Howard D. HOROWITZ, Plaintiff-Appellant, v. CITIMORTGAGE, INC., Defendant-Appellee, 533 F. App'x 885

PER CURIAM: This is an appeal from the grant of CitiMortgage, Inc.’s (Citi) motion to dismiss Howard D. Horowitz’ (Horowitz) complaint, for failure to state a claim for relief under Fed.R.Civ.P. 12(b)(6). Horowitz asserted claims for wrongful attempted foreclosure and fraud against Citi. We find that the district court properly granted Citi’s motion to dismiss and we affirm the judgment. I. On August 19, 2005, Horowitz executed a promissory note in favor of American Home Mortgage, Inc. (AHM) in the amount of $176,000.

He also executed and conveyed a security deed to real property to AHM, securing the promissory note. Later that same day, AHM assigned its rights under Horowitz’ security deed, and its rights under his promissory note, to ABN AMRO Mortgage Group, Inc. (ABN AMRO). Two years later, in 2007, ABN AMRO merged into Citi. On May 31, 2012, Citi sent Horowitz a letter indicating that he had defaulted on his loan obligations and that a foreclosure sale of his real property was scheduled for July 3, 2012. For four consecutive weeks, Citi published the Notice of Sale Under Power in the local newspaper.

On June 26, 2012, Horowitz filed suit against Citi, asserting claims for attempted wrongful foreclosure and fraud, alleging that Citi lacked the authority to foreclose on his real property because it did not hold Horowitz’ promissory note, nor was it the assignee of his security deed. II. As to Citi’s standing to foreclose on Horowitz’ real property, it is undisputed that Horowitz executed both the security deed and promissory note to AHM.

However, under the terms of the security deed, Horowitz “grant[ed] and convey[ed] to [AHM] and [AHM’s] successors and assigns, with power of sale, [the real property.]” When AHM assigned its rights under Horowitz’ security deed to ABN AMRO, the assignment stated: American Home Mortgage, Inc. hereby sells, assigns, transfers, sets over and conveys unto: ABN AMRO Mortgage Group, Inc. and/or their [sic] respective successors or assigns as their interest may appear ... that certain [security deed] ... together with the real property therein described in said deed, and secured thereby, the notes evidencing said indebtedness having this day been transferred and assigned to the said [ABN AMRO] together with all its rights title and interest in and to the said deed, the property described and indebtedness thereby secured; and [ABN AMRO] is hereby subrogated to all of the rights, powers, privileges and securities vested in [AMH] under and by virtue of the aforesaid mortgage to secure debt.

Horowitz does not dispute the assignment from AHM to ABN AMRO. He does dispute that Citi has standing to foreclose on his real property as a result of its merger with ABN AMRO in 2007. The district court determined that, as a result of the merger, Citi acquired the assets, rights and liabilities of ABN AMRO, including Horowitz’ security deed, with power of sale, and his promissory note. See Birt v. CitiMortgage, Inc., No. 1:11-cv-1473-CC, Order Granting

Summary Judgment, at 5-8 (N.D.Ga. Sept. 26, 2012) (Citi had standing to foreclose on plaintiffs property because, “by merger of ABN AMRO and [Citi], the power to sell and foreclose was vested in the successor, [Citi],” without any further assignment or conveyance). We agree. The district court properly found that Citi had standing, and was thus entitled to exercise the power of sale in Horowitz’ security deed. Therefore, Horowitz cannot state a claim for attempted wrongful foreclosure or fraud. III. We have independently reviewed the record in this appeal, the briefs, and the arguments of counsel.

In a thorough, well-reasoned decision, we find that the district court properly granted Citi’s motion to dismiss for failure to state a claim for relief. Finding no error, we affirm the judgment of the district court. AFFIRMED. . The notice stated: Under and by virtue of the power of sale contained in [the Security Deed] from Howard D. Horowitz to American Home Mortgage, Inc.... said Security Deed being last transferred and assigned to ABN AMRO Mortgage Group, Inc.... [The property will be sold at foreclosure] by CitiMortgage, Inc., successor by merger with ABN AMRO Mortgage Group, Inc.... Pursuant to O.C.G.A.

Section 44-14-162.2 the name of the person or entity who has the full authority to negotiate, amend, or modify the terms of the aforementioned indebtedness is CitiMortgage, Inc.