Mortensen et al v. Bank of America NA et al

Filing 68

ORDER granting 45 Motion for Summary Judgment; finding as moot 50 Motion; finding as moot 67 Motion to Quash. Ordered by Judge Clay D. Land on 11/17/2011.(aaf)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
ROBERT MORTENSEN and
LINDA MORTENSEN,

*
*

Plaintiffs,
*
vs.

CASE NO. 3:10-CV-13 (CDL)
*

BANK OF AMERICA, N.A.,
*
Defendants.
*
O R D E R
This action arises from Bank of America, N.A.’s (“BOA”)
foreclosure

of

Plaintiffs

Robert

and

Linda

Mortensen’s

(“the

Mortensens”) property located in Greene County, Georgia (“the
Property”).

The Mortensens asserted Georgia state law claims, a

claim under the Fair Credit Reporting Act, and a Florida state
law claim based on their default on the mortgage to the Property
held by BOA and the resulting foreclosure.

Now pending before

the

N.A.

Court

is

Defendants

Bank

of

America,

and

Bank

of

America, Trustee’s Motion for Summary Judgment (ECF No. 45). 1

1

Out of an abundance of caution, Defendant BOA listed as Defendant and
party to its Motion for Summary Judgment “Bank of America, Trustee.”
Plaintiffs named Bank of America, Trustee, which is an unknown party,
as a defendant in their original Complaint.
Plaintiffs, however,
appear to have dropped any claims against this entity.
See Am.
Compl., ECF No. 42.
In their most recent Amended Complaint,
Plaintiffs assert no claims and make no allegations against Bank of
America, Trustee. Id. The Court, therefore, deems any claims against
Defendant Bank of America, Trustee abandoned.
Further, because

Also pending before the Court are Plaintiffs’ Motion to Allow
Late Response and Filing of Requests for Admissions (ECF No. 50)
and Defendant Bank of America’s Motion to Quash Subpoena to
Testify at Deposition and Motion for Protective Order (ECF No.
67).

For the following reasons, the Court grants BOA’s Motion

for Summary Judgment as to all claims.

The Court did not rely

on Defendant’s requests for admission which it seeks to have
deemed admitted for Plaintiffs’ failure to respond, and thus
Plaintiffs’ motion to allow late responses is moot.

Defendant’s

motion to quash is also moot in light of this Order.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P.

56(a).

Fed. R.

In determining whether a genuine dispute of

material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party=s favor.
U.S. 242, 255 (1986).

Anderson v. Liberty Lobby, Inc., 477

A fact is material if it is relevant or

necessary to the outcome of the suit.

Id. at 248.

A factual

Plaintiffs never identified Defendants John Does 1 to 10, the Court
also deems any claims against those defendants abandoned.
See
Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (per curiam)
(“As a general matter, fictitious-party pleading is not permitted in
federal court.”).

2

dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.

Id.

FACTUAL BACKGROUND
In accordance with Local Rule 56, BOA filed a statement of
material facts to which it contends there is no genuine dispute.
Defs.’

Mot.

for

Defs.’

Statement

Summ.
of

J.

[hereinafter

Material

Facts

BOA’s

as

to

MSJ]

Which

Attach

There

Is

2,
No

Genuine Issue to Be Tried, ECF No. 45-2 [hereinafter BOA’s SMF].
In

compliance

with

Local

Rule

56,

each

fact

supported by a specific citation to the record.
56.

statement

is

See M.D. Ga. R.

Local Rule 56 also required the Mortensens to file their

own separate statement of material facts and respond to BOA’s
statement

of

material

facts.

Id.

The

Mortensens,

who

are

represented by counsel, did not file a statement of material
facts

or

respond

Accordingly,

BOA’s

to

BOA’s

statement

statement
of

of

undisputed

deemed admitted under Local Rule 56.

material
material

facts.

facts

is

The Court has reviewed

BOA’s citations to “determine if there is, indeed, no genuine
issue of material fact.”

Reese v. Herbert, 527 F.3d 1253, 1269

(11th Cir. 2008) (internal quotation marks omitted).
the Court’s review of

BOA’s

Based on

statement of material facts

3

and

record citations, the material undisputed facts, viewed in the
light most favorable to the Mortensens, are as follows.2
The Mortensens are licensed real estate agents who operate
their own real estate companies.
ECF

No.

49

[hereinafter

R. Mortensen Dep. 18:1-19:21,

Mortensen

Dep.].

The

Mortensens’

company, the Mortensen Team, handles the purchase and sale of
commercial and

residential properties, including short sales.

Id. at 32:11-19.
The

Mortensens

obtained

real

property

located

in

Greensboro, Greene County, Georgia (“the Property”) for value by
warranty deed on February 16, 2007.
Deed, ECF No. 45-3.

BOA’s SMF Ex. A, Warranty

The warranty deed was filed and recorded on

March 1, 2007, in Deed Book 875, pages 116-17, Green County
Records,

Georgia.

BOA

loaned

the

Mortensens

purchase the Property (“the mortgage”).3
34:8;

id.

Ex.

[hereinafter

3,

Sec.

Security
Deed].

