Bush v. Bank of New York Mellon

720 S.E.2d 370, 313 Ga. App. 84, 2011 Fulton County D. Rep. 3875, 2011 Ga. App. LEXIS 1076
CourtCourt of Appeals of Georgia
DecidedNovember 30, 2011
DocketA11A1394
StatusPublished
Cited by35 cases

This text of 720 S.E.2d 370 (Bush v. Bank of New York Mellon) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bush v. Bank of New York Mellon, 720 S.E.2d 370, 313 Ga. App. 84, 2011 Fulton County D. Rep. 3875, 2011 Ga. App. LEXIS 1076 (Ga. Ct. App. 2011).

Opinion

Blackwell, Judge.

The court below concluded that Dwayne and Beverly Bush fail in their amended complaint to state any claim upon which relief can be granted,1 and the court awarded judgment on the pleadings to one defendant and dismissed the others. The Bushes appeal, contending that they, in fact, state several claims upon which relief can be granted. Although we review de novo a determination that a pleading fails to state a claim upon which relief can be granted, Sherman v. Fulton County Bd. of Assessors, 288 Ga. 88, 89 (701 SE2d 472) (2010), we find ourselves unable in this case to undertake such a review because we cannot ascertain the precise nature of the claims that the Bushes assert, which we must do, of course, before we can determine whether relief can be granted upon those claims. The court below, we think, also was in no position to determine the extent to which the Bushes state a claim upon which relief can be granted, and before ruling upon the motions for judgment on the pleadings and to dismiss, it should have, we think, required the Bushes to replead and provide a more definite statement of their claims. We vacate the judgments below and remand for the court to do just that.2

Although the pleadings in this case are difficult in many respects to understand, we can discern that the Bushes borrowed nearly $800,000 from First Horizon Home Loan Corporation in February [85]*852006, and in connection with this loan, they gave a promissory note and a security interest in their DeKalb County home to the lender. Several years later, in the second half of 2009, the Bushes filed a number of papers, some of which purport to cancel the security interest in their home, and some of which are utterly nonsensical, with the clerk of the Superior Court of DeKalb County and apparently sent copies of some of these papers to First Horizon, among others.3 Around the same time, the Bushes defaulted, it seems, on their obligation to repay the loan, and in January 2010, the Bank of New York Mellon — to which the security interest in their home had been assigned in the meantime — notified the Bushes that it intended to foreclose upon the security interest.4 The Bushes then sent a letter to First Horizon, in which they offered to pay more than $800,000 to First Horizon upon presentment of their original promissory note, and the Bushes allegedly deposited that amount with an “escrow agent” and notary public, who informed First Horizon that she was in receipt of those funds and would pay them over to First Horizon upon presentment of the original note.5 First Horizon apparently did not accept this offer, and on February 23, 2010, the “escrow agent” executed an affidavit, in which she averred that First Horizon had not accepted the offer, that the chief executive officer of First Horizon “is now in DEFAULT without recourse,” and that First Horizon and its agents had “agreed, by their actions, to Treble Damages separately and equally totaling $2,340,000.00.” The next day, the Bushes, now represented by counsel, filed this lawsuit, naming the Bank of New York, its law firm, an agent of its law firm, the servicer of their loan, and a lawyer for the servicer as defendants.6

[86]*86In their original complaint, the Bushes alleged that First Horizon had engaged in unspecified “(fjraudulent activities,” that First Horizon had accepted a settlement and satisfaction of their loan pursuant to the terms of an unspecified notice dated September 3, 2009, that the Bushes had disputed their default in writing to First Horizon based on this settlement and satisfaction of their loan, that they subsequently offered more than $800,000 to First Horizon in satisfaction of their loan through their “escrow agent,” that the assignment of the security interest in their home to the Bank of New York was not of record,7 and that the Bushes had disputed in writing that they owed any obligation to the Bank of New York. Although the nature of the claims asserted in the original complaint is difficult to understand,8 the original complaint appears to assert that one or more of the defendants violated the Fair Debt Collection Practices Act, 15 USC § 1692 et seq., the Real Estate Settlement Procedures Act of 1974, 12 USC § 2601 et seq., the Georgia Commercial Code, OCGA § 11-3-603, the statutory requirement that an assignment of a security deed must be recorded before the assignee can exercise its power of sale, OCGA § 44-14-162 (b), and the settlement and satisfaction to which First Horizon allegedly had agreed. In their original complaint, the Bushes sought an injunction against the foreclosure of their home and an order compelling First Horizon, which was not named as a defendant, to produce the original promissory note and accept their tender of $800,000 in satisfaction of the loan. A few days later, the court below entered a temporary restraining order, which enjoined the defendants from foreclosing the security deed.

Each of the named defendants filed an answer to the original complaint, and the Bank of New York counterclaimed, seeking an order striking the various papers that the Bushes had filed in the real property records of DeKalb County, an injunction against the Bushes filing any additional papers that purport to unilaterally cancel their security deed, a declaratory judgment that the security deed remains valid and that the Bank of New York has a right to foreclose it, and litigation expenses under OCGA §§ 9-15-14 and 13-6-11. In addition, the defendants other than the Bank of New York moved to dismiss the complaint for failure to state a claim upon which relief can be [87]*87granted, contending that any claims asserted in the original complaint were properly directed to the Bank of New York, not the other defendants. In response, the Bushes filed a “Motion for Declaratory Judgment,” in which they sought — in addition to the relief for which they prayed in their original complaint — a declaratory judgment that they have clear title to their home, that the rejection of their tender of more than $800,000 through an escrow agent amounts to a violation of OCGA § 11-3-603 by the servicer and its lawyer, and that the lawyer for the servicer has engaged in “a scheme or artifice to deprive another of the intangible right of honest services” under 18 USC § 1346 and has violated OCGA § 10-5A-6, which pertains to commodity contracts and options. The Bushes also amended their complaint.

The amended complaint, like the original complaint, is difficult to understand. It consists of 133 numbered paragraphs and asserts claims in 17 distinct counts,9 and it incorporates 60 paragraphs of the original complaint, as well as seven paragraphs of the “Motion for Declaratory Judgment” that the Bushes had filed earlier, so it also asserts, it seems, whatever claims were asserted in those earlier filings.

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Cite This Page — Counsel Stack

Bluebook (online)
720 S.E.2d 370, 313 Ga. App. 84, 2011 Fulton County D. Rep. 3875, 2011 Ga. App. LEXIS 1076, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bush-v-bank-of-new-york-mellon-gactapp-2011.