaratory judgment. See W.V. ex rel. Morrisey, 59 F.4th at 1135. Moreover, even if Appellant had alleged that MERS or MERSCorp still maintains some interest in the Security Deeds, it is unclear to the Court how they would use that interest to injure Appellant. Stated differently, Appellant's claim that MERS or MERSCorp could somehow injure her in the future is not now ripe because it is not "sufficiently mature, and the issues sufficiently defined and concrete, to permit effective decision-making by the court." Baughcum, 92 F.4th at 1036 (quoting Elend, 471 F.3d at. 1211). Because Appellant does not have standing to seek declaratory relief against MERS or MERSCorp, and because the issues are not ripe for determination, Appellant has not asserted a justiciable claim. See Baughcum, 92 F.4th at 1030 (quoting Strickland, 772 F.3d at 883).

On appeal, to provide evidence that MERS or MERSCorp claims some interest in the Security Deeds, Appellant relies on the declaration of William Hultman, a MERS and MERSCorp officer, in the unrelated litigation of In re Agard (the "Hultman Declaration"). See generally [SA Doc. 8]; see also 444 B.R. 231 (Bankr. E.D.N.Y. 2011). Appellant points the Court to the following language from the Hultman Declaration:

Once MERS becomes the mortgagee of record, MERS remains the mortgagee of record when beneficial ownership interests or servicing rights are sold from one MERS Member to another, and the transfer is tracked electronically on the MERS® System. At all times during this process, the original mortgage or an assignment of the mortgage to MERS remains of record in the public land records where the security real estate is located, providing notice of MERS' disclosed role as the agent for the MERS Member lender and the lender's successors and assigns.

[SA Doc. 8 at 22-23]. Appellant reads this excerpt to mean that, "as soon as MERS' agency for an assignor/lender ends upon its assignment of the deed to a new assignee/lender, the new assignee/lender simultaneously appoints MERS as its agent/nominee. There is thus no gap or space of time in a mortgage assignment transaction between two lenders where MERS is not the nominee/agent in the land records. MERS simply walks out of one agency and immediately into another agency." [Id. at 29]. Based on this interpretation, Appellant extrapolates that MERS still claims some interest in the Residential Property and that, thus, there is a live controversy between her and MERS. [Id. at 30, 33-35].

The first issue with Appellant's argument is that she did not include—or even mention—the Hultman Declaration in her complaint. See generally [AP Doc. 9]. Thus, the Bankruptcy Court did not err by

not considering it below, and Appellant did not preserve any arguments related thereto on appeal. See Juris v. Inamed Corp., 685 F.3d 1294, 1325 (11th Cir. 2012) (quoting In re Pan Am. World Airways, Inc., 905 F.2d 1457, 1461-62 (11th Cir. 1990)) (citations omitted) ("A federal appellate court will not, as a general rule, consider an issue that is raised for the first time on appeal. The corollary of this rule is that, if a party hopes to preserve a claim, argument, theory, or defense on appeal, she must first clearly present it to the [trial] court, that is, in such a way as to afford the [trial] court an opportunity to recognize and rule on it.").

However, even if Appellant could rely on the Hultman Declaration in this appeal, her interpretation of it is incorrect. The Hultman Declaration describes scenarios when "MERS [is the] mortgagee of record" and "when beneficial ownership interests or servicing rights are sold from one MERS Member to another." [SA Doc. 8 at 22-23] (emphasis added). Here, however, MERS is not the mortgagee of record, and the transfer of interests was from MERS to BoNYM and RRA, not a from "one MERS Member to another." [Id.]. Thus, the Hultman Declaration does not support Appellant's contention that MERS or MERSCorp still claims some interest in the Residential Property.

Appellant also relies extensively on the following language from the Senior Security Deed:

This Security Instrument secures to Lender [(AWC)]: (i) the repayment of the Loan, and all renewals, extensions and modifications of the Note, and (ii) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby grant and convey to MERS (solely as nominee for Lender and Lender's successors and assigns) and the successors and assigns of MERS, with power of sale, the [Residential Property].

