Ames v. Jp Morgan Chase Bank, N.A.
Ames v. Jp Morgan Chase Bank, N.A.
Opinion
In 2007, Cindy and David Ames executed a security deed to their residential property in favor of Washington Mutual Bank, F.A. (WaMu). WaMu's receiver, the Federal Deposit Insurance Corporation (FDIC), later assigned the deed to JP Morgan Chase Bank, N.A (Chase). When Chase initiated a non-judicial foreclosure sale on the property, the Ameses filed lawsuits in state court and then in federal court, alleging among other things that the assignment of the security deed to Chase was invalid.
We granted certiorari to decide whether the Georgia Court of Appeals erred in concluding in the state lawsuit that the Ameses lack standing to bring such a challenge to the assignment, a conclusion based on that court's previous decisions in
Montgomery v. Bank of America,
1. The property at issue in this case is a plot of land with a very expensive house on it in Alpharetta, Georgia. The Ameses acquired the property on February 16, 2000. On March 30, 2007, they executed the security deed in favor of WaMu to secure a loan refinancing the house for $4,650,000. That deed was recorded in Fulton County on April 6, 2007. The deed grants and conveys the property and the power of sale to WaMu and its "successors and assigns." On September 25, 2008, WaMu was declared insolvent, the FDIC was appointed receiver for WaMu, and the FDIC and Chase executed a purchase and assumption agreement that transferred certain WaMu assets to Chase, including all loans and loan commitments of WaMu. In a power of attorney document recorded in Fulton County on December 18, 2008, the FDIC explained that under the terms and conditions of the purchase and assumption agreement, "[Chase] acquired, among other [WaMu] Assets, all real estate ... of [WaMu]," with limited exceptions not relevant here. The FDIC appointed Chase "to act as Attorney-in-Fact for the [FDIC]" for the limited purpose of transferring "any interest in real estate ... and any personal property appurtenant to the real estate from the [FDIC] to [Chase] or to an affiliate of [Chase]." The document states that the limited power of attorney was effective on September 25, 2008 and "automatically revoked" on September 25, 2010.
On August 22, 2012, Chase assigned the Ameses' security deed to itself, purporting to do so as attorney-in-fact for the FDIC. The assignment, which was recorded in Fulton County on September 4, 2012, recited that it was "intended to further memorialize the transfer that occurred by operation of law on September 25, 2008." The assignment was signed by two vice presidents on behalf of Chase. The Ameses allege that in October or November 2012, they asked Chase to provide a "P 190 screen shot" to verify existing business records and prove that Chase was a secured creditor under their deed, but Chase declined.
At some point during this period, the Ameses apparently defaulted on the loan. Chase hired a law firm, Aldridge Pite, LLP (Aldridge), to initiate a non-judicial foreclosure sale, which was set for January 2, 2013. In response to the threatened foreclosure, the Ameses filed suit against Chase and Aldridge in Fulton County Superior Court in December 2012, alleging among other things that Chase had not been able to provide *617 proof of its ownership of the security deed. 1 The parties agreed to temporarily suspend the foreclosure sale, and the Ameses voluntarily dismissed their case on February 25, 2013.
On April 2, 2013, Aldridge sent a letter to the Ameses notifying them that a foreclosure sale was now set for May 7, 2013. The notice identified Chase as the entity with authority to negotiate and modify the terms of the mortgage. The Ameses contacted Chase and Aldridge demanding proof that Chase was in possession of the loan note and security deed and attempting to stop the foreclosure, but the parties were unable to negotiate an agreement. On April 30, 2013, the Ameses again filed suit in Fulton County Superior Court, moving for a temporary restraining order (TRO) to stop the foreclosure and asserting, among other things, that the assignment of the security deed was invalid so Chase did not have the power to initiate the foreclosure.
