Montgomery v. Bank of America , 321 Ga. App. 343 ( 2013 )

MILLER, Presiding Judge,

dissenting.

I dissent from the majority’s opinion in this case. Montgomery asserted in his complaint that the assignment from Mortgage Electronic Registration Systems, Inc. (“MERS”) to BAC Home Loans Servicing, Inc. (“BAC”) was invalid because MERS did not hold the promissory note and BAC therefore lacked authority to foreclose. Moreover, Montgomery raised this issue on appeal, albeit without citation to authority.

Montgomery’s claim appears to raise the same question posed in You v. JPMorgan Chase Bank, N.A., No. 1:12-cv-202-JEC-AJB, 2012 U. S. Dist. LEXIS 127461, at *17 (III) (C) (N.D. Ga. Sept. 7, 2012), inquiring as to whether or not a security deed holder who does not also hold the promissory note, or have an interest in the underlying debt obligation, can validly institute foreclosure proceedings. Because there are no clear controlling precedents deciding this issue, the United States District Court for the Northern District of Georgia certified this question to the Supreme Court of Georgia. Id.

The Supreme Court of Georgia’s decision in You v. JP Morgan Chase Bank, N.A., Case No. S13Q0040 (docketed Sept. 13, 2012) will be dispositive of the question of whether Montgomery’s complaint asserts a viable claim for relief against BAC. Accordingly, the Court should remand this case with instructions that any further proceedings in this matter should be stayed until the Supreme Court of Georgia has rendered its decision in You, supra, as we did in U. S. Bank, N.A. v. Phillips, 318 Ga. App. 819, 826 (4) (734 SE2d 799) (2012).