[Id. at 32]. Appellant interprets this language to mean that "MERS serves as the 'nominee'—not only on behalf of the lenders and the lenders' assigns but also for the 'assigns' of MERS.... Thus, by the very plain language in the Deed itself, MERS now continues to act as 'nominee' for [BoNYM]—the 'assign of MERS.'" [Id.]. As with the Hultman Declaration, Appellant relies on this interpretation to 57 claim that MERS still claims an interest (as a nominee for BoNYM) in the Residential Property. [Id. at 32-35].

However, Appellant's interpretation is, again, incorrect. The foregoing provision from the Senior Security Deed granted the Residential Property to "MERS ... and the successors and assigns of MERS, with power of sale[.]" [Id. at 32]. The provision separately communicates that MERS acts "(solely as nominee, for [AWC] and [AWC's] successors and assigns)." [Id.]. Appellant errs in interpreting the provision because she reads the language in the preceding parenthetical as modifying the language after it, when instead, it modifies the language immediately before it. As MERS and MERSCorp point out in their appellee brief, "[i]f MERS were intended to act as nominee for its own successors and assigns, then the successors and assigns would be mentioned inside the 'solely as nominee' parenthetical." [SA Doc. 12 at 20]. Instead, however, "MERS' successors and assigns are listed with MERS as grantees under the deed; they are not listed with 'Lender and Lender's successors and assigns' as parties for whom MERS acts as nominee." [Id.]. Thus, contrary to Appellant's contention, the language of the Senior Security Deed does not indicate that MERS continues to hold

an interest in the Residential Property as a nominee for its own grantee, BoNYM.

Finally, Appellant advances several arguments in support of the proposition that she could seek declaratory relief against MERS and MERSCorp even if they do not presently claim any rights or interests in the Security Deeds or the Residential Property. See [SA Doc. 8 at 35-39]. Among these arguments are that Appellant could obtain declaratory relief ."in the nature of quiet title" and that she could obtain declaratory relief under the Georgia Declaratory Judgment Act, O.C.G.A. § 9-4-2. [Id.]. In so arguing, Appellant relies on caselaw from the Georgia Supreme Court and Vermont Supreme Court. See [Id.].

These arguments fail because, if MERS and MERSCorp do not presently claim any rights or interests in the Security Deeds or the Residential Property, Appellant cannot state justiciable claims against them, as previously discussed. Appellant errs in assuming that, if the Bankruptcy Court had applied state law to analyze her claims, her claims would be justiciable. State courts are not bound by Article III and may therefore disregard federal standing requirements. See ASARCO Inc. v. Kadish, 490 U.S. 605, 617, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) ("[T]he constraints of Article III do not apply to state courts, and accordingly the state courts are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law[.]"). However, even if state courts typically disregard federal standing requirements when applying a particular state law, federal courts are still bound by Article III's limitations when applying the same state law. See Wilding v. DNC Servs. Corp., 941 F.3d 1116, 1125 (11th Cir. 2019) ("Article III's standing requirements apply to state-law claims brought in federal court."). Accordingly, even if the Georgia or Vermont Supreme Courts would have had the authority to hear Appellant's claims regarding MERS and MERSCorp, the Bankruptcy Court did not, even if it applied state law.

III. Dismissal of Fannie Mae

The final reviewable issue raised by Appellant in the Second Appeal is whether the Bankruptcy Judge erred in dismissing Appellant's claim seeking a "decree[] that Fannie Mae does not have and in fact never had an enforceable security interest[] in her property because it cannot show a complete chain of assignments to the security...." [AP Doc. 29 at 5]. As previously discussed, the Bankruptcy Judge dismissed Appellant's claim against Fannie Mae when it granted Fannie Mae's motion to dismiss, finding that Appellant lacked standing under both the Bankruptcy Code and the Constitution. See [AP Doc. 79].

