Larose v. Bank of America, N.A.

McMillian, Judge. Carlo Larose filed a complaint for wrongful attempted foreclosure and related claims against Bank of America, N.A. and others. The defendants moved to dismiss the complaint for failure to state a claim. The trial court granted the motions to dismiss, and Larose appeals pro se. We affirm for the reasons set forth below. Under OCGA § 9-11-12 (b) (6), a motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party [466] who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor. (Citation and punctuation omitted.) Anderson v. Daniel, 314 Ga. App. 394, 395 (724 SE2d 401) (2012). So construed, the pleadings show that on October 14, 2005, Larose obtained a mortgage loan from America’s Wholesale Lenders, executing a promissory note in the principal amount of $120,000 and a deed securing the debt. The security deed provided that Mortgage Electronic Registration Systems, Inc. (“MERS”) was authorized to act as “nominee” on behalf of America’s Wholesale Lenders and had “the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to releasing and cancelling this Security Instrument.” The note provided that it was transferable by the lender, America’s Wholesale, but made no mention of MERS. In 2011, MERS purportedly transferred and assigned both the security deed and the note to Bank of New York Mellon. After Larose allegedly defaulted on the loan and a nonjudicial foreclosure sale was initiated, but prior to actual foreclosure, Larose filed the instant action. As the trial court noted in its order, Larose “contends that the Assignment was invalid because MERS was never the owner and holder of the Note. Therefore, according to [Larose], MERS was without authority to execute an assignment to [Bank of New York Mellon] and, following this logic, [the bank] was without authority to foreclose.” In dismissing the complaint, the trial court went on to hold that it was not persuaded by Larose’s “insistence that the foreclosing entity must be a holder in due course and produce the Note before it can carry out the foreclosure.” The trial court further found that Larose had not cited “any Georgia statute or decision interpreting Georgia law that precludes the holder of the security deed from proceeding with a foreclosure sale simply because it does not also possess the promissory note.” On appeal, Larose asserts that the trial court erred (1) in dismissing his complaint for wrongful foreclosure based upon a finding that an assignment of the note, along with the security deed, was unnecessary for foreclosure; and (2) in ruling as a matter of law that MERS’ assignment of the security deed was valid. With regard to Larose’s first enumeration, we are bound by the reasoning in this Court’s case of Montgomery v. Bank of America, 321 Ga. App. 343, 345 (2) (740 SE2d 434) (2013), issued today on this very issue. Montgomery holds that nothing in Georgia law requires that an assignee of a security deed granting the right to foreclose must also hold the note before initiating foreclosure proceedings. See, e.g., OCGA § 44-14-64 (b) (“Transfers of deeds to secure debt. .. shall be [467] sufficient to transfer the property therein described and the indebtedness therein secured, whether the indebtedness is evidenced by a note or other instrument...”); LaCosta v. McCalla Raymer, LLC, 2011 WL 166902, at *5 (N.D. Ga. Civil Action No. 1:10-CV-1171-RWS, decided January 18, 2011) (finding no Georgia statute or decision interpreting Georgia law that precludes the holder of security deed from proceeding with a foreclosure sale simply because it does not also possess the promissory note). See also Menyah v. BAC Home Loans Servicing, L.P., 2013 WL 1189498 (N.D. Ga. Civil Action No. 1:12:CV-0228-RWS, decided March 21, 2013) (where, as here, security deed explicitly grants MERS and its successors and assigns the power of sale, successor by merger has the authority to conduct the foreclosure sale). Accordingly, the trial court properly dismissed Larose’s wrongful foreclosure claim on this ground.1 We also find no merit to Larose’s argument that the assignment by MERS to the Bank of New York Mellon was invalid. The security deed signed by Larose granted and conveyed Larose’s property to MERS, its successors and assigns, along with the power of sale, stating that “if necessary to comply with law or custom, MERS... has the