The foreclosure sale was then cancelled. The Ameses withdrew their TRO motion as to the cancelled sale, but they continued to pursue their case. On July 29, 2013, Aldridge filed a motion to dismiss. On October 9, 2013, the Ameses filed an amended complaint, adding claims related to possible clouds on the title to the property due to security deeds and liens recorded by the property's previous owners.
On November 18, 2013, the superior court granted Aldridge's motion to dismiss as to both Aldridge and Chase, ruling that the amended complaint failed to state a claim. As relevant here, the superior court relied on the Court of Appeals's decision in Montgomery to conclude that the Ameses do not have standing to challenge the assignment of the security deed to Chase. The Ameses filed a motion to set aside or reconsider the dismissal order, and after the superior court denied that motion, they filed a timely notice of appeal to this Court.
On June 6, 2014, we transferred the appeal to the Court of Appeals because this case does not involve any subject matter within the current exclusive or general appellate jurisdiction of this Court. See Ga. Const. of 1983, Art. V, Sec. VI, Par. II-III. On February 27, 2015, the Court of Appeals affirmed the superior court's judgment in an opinion not to be officially reported, relying on Montgomery and Jurden to hold in Division 2(b) that the Ameses lack standing to challenge the validity of the assignment of the security deed to Chase. We granted the Ameses' petition for certiorari to review that holding. 2
2. While the state court proceedings outlined above were playing out, the Ameses were litigating many of the same issues in a parallel case they filed in federal court. On March 28, 2013, a month before the Ameses filed the state case being appealed here, they filed suit against Chase, Aldridge, and others in a federal district court in Florida, invoking diversity and federal question jurisdiction and asking for, among other things, a declaratory judgment that the security deed for the property had not been validly transferred from WaMu to Chase. Three months after the state case was dismissed by the superior court, the district court dismissed the federal case with prejudice, concluding that the Ameses' claims against Chase and Aldridge were precluded by res judicata under Georgia law because the claims were either already decided in the state dismissal order or could have been raised in the state case. See
Ames v. J.P. Morgan Chase Bank, N.A.,
No. 8:13-cv-806-T-23TGW,
On appeal, the Eleventh Circuit affirmed the district court's dismissal, but for a
*618
different reason. See
Ames,
Thus, the Eleventh Circuit beat us to the punch on the question of the Ameses' standing. The preclusive effect in state court of a federal court judgment like the Eleventh Circuit's is determined by federal common law. See
Semtek Intl. Inc. v. Lockheed Martin Corp.,
The Ameses filed their case in federal court in Florida invoking both diversity and federal question jurisdiction; because the holding that we are considering decided claims clearly brought under diversity jurisdiction, we apply Florida preclusion law. Florida law is not incompatible with federal interests in this case; in fact, under either Florida or federal law, the Ameses are barred by issue preclusion from challenging the assignment of the security deed to Chase.
Florida law "bars relitigation of the same issues between the same parties in connection with a different cause of action."
Topps v. State,
*619
Relying on Georgia preclusion law, the Ameses argue that the Eleventh Circuit opinion is not yet final and thus cannot have preclusive effect. In fact, the Eleventh Circuit's judgment became final months ago, after certiorari was not sought and the mandate issued on September 11, 2015. And in any event, as we have just explained, Georgia preclusion law has no place in the analysis of the preclusive effect of a case filed-as the Ameses chose to file it-in a Florida federal court. Under Florida and federal law, a pending appeal does not deprive the lower court's judgment of its preclusive effect. See
Reese v. Damato,
3. (a) Although the Eleventh Circuit's decision resolves the standing question against the Ameses, it does not-and cannot conclusively-answer that question for the many other debtors, secured creditors, and assignees of those security deeds that are affected by this legal issue.