After reviewing the issues de novo, the Court agrees with the Bankruptcy Judge as to both findings. As it relates to Appellant's standing to assert a claim against Fannie Mae under the Bankruptcy Code, "[b]ecause a Chapter 7 debtor forfeits his prepetition assets to the estate, only the Chapter 7 trustee, not the debtor, has standing to pursue a civil legal claim unless the trustee abandons the asset[.]" Slater v. U.S. Steel Corp., 871 F.3d 1174, 1180 (11th Cir. 2017). "Once an asset becomes part of the bankruptcy estate, all rights held by the debtor in the asset are extinguished unless the asset is abandoned back to the debtor pursuant to § 554 of the Bankruptcy Code. At the close of the bankruptcy case, property of the estate that is not abandoned under § 554 and that is not administered in the bankruptcy proceedings remains the property of the estate." Parker v. Wendy's Intern., Inc., 365

F.3d 1268, 1272 (11th Cir. 2004) (citing 11 U.S.C. § 554(a)-(d)).

As the Bankruptcy Judge correctly noted, the allegations in Appellant's complaint indicated that Fannie Mae purchased Appellant's loan some time between 2004 and the third quarter of 2009, but the Bankruptcy Case was filed on January 19, 2010. See [AP Doc. 70 at 11-12]; see also [AP Doc. 9 at 152]. Accordingly, Appellant's claim sought to challenge pre-petition conduct, which is a claim only the Chapter 7 trustee would have standing to bring. Moreover, the Chapter 7 trustee has not abandoned the claim, and Appellant did not schedule it so that it would be abandoned by operation of law pursuant to § 554(c) when the Bankruptcy Case first closed in 2012. See 11 U.S.C. § 554(c) (emphasis added) ("Unless the court orders otherwise, any property scheduled under section 521(a)(1) of this title not otherwise administered at the time of the closing of a case is abandoned to the debtor...."). Thus, Appellant did not have standing under the Bankruptcy Code to assert her pre-petition claim against Fannie Mae.

For a party to have constitutional standing, on the other hand, she must have suffered "an 'injury in fact' that is 'concrete and particularized' and 'actual or imminent[.]'" W.V. ex rel. Morrisey v. U.S. Dep't of the Treasury, 59 F.4th 1124, 1135 (11th Cir. 2023) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). To satisfy the injury-in-fact requirement when a party seeks declaratory relief, as opposed to damages for past injuries, that party must "allege facts from which it appears there is a substantial likelihood that he will suffer injury in the future." Strickland v. Alexander, 772 F.3d 876, 883 (11th Cir. 2014) (quoting Malowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1346 (11th Cir. 1999)). "Based on the facts alleged, there must be a substantial continuing controversy between two adverse parties," and "[t]he plaintiff must allege facts from which the continuation of the dispute may be reasonably inferred." Malowney, 193 F.3d at 1347 (quoting Emory v. Peeler, 756 F.2d 1547, 1551-52 (11th Cir. 1985)). "[T]he continuing controversy may not be conjectural, hypothetical, or contingent; it must be real and immediate, and create a definite, rather than speculative threat of future injury." Id.

Again, the Court finds that the Bankruptcy Judge correctly concluded that Appellant did not allege facts to demonstrate a continuing controversy between herself and Fannie Mae or a substantial likelihood that Fannie Mae would injure her in the future. See [AP Doc. 79 at 13-14]. Appellant named Fannie Mae as a defendant in the Adversary Proceeding because it "may possibly own or claim an interest in [Appellant's] loan...." [AP Doc. 9 at 17 n.7]. However, Fannie Mae has not asserted an interest in the Residential Property, and Appellant did not (and could not) allege as much. Even if Fannie Mae somehow has an interest in the Residential Property, Appellant has not demonstrated that there is a "substantial likelihood" that it may use its interest to injure Appellant in the future. Strickland, 772 F.3d at 883 (quoting Malowney, 193 F.3d at 1346). At best, Appellant has demonstrated a "speculative threat of future injury," which is insufficient for purposes of constitutional standing. Malowney, 193 F.3d at 1347 (quoting Emory, 756 F.2d at 1551-52). Accordingly, the Court finds that Appellant lacks constitutional standing to pursue her claim for declaratory judgment against Fannie Mae. See

