Roper v. Bank of America
ORDER granting Defendant Bank of America's 13 Motion to Dismiss, and Plaintiff's TRO 2 is DISMISSED, as MOOT. The Clerk is directed to close this case. Signed by Judge Richard W. Story on 4/4/12. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
BANK OF AMERICA, N.A.,
CIVIL ACTION NO.
This case comes before the Court on Defendant Bank of America, N.A.’s
(“BOA”) Motion to Dismiss  and Plaintiff’s Motion for a Temporary
Restraining Order (“TRO”) . After a review of the record, the Court enters
the following order.
On September 2, 2011, Plaintiff Robert Roper, pro se, filed his
Complaint in Cobb County Superior Court, seeking a TRO based on a
“potential action for quiet title and wrongful foreclosure” of his property at 69
Vinings Lake Dr., Mableton, Georgia 30126. Dkt. No.  at 10. In support of
his TRO request, Plaintiff blanketly asserts without factual support that he “was
not served with notice pursuant to O.C.G.A. 44-14-162 et esq. [sic],” that
“Defendant is attempting to obtain ownership in the Subject Property and be
unjustly enriched in its ownership sue [sic] to misrepresentation of title,”
“Defendant has performed RESPA violations,” and that Plaintiff is “unsure as
to whether the lender still possesses the original debt instrument” and “wants
proof of that authority,” i.e. he wants BOA to “produce the note.” Id. at 10-11.
Following those fact-less statements, Plaintiff then proceeds to list almost three
pages worth of case citations without explaining how each citation would be
relevant. Id. at 11-14.
When he initially filed his complaint, this action was styled against “A
Parcel of Land Being Known as 69 Vinings Lake Drive Mableton Georgia
30126 and as Their Interests May Appear Bank of America.” Id. at 10. As
“Bank of America” does not exist, Plaintiff moved thirteen days later to join
Bank of America, N.A. and McCalla Raymer, LLC. Id. at 15. BOA then
removed the action to this Court, and this Court granted Plaintiff’s motion to
join insofar as it moved to substitute BOA for “Bank of America” but denied
joining McCalla Raymer, LLC. Dkt. No. .
On November 7, 2011, BOA moved to dismiss Plaintiff’s Complaint for
failing to state a claim upon which relief may be granted. Dkt. No. . The
Court will consider each claim in turn.
A. Legal Standard
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a
“short and plain statement of the claim showing that the pleader is entitled to
relief.” While this pleading standard does not require “detailed factual
allegations,” “labels and conclusions” or “a formulaic recitation of the elements
of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. ----, 129 S. Ct.
1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). In order to
withstand a motion to dismiss, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Id. (quoting Twombly, 550 U.S. at 570). A complaint is plausible on its face
when the plaintiff pleads factual content necessary for the court to draw the
reasonable inference that the defendant is liable for the conduct alleged. Id.
It is important to note that while the factual allegations set forth in the
complaint are to be considered true at the motion to dismiss stage, the same
does not apply to legal conclusions set forth in the complaint. Sinaltrainal v.
Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009) (citing Iqbal, 129 S. Ct. at
1949). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. The
court does not need to “accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555.
Because Plaintiff is acting pro se, his “pleadings are held to a less
stringent standard than pleadings drafted by attorneys and will, therefore, be
liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998). “This leniency, however, does not require or allow courts to rewrite
an otherwise deficient pleading in order to sustain an action. ” Thomas v.
Pentagon Fed. Credit Union, 393 Fed. App’x 635, 637 (11th Cir. 2010).
B. Wrongful Foreclosure
Defendant argues that Plaintiff has failed to state a claim for wrongful
foreclosure as a foreclosure sale has not yet occurred. In Georgia, a claim for
attempted wrongful foreclosure only exists when a foreclosure action was
commenced, but not completed, and where the plaintiff has demonstrated that
the defendant “knowingly published an untrue and derogatory statement
concerning the plaintiff[’s] financial conditions and that damages were
sustained as a direct result.” Sale City Peanut & Milling Co. v. Planters &
Citizens Bank, 130 S.E.2d 518, 520 (1963). Here, Plaintiff has alleged that he
only has a “potential action” for wrongful foreclosure because the sale has not
yet occurred. See Cmpl., Dkt. No.  at 10. Further, he makes no allegations
that defamatory statements were published about him. See id. at 10-14. Thus,
Plaintiffs’ claim for wrongful foreclosure is DISMISSED.
C. Produce the Note
Defendant next moves to dismiss Plaintiff’s claim to “produce the note.”
Plaintiff essentially alleges in his Complaint that Defendant does not have
standing to foreclose upon the Security Deed because BOA was not in
possession of the original Note. Id. at 10. Plaintiff thus requests this Court to
order Defendant to provide proof of its authority to foreclose upon Plaintiff’s
property by submitting the Note for inspection. Id. at 10-11. Defendant moves
to dismiss on the basis that Georgia law does not require a foreclosing party to
prove its possession of the original Note. Defs.’ Mot. to Dismiss, Dkt. No. 