Montgomery
and
Jurden,
the Court of Appeals's decisions relied on by that court in this case (and by the Eleventh Circuit) held that debtors do not have standing to challenge the assignment of their security deeds. See
Montgomery,
(b) The Ameses asked the superior court to determine that the initiation of non-judicial foreclosure proceedings by Chase was wrongful because the assignment of the security deed to Chase by WaMu's receiver (the FDIC) was flawed. To bring such a claim, the Ameses, like any other plaintiff debtors suing in tort (for wrongful foreclosure or the like) or in contract (for a breach of the security deed or the assignment), must establish standing to sue on the ground asserted, which requires showing an injury in fact that was caused by the breach of a duty owed by the defendants to the plaintiffs and that will be redressed by a favorable decision from the court. See, e.g.,
Thompson-El v. Bank of America, N.A.,
(c) To begin with, the security deed affords the Ameses no right to dispute its assignment to a third party. A foreclosing creditor owes certain duties by statute and contract to the debtor, and the debtor may seek relief if those duties are breached. See, e.g.,
Calhoun First Nat. Bank v. Dickens,
*620
Thompson-El,
(d) Nor can the Ameses show that the assignment itself granted them any basis for standing that the security deed did not. The assignment of a security deed is a contract between the deed holder and the assignee. See
Bank of Cave Spring v. Gold Kist, Inc.,
The assignment of a security deed may affect the debtor in some ways (for example, the debtor may be required to direct its payments to or negotiate with a different entity), and the debtor may also be an intended third-party beneficiary of certain parts of the assignment (namely, the parts that transfer any rights and protections given to the debtor under the security deed). The typical assignment does not, however, give the debtor any new rights, and the debtor can vindicate all of the rights it had (and continues to have) under the deed that has been transferred by suing the assignee that claims to have taken ownership of the deed and its corresponding obligations. 5
What the debtor cannot do is dispute the assignment; that may normally be done only by the assignor, because the debtor is not a third-party beneficiary of the assignment
as a whole
and particularly is not intended to directly benefit from the transfer of the power of sale. " '[S]tatus as a third-party beneficiary does not imply standing to enforce every promise within a contract, including those not made for that party's benefit. To the contrary, 'a third party beneficiary ... can only enforce those promises made directly for his benefit.' "
Archer W. Contractors., Ltd. v. Estate of Pitts,
The Ameses contend that the assignment to Chase was invalid because the power of attorney by which the FDIC granted Chase the authority to transfer WaMu's real estate interests expired before the assignment recorded in September 2012 was executed. Thus, the Ameses maintain, WaMu's FDIC receiver remains the true holder of the security deed, with the authority to negotiate with the Ameses and to decide not to foreclose on the property-authority that Chase is supposedly undermining. The deed holder does have discretion as to whether and when to initiate a foreclosure, but it has no duty to forgo or delay foreclosure in favor of negotiating with the debtor. See OCGA § 44-14-162.2(a) ("Nothing in this subsection shall be construed to require a secured creditor to negotiate, amend, or modify the terms of a mortgage instrument."). More importantly, it is the deed holder's right to decide whether to challenge a purported assignment or dispute a foreclosure initiated by an alleged assignee.
If the Ameses believe that the assignment of their security deed to Chase was invalid *621 and that Chase is therefore subverting the FDIC's discretion to decide whether to foreclose, then the Ameses should alert the FDIC to that concern so that the FDIC may intercede to assert any rights it believes it has. In a situation where, for example, the entity attempting to foreclose has no legitimate claim to the security deed, such as where the alleged assignment was fraudulent, calling the foreclosure to the attention of the true deed holder would be expected to lead to remedial action by the true holder. But there is no evidence in this case that the FDIC has any concern about the assignment to Chase, and the Ameses cannot manufacture standing for themselves by asserting a claim that the party with standing has not asserted. 6
(e) It is possible that a debtor could have standing to challenge the validity of an assignment indirectly, if an invalid assignment violated a statutory protection and thereby injured the debtor. Along these lines, the Ameses argue that Chase failed to comply with OCGA § 44-14-162.2(a), which says:
Notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure. Such notice shall be in writing, shall include the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor, and shall be sent by registered or certified mail or statutory overnight delivery....
