Bishop v. GMAC Mortgage, LLC (In re Bishop)
Bishop v. GMAC Mortgage, LLC (In re Bishop)
Opinion of the Court
MEMORANDUM OPINION
This matter comes before the Court on Plaintiffs complaint to determine the extent and validity of a lien and Defendants’ motion for summary judgment. This is a core matter within the meaning of 28 U.S.C. § 157(b)(2)(K). After considering the pleadings, the evidence, and the applicable authorities, the Court enters the following findings of fact and conclusions of law in conformance with Federal Rule of Bankruptcy Procedure 7052.
Undisputed Facts
On May 12, 2006, Debtor-Plaintiff Sharon D. Bishop borrowed $115,900 from Defendant GMAC Mortgage and executed a promissory note in that amount. Also on May 12, 2006, Plaintiff gave Defendant Mortgage Electronic Registration Systems, Inc. (“MERS”) a security deed on real property serving as her primary residence for the purpose of securing the note held by GMAC.
The security deed provided that “MERS ... is acting solely as a nominee for Lender and Lender’s successors and assigns. MERS is the grantee under this Security Instrument.” (Def. Mot. Summ. J’mt., Aff. of Juan Aguirre, Ex. B., Security Deed, p. 1., docket no. 24.
Plaintiff filed a complaint to determine the extent and validity of lien, for declaratory judgment, and for other and further relief. In the complaint, Plaintiff challenges the validity of the foreclosure sale, alleging (1) the transfer the security deed from MERS to GMAC was void because MERS had no rights in the property to transfer, and therefore Plaintiffs residence was property of the estate; and (2) the recordation of the deed under power of sale violated the automatic stay.
The three Defendants filed a motion for summary judgment. The Court held a hearing on the motion on November 21, 2011. At the hearing, the Court granted Defendants’ motion. This memorandum opinion supplements the announcement made at the hearing.
Conclusions of Law
Summary judgment is governed by Federal Rule of Bankruptcy Procedure 7056 and Federal Rule of Civil Procedure 56, which provides, “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a).
Defendants provided a statement of uncontested facts with their motion for summary judgment as required by Local Rule 7056-l(a). Although Debtor filed a brief raising various legal arguments, she did not file a “separate, short, and concise statement of the material facts” she contends are in dispute. LBR 7056 — 1(b). Therefore, the facts offered by Defendants are deemed admitted.
In her brief, Debtor contends Defendants are not entitled to summary judgment because (1) the foreclosure sale is void or voidable due to a defect in the assignment of the power of sale from MERS to GMAC; or (2) she had an equitable right to appeal the foreclosure proceeding that had not expired as of the petition date.
Validity of the Foreclosure Sale
Debtor contends that the foreclosure sale is void or voidable because of a defect in the transfer of the power of sale. First, Debtor argues that MERS’s rights as a nominee are not defined in the security deed. Therefore, it is not authorized to transfer the power of sale under the security deed. Second, Debtor argues that the assignment of the power of sale from MERS to GMAC was made without consideration and was, therefore, ineffective. The Court finds both arguments unpersuasive.
MERS ... is acting solely as a nominee for Lender and Lender’s successors and assigns. MERS is the grantee under this Security Instrument.
Borrower does hereby grant and convey to MERS (solely as nominee for Lender and Lender’s successors and assigns) and to the successors and assigns of MERS, with the power of sale, the following described property ...
TO HAVE AND TO HOLD this property unto MERS (solely as nominee for Lender and Lender’s successors and assigns) and to the successors and assigns of MERS.... Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property!.]
(Security Deed, p. 1, 3 (emphasis added).)
Debtor first argues that because the security deed fails to define the rights of the nominee, Defendants are estopped from enforcing a particular definition of a nominee. Debtor cites Moss v. Moss, 265 Ga. 802, 463 S.E.2d 9 (1995) to support her argument. Moss involved a divorce settlement agreement that required the husband to transfer property of a certain value to the wife. Id. at 9. However, the court found the agreement was unenforceable because it did not include an essential term-the method of appraising the property to be transferred. Id. at 9-10. The security deed in this case has no similar deficiency. It states in at least four places that MERS is acting as GMAC’s nominee. Furthermore, it sets forth specific rights and duties of MERS: MERS is the grantee of the security deed and has the power of sale. This is sufficient to identify MERS as GMAC’s agent for a limited purpose. See O.C.G.A. § 10-6-1 (2009) (“The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him[.]”); Drake v. Citizens Bank of Effingham (In re Corley), 447 B.R. 375, 380 (Bankr.S.D.Ga. 2011) (“The language used in the Security Deed is sufficient to create an agency relationship [between the lender and MERS]”); contra Landmark Nat’l Bank v. Kesler, 289 Kan. 528, 216 P.3d 158, 166 (2009) (describing MERS as a straw man rather than an agent of the lender). For these reasons, the Court finds the security deed does not lack any essential terms regarding MERS’s role or its rights and duties.