The Court agrees that Plaintiff’s “produce the note” theory is unavailing
under Georgia law. Georgia law does not require a lender to produce the
original promissory note, even when the lender is taking affirmative action such
as commencing foreclosure proceedings. See, e.g., Watkins v. Beneficial,
HSBC Mortg., No. 1:10-CV-1999-TWT-RGV, 2010 WL 4318898, at *4 (N.D.
Ga. Sep. 2, 2010) (“[N]othing in Georgia law requires the lender commencing
foreclosure proceedings to produce the original note.”); Hill v. Saxon Mortg.
Servs., Inc., No. 1:09-CV-1078, 2009 WL 2386057, at *1 (N.D. Ga. May 14,
2009) (rejecting plaintiff’s demand that lender produce original promissory
note). Accordingly, any and all claims arising out of Defendant’s alleged
failure to produce the Note fail as a matter of law.
D. Unjust Enrichment and Fraud
Plaintiff next argues that “Defendant is attempting to obtain ownership in
the Subject Property and be unjustly enriched in its ownership sue [sic] to
misrepresentation of title.” First, Plaintiff cannot bring a claim of unjust
enrichment because his claim clearly arises out of a mortgage contract. See
Simpson v. Countrywide Home Loans, No. 1:10-CV-224-CAM-ECS, 2010 WL
3190693, at * 7 (April 26, 2010 N.D. Ga.) (“In Georgia, unjust enrichment is an
equitable concept and applies when as a matter of fact there is no legal contract.
Thus, where as here, Plaintiff's claim derives from a loan contract, unjust
enrichment does not apply.”) (internal quotations and citations omitted).
And, to the extent Plaintiff attempts to allege a claim for fraud through a
“misrepresentation of title,” that claim is dismissed as Plaintiff does not
plausibly allege any facts to support a misrepresentation. See Parrish v. Jackson
W. Jones, P.C., 629 S.E.2d 468, 471 (Ga. Ct. App. 2006) (stating that under
Georgia law, Plaintiff must plead the following five elements: “(1) that the
defendant made the representations; (2) that at the time he knew they were
false; (3) that he made them intending to deceive the plaintiff; (4) that the
plaintiff justifiably relied on the representations; and (5) that the plaintiff
sustained the alleged loss and damage as the proximate result of their having
been made.”). Therefore, Plaintiff’s claims for unjust enrichment and fraud are
Defendant next moves to dismiss Plaintiff’s claim that “Defendant has
performed RESPA violations.” Dkt. No.  at 11. Plaintiff has not alleged one
fact to explain how Defendant has violated RESPA, or pointed the Defendant to
any provision of RESPA which might even apply. As Plaintiff has not plausibly
alleged any violation of RESPA, and this Court is not required to take
Plaintiff’s legal conclusions as true, Plaintiff’s RESPA claim is DISMISSED.
F. Quiet Title
Plaintiff additionally alleges that he has a “potential action for quiet
title.” First, it appears that Plaintiff is not actually bringing a claim for quiet title
as he himself acknowledges through his use of “potential” that any quiet title
claim is not ripe. See Dkt. No.  at 10. However, regardless, Plaintiff has not
properly brought an action to quiet title. The Georgia Quiet Title Act, O.C.G.A.
§ 23-3-60 et seq., provides specific procedural prerequisites to pleading a quiet
With the petition [to quiet title] there shall be filed (1) a plat of
survey of the land, (2) a copy of the immediate instrument or
instruments, if any, upon which the petitioner's interest is based,
and (3) a copy of the immediate instrument or instruments of
record or otherwise known to the petitioner, if any, upon which
any person might base an interest in the land adverse to the
O.C.G.A. § 23-3-62(c) (2011); see also GHG, Inc. v. Bryan, 566 S.E.2d 662,
662 (Ga. 2002) (“A petition [to quiet title] is subject to dismissal only when on
the face of the pleadings it appears that it is in noncompliance with OCGA §
Here, Plaintiff has failed to properly plead a claim for quiet title relief
under Georgia law because Plaintiff failed to attach to the Complaint a plat of
survey of the land, as required by the statute. See Joseph v. CitiMortgage, No.
1:11-CV-2768-TWT, 2011 WL 5156817, at *2 (N.D. Ga. Oct. 27, 2011)
(dismissing quiet title action for plaintiff’s failure to file plat of survey of the
land); Mann v. Blalock, 690 S.E.2d 375, 376 (Ga. 2010) (holding quiet title
action legally defective for plaintiff’s failure to file plat of survey). Plaintiff’s
claim for quiet title thus fails as a matter of law.
As all of Plaintiff’s substantive claims have been dismissed, Plaintiff’s
request for TRO  is thus MOOT.
As a result of the foregoing, Defendant BOA’s Motion to Dismiss  is
GRANTED and Plaintiff’s TRO  is DISMISSED, as MOOT. The Clerk is
directed to close this case.
SO ORDERED, this 4th day of April, 2012.
RICHARD W. STORY
United States District Judge