Although Chase gave the Ameses notice of the planned foreclosure sale as the statute requires, they contend that they did not receive notice from the "secured creditor" because the allegedly invalid assignment means that Chase is not the secured creditor with regard to their security deed.
The statute, however, does not require the party giving notice to prove that it is the secured creditor. On the contrary, the party sending the notice does not have to be a creditor at all, so long as it has been authorized by the secured creditor. See
Carr v. U.S. Bank, NA,
For these reasons, we conclude that the Court of Appeals correctly held that the Ameses lack standing to challenge the assignment of the security deed to Chase. 8
Judgment affirmed.
All the Justices concur.
The complaint and subsequent litigation also included claims about the promissory note for the property, but those claims are not at issue in the case before this Court.
We did not ask the parties to address any of the other issues raised in the Ameses' petition for certiorari, and we render no opinion on the other issues decided by the Court of Appeals.
The Ameses' federal complaint included a few parties (including Chase employees) not named in the state case, as well as a few additional claims (including an alleged violation of the federal Fair Debt Collection Practices Act,
The Ameses argue that because their complaint in state court included claims of wrongful foreclosure and quiet title, while their complaint in federal court included requests for declaratory judgment, the cases involve different causes of action and thus the federal case cannot decide anything in the state case. This difference in claims might prevent
claim
preclusion (or res judicata in the more precise meaning of that term) from barring the Ameses, although we doubt it. While their state-court and federal-court causes of action bear different labels, they are based on the same essential facts and seek to prevent Chase from foreclosing. See
The Florida Bar v. St. Louis,
Thus, the superior court in this case did not reject for lack of standing the Ameses' claims against Chase regarding notice of the planned foreclosure sale, but rather found those claims to be moot because the sale had been cancelled and alternatively denied them on the merits.
We need not address in this case the situation where a plaintiff property owner alleges that she is no longer a debtor because the security deed has been cancelled, so legal title has reverted to the property owner and no one-not the original deed holder or any purported assignee-would have the power of sale. Cf.
Johnson v. Bank of America, N.A.,
We also note that standing is a doctrine involving the
plaintiff's
right to sue for redress of injury. Thus, we do not address the situation in which an alleged assignee comes to court not as a defendant in a wrongful foreclosure or breach of contract case, but rather as a plaintiff seeking to enforce some aspect of the deed against the debtor, where the plaintiff may need to establish its standing to sue on the contract. See OCGA § 9-2-20 ;
LSREF2 Baron, LLC v. Alexander SRP Apts., LLC,
The legislature has indicated its desire to ensure that only the record holders of deeds initiate foreclosure proceedings. OCGA § 44-14-162(b) requires that "[t]he security instrument or assignment thereof vesting the secured creditor with title to the security instrument shall be filed prior to the time of sale in the office of the clerk of the superior court of the county in which the real property is located," and the stated legislative purpose of this provision is to "require a foreclosure to be conducted by the current owner or holder of the mortgage, as reflected by public records," Ga. L. 2008, p. 624, § 1. Because Chase recorded its assignment as required and the Ameses have not brought a distinct challenge under this statute, we need not decide whether OCGA § 44-14-162(b) could ever provide a debtor with standing to challenge a foreclosure based on an unrecorded or facially invalid assignment. See
Duke Galish LLC v. SouthCrest Bank,
Courts applying the law of other jurisdictions have answered the standing question in different ways. Although it appears that all courts have held that plaintiff debtors lack standing to challenge a
voidable
assignment of the security instrument, some courts have indicated-consistent with our conclusion-that plaintiff debtors always lack standing to challenge an assignment when they have failed to prove an injury from the assignment, see, e.g.,
Quale v. Aurora Loan Servs., LLC,
Reference
- Full Case Name
- AMES Et Al. v. JP MORGAN CHASE BANK, N.A., Et Al.
- Cited By
- 33 cases
- Status
- Published