Debtor next argues that the assignment of the security deed from MERS to GMAC was invalid because it lacked consideration. In Bank of Cave Spring v. Gold Kist, Inc., 173 Ga.App. 679, 327 S.E.2d 800 (1985), which involved a dispute over the assignment of milk proceeds, the court said, “An assignment is a contract and, in order to be valid, must possess the same requisites (parties, subject matter, mutual assent, consideration) as any other contract.” Id. at 802 (citing 4A Words and Phrases 109). In this case, the transfer and assignment recited consideration (“value received”) but there is no evidence any consideration actually exchanged hands. However, the Court is not persuaded that consideration was necessary for this transaction.
First, transfer of a security deed is significantly different from the assignment of
In this case, GMAC initiated the foreclosure sale, but earlier in its history, MERS itself often did so.
For the foregoing reasons the Court finds no defect in either the security deed or the transfer and assignment. At the
Equitable Right of Redemption
Debtor argues that because the foreclosure sale had not yet been recorded at the date of her bankruptcy filing, she retained an equitable right of redemption that became part of her bankruptcy estate, and the post-petition recordation of the sale violated the automatic stay. Debtor is mistaken. The law in Georgia is well established that the foreclosure sale itself cuts off all the debtor’s rights in real property. Williams v. SunTrust Bank (In re Williams), 393 B.R. 813, 820 (Bankr.M.D.Ga. 2008); First Nationwide Mortg. Corp. v. Davis (In re Davis), No. 97-11093, 1998 WL 34066146, at *2-3 (Bankr.S.D.Ga. Jan. 21, 1998); see also Pearson v. Fleet Fin. Ctr., Inc. (In re Pearson), 75 B.R. 254, 255 (Bankr.N.D.Ga. 1985) (“Georgia law states that the equity of redemption expires when the high bid is received at the foreclosure sale.”)
The automatic stay prohibits certain actions against the debtor, property of the debtor, and property of the estate. 11 U.S.C. § 362(a). In this case, Debtor retained no interest in her residence on the petition date, so it did not become property of the estate. Consequently, GMAC did not violate the automatic stay by recording the sale post-petition.
Equitable Right of Appeal
Debtor’s final argument is that she has an equitable right to appeal the foreclosure pursuant to O.C.G.A. § 5-6-33(a)(1) that was still ripe on the petition date, and through that right of appeal, the bankruptcy estate retained an interest in the property. O.C.G.A. § 5 — 6—33(a)(1) provides as follows: “Either party in any civil case ... may appeal from any sentence, judgment, decision, or decree of the court [.]” Id. (emphasis added). Unfortunately for Debtor, foreclosure in Georgia does not involve any judgment, decision, or decree of a court. Thus, § 5 — 6—33(a)(1) does not apply to create a right to appeal. A court judgment may arise from a confirmation proceeding if the foreclosing creditor seeks to pursue a deficiency. O.C.G.A. § 44-14-161. However, no confirmation proceeding has been initiated in this case. Therefore, Debtor has no equitable right to appeal the foreclosure sale.
, Conclusion
The Court finds no defect in GMAC’s right to exercise the power of sale in the security deed or any other defect that would render the foreclosure sale void or voidable. Furthermore, the Court finds that Debtor retained no interest in her residence on the petition date. For these reasons, the Court concludes Defendants are entitled to judgment as a matter of law, and their motion for summary judgment will be granted.
An Order in accordance with this Opinion will be entered on this date.
SO ORDERED.
. Hereinafter cited as “Security Deed.”
. To the extent Debtor’s brief purports to dispute facts offered by Defendants, that effort is untimely. A response to the movant’s statement of uncontested facts must be filed “within 21 days of service” of the movant’s statement. LBR 7056-l(b). In this case, Defendants’ statement of facts was served on October 11, 2011, and Debtor’s response was not filed until 35 days later on November 15, 2011.
. By comparison, O.C.G.A. § 44-5-30, which governs deeds to land generally provides that such deeds "must be in writing, signed by the maker, and attested by at least two witnesses. It must be delivered to the purchaser or his representative and be made on a good or valuable consideration.”
. “Generally, an agency is revocable at the will of the principal.” O.C.G.A. § 10-6-33 (2009).
. "In 1993, the MERS system was created by several large participants in the real estate mortgage industry to track ownership interests in residential mortgages. Mortgage lenders and other entities, known as MERS members, subscribe to the MERS system and pay annual fees for the electronic processing and tracking of ownership and transfers of mortgages. Members contractually agree to appoint MERS to act as their common agent on all mortgages they register in the MERS system.
The initial MERS mortgage is recorded in the County Clerk's office with 'Mortgage Electronic Registration Systems, Inc.’ named as the lender's nominee or mortgagee of record on the instrument. During the lifetime of the mortgage, the beneficial ownership interest or servicing rights may be transferred among MERS members (MERS assignments), but these assignments are not publicly recorded; instead they are tracked electronically in MERS's private system.” Merscorp, Inc. v. Romaine, 8 N.Y.3d 90, 828 N.Y.S.2d 266, 861 N.E.2d 81, 83 (2006) (footnotes omitted).
Reference
- Full Case Name
- In re Sharon D. BISHOP, Debtor. Sharon D. Bishop v. GMAC Mortgage, LLC, f/d/b/a GMAC Mortgage Corporation, Merscorp, Inc. and its subsidiary Mortgage Electronic Registration Systems
- Cited By
- 2 cases
- Status
- Published