right to exercise: any or all of [the interests granted to MERS by Larose], including but not limited to, the right to foreclose and sell the Property. ...” Thus, we find persuasive the cases from the Northern District of Georgia holding that such language grants MERS the power of assignment: [Larose] unequivocally authorized MERS’s involvement in the transaction by executing a security deed in its favor. Additionally, the Deed recognizes MERS’s right of assignment by granting power of sale “to the successors and assigns of MERS.” This right of assignment is in accord with Georgia law. See OCGA § 44-14-64 (authorizing transfer of security deeds by way of assignment). Alexis v. Mtg. Electronic Registration Systems, Inc., 2012 WL 716161, at *3 (I) (B) (1) (N.D. Ga. Civil Action No. 1:11-CV-01967-RWS, decided March 5, 2012). See also Menyah, 2013 WL 1189498 (because the borrower was not a party to the assignment, he has no standing to contest its validity); Adams v. Mtg. Electronic Registration Systems, Inc., 2012 U. S. Dist. LEXIS 54000 (N.D. Ga. Case No. 1:11468 CV-04263-RWS, decided April 16, 2012). Accordingly, Larose granted MERS the full power to assign the property to a third party such as the Bank of New York Mellon, and his argument that the assignment was invalid is without merit. The dissent would remand this case because this Court previously declined to decide the issue raised in Larose’s first enumeration of error in U. S. Bank, N. A. v. Phillips, 318 Ga. App. 819 (734 SE2d 799) (2012). In Phillips, this Court remanded the issue to the trial court pending a decision by our Supreme Court on the certified question of “whether a [security] deed holder who does not also hold the note, or have an interest in the underlying debt obligation, can validly institute foreclosure proceedings.” (Citation and punctuation omitted.) Id. at 826 (4). But Phillips is not binding on this issue, as it reflects only a remand to await a decision from the Supreme Court, not a legal holding. Montgomery, however, is binding precedent. Additionally, the Phillips decision addressed the other enumerations of error raised by the appellant, but the dissent, without justification, chooses not to address Larose’s second enumeration of error regarding the validity of MERS’ assignment of the security deed, an issue that does not turn on any question certified to the Supreme Court. You v. JPMorgan Chase Bank, N.A., 2012 WL 3904363, at *6, *9 (N.D. Ga. Civil Action No. 1:12-CV-202-JEC-AJB, decided September 7, 2012). Moreover, we are obligated by statute to decide the case under the current law even though the Supreme Court of Georgia may at some point address the issue raised in Larose’s first enumeration of error. As noted by our Supreme Court, “[t]he General Assembly has made it clear that all points raised in an appeal are to be considered by the appellate court.” Felix v. State, 271 Ga. 534, 538 (523 SE2d 1) (1999). This Court, therefore, is bound by the statutory mandate that the Appellate Practice Act is to be “liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein.” (Emphasis supplied.) OCGA § 5-6-30. See also OCGA § 5-6-48 (b) (appellate courts may not refuse to consider any enumeration of error, except under three exceptions not applicable here: where the appellant failed to file a timely notice of appeal; where the decision or judgment is not then appealable; or where the questions presented have become moot); Bates v. Snelling, 172 Ga. App. 448 (1) (323 SE2d 179) (1984) (“the policy in this state is that appellate courts should reach the merits of appeals whenever possible” [Cits.]). Therefore, we see no compelling reason, and the dissent offers none, why we should ignore the legislature’s mandate to decide every case on the merits. Instead, we must reach the merits of Larose’s [469] appeal, and finding no error by the trial court, we affirm the order dismissing Larose’s complaint for failure to state a claim. Judgment affirmed with direction. Barnes, P. J., Ray and Branch, JJ., concur. Doyle, P. J., concurs fully and specially. Miller, P. J., and McFadden, J., dissent. Footnotes [1] This Court, however, is not required to consider Larose’s claim that the foreclosure notice was insufficient as that claim was neither raised nor ruled upon below. See Designs Unlimited, Inc. v. Rodriguez, 267 Ga. App. 847 (601 SE2d 381) (2004).