W.V. ex rel. Morrisey, 59 F.4th at 1135.¹⁷

17 As with MERS and MERSCorp, see supra p. 98, the Court's finding that Appellant lacks constitutional standing also disposes of Appellant's argument on appeal that she would have had standing if the Bankruptcy Court had analyzed her claim under state law. See [SA Doc. 8 at 50-51].

Appellant makes several arguments on appeal to argue that the Bankruptcy Judge erred in dismissing her claim against Fannie Mae, but some of her arguments are difficult to understand. For example, Appellant says that she will "show[] now that the uncontradicted facts indeed supported the existence of a present claim of interest in her loan and property by Fannie Mae." [SA Doc. 8 at 48] (emphasis in original). However, in the same paragraph, Appellant, referring to her mortgage loan, concludes that "Fannie Mae cannot own what it never in fact purchased or received." [Id.]. Later in her argument, Appellant seems to concede that "Fannie Mae does not claim to own any interests in Appellant's loan...." [Id. at 50]. While the Court is unsure what to make of this argument, Appellant did not cite a single, specific allegation from her complaint to support it. See [Id. at 48-51]. The Court is therefore satisfied that Appellant has not shown that the Bankruptcy Judge made a clearly erroneous finding of fact.

Appellant next argues that, as a debtor, she had "party in interest" standing to assert a claim for declaratory relief pursuant to the Eleventh Circuit's decision in In re Westwood. See In re Westwood Cmty. Two Assoc., 293 F.3d 1332, 1337 (11th Cir. 2002); see also [SA Doc. 8 at 51-52]. However, just as with BoNYM, even if Appellant had statutory standing to be heard in the Adversary Proceeding, she did not have constitutional standing to pursue her claim for declaratory relief against Fannie Mae. Thus, Fannie Mae was properly dismissed.

Finally, Appellant claims that, regardless of whether she is "deemed to be proceeding as a plaintiff ... or as a defendant with respect to her adversary complaint objecting to the proof of claim ... she is permitted to raise any issue going to the completeness of the chain of assignments affecting the enforceability of the security deed—whoever would attempt to enforce it." [SA Doc. 8 at 55]. However, the Court has already held that Appellant was not a proper objector in the Adversary Proceeding in the first instance due to her lack of standing to challenge BoNYM's proof of claim. See supra pp. 82-85. Because her objection to BoNYM's proof of claim could not have resulted in a surplus returned to her from the bankruptcy estate, she had no pecuniary interest in the outcome and no standing to object. If Appellant had no standing to challenge BoNYM's proof of claim directly, she certainly did not have standing to challenge it indirectly in the same proceeding by seeking declaratory relief against Fannie Mae. Accordingly, the Bankruptcy Court did not err in dismissing Appellant's declaratory judgment claim against Fannie Mae.

IV. Conclusion

For the foregoing reasons, the Court AFFIRMS the Bankruptcy Court's orders dismissing Appellant's challenges to BoNYM's proof of claim in the First Appeal (4:22-cv-00082-WMR). See [AP Docs. 130; 148; 163; and 164]. The Court further AFFIRMS the Bankruptcy Court's orders dismissing Appellant's claims against MERS, MERSCorp, and Fannie Mae in the Second Appeal (1:23-cv-02327-WMR). See [AP Docs. 79; 121]. IT IS SO ORDERED, this 20th day of April, 2024.