Deed,
To

ECF

secure

$417,000.00

to

Mortensen Dep. 33:18No.
the

49-4

at

loan,

11

of

29

Plaintiffs

executed and delivered a security deed (“the security deed”) to

2

Linda Mortensen attended Robert Mortensen’s deposition, and she
agreed with his testimony. L. Mortensen Dep. 5:7-22, ECF No. 48.
3
The Mortensens obtained a second loan in the form of a line of credit
on the Property in the amount of $66,750.00 from BOA on February 16,
2007, and BOA secured payment of the loan by executing a security deed
the same day.
Mortensen Dep. 33:25-34:4, 71:16-18; BOA’s SMF Ex. C,
Security Deed, ECF No. 45-5. This security deed was recorded on March
1, 2007 in Deed Book 875, pages 137-48, Green County Records, Georgia.
On April 20, 2009 BOA assigned this security deed to United Guaranty
Residential Insurance Company of North Carolina.
BOA’s SMF Ex. D,
Assignment of Security Deed, ECF No. 45-6.

4

the Property in favor of BOA on February 16, 2007.
33:18-24; Sec. Deed.

The security deed lists the Mortensens as

“Borrower” and Bank of America, N.A. as “Lender.”
11 of 29.
2007

Id. at

Sec. Deed at

The security deed was filed and recorded on March 1,

in

Deed

Book

Georgia.

Id.

875,

pages

118-36,

Green

County

Records,

BOA never assigned the loan or security deed.

BOA’s SMF Ex. E, Howe Aff. ¶ 3, ECF No. 45-7.
The

security

Mortensens

to

pay

deed
both

and

principal

secured by the Property.
at 12 of 19.

promissory
and

note

interest

on

the

the
loan

Mortensen Dep. 65:23-66:6; Sec. Deed

The Mortensens understood that the security deed

put the responsibility on them to pay the loan.
41:2-4.

required

Mortensen Dep.

Under the terms of the security deed, BOA has the right

to collect monthly payments of principal and interest from the
Mortensens.

Mortensen Dep. 66:2-6.

If the Mortensens did not

pay a monthly payment, then that payment was still owed to BOA.
Id.

at

66:7-10.

Nothing

in

the

security

deed

entitled

Mortensens to a loan modification or principal reduction.
at 41:7-13.

the
Id.

The Mortensens understood that under the security

deed, BOA had a right to foreclose on the
defaulted on the loan.

Property if they

Id. at 41:14-18.

The Mortensens made their last mortgage payment to BOA in
September 2008.

Id. at 56:5-7; Howe Aff. ¶ 9.

In mid-October

2008, the Mortensens contacted BOA to discuss a reverse mortgage

5

and loan modification with BOA.

Mortensen Dep. 51:8-22.

A

licensed mortgage broker at BOA told Mr. Mortensen to call a
different department at BOA to discuss his options.
52:6-10, 53:6-15.
told

by

a

forbearance

BOA

Id. at

Mr. Mortensen called the department and was
representative

programs

and

you

that

have

“[w]e

to

mortgage before we can talk to you.”

be

don’t

have

delinquent

Id. at 53:17-25.

on

any
your

BOA does

not offer modification or forbearance options to borrowers who
are current on their mortgages.

Howe Aff. ¶ 17.

Instead, BOA

considers actions taken on current mortgages to be refinances.
Id.

The Mortensens did not attempt to refinance the Property.

Mortensen Dep. 55:17-56:1.
The Mortensens did not pay the mortgage payment to BOA in
October 2008 and then “waited for 60 days for it to be in
default.”
from

the

Id. at 58:22-25.
time

they

stopped

They could have paid the mortgage
paying

present, but they chose not to pay.

in

October

2008

to

the

Id. at 63:25-64:13.

In 2008, the Mortensens owned seven properties, including
the Property, and the mortgages on those properties are now in
various stages of default and modification.

Id. at 23:20-32:2.

After the Mortensens made attempts to discuss forbearance and
modification options with the banks holding the mortgages on
their other properties as they did with BOA, the Mortensens also
stopped

paying

the

mortgages

on

6

those

properties

in

October

2008.

Id. at 59:1-9.

Those banks gave the Mortensens the same

response as BOA: a borrower cannot receive a loan modification
if

the

mortgage

is

paid

current.

Id.

at

59:10-13.

Mr.

Mortensen said that he “had to default on all the mortgages”
because

“[i]t

modification.”

was

that

or

not

Id. at 65:13-21.

not his only option.

talk

to

them

about

a

He admits that defaulting was

Id. at 65:21-22.

BOA never promised the Mortensens a loan modification or
principal

reduction

57:21-58:3, 61:9-11.

if

they

defaulted

on

the

loan.

Id.

at

Despite their conversations with BOA and

other banks, the Mortensens believed they were entitled to a
loan modification when the Property mortgage went into default
in October 2008.

Id. at 59:14-17.

The Mortensens believed they

were entitled to a loan modification because of “the chain of
events” that occurred prior to them defaulting on the loan.
at 59:18-22.

These events included the receipt of a Wall Street

Journal article via telefax from a banker at BOA.
22.

Id.

Id. at 59:20-

The article states that “If you are in deep trouble on your

mortgage, the new housing rescue package may offer you an almost
unbelievable

second

chance.”

Mortensen

Dep.

Ex.

2,

Brett

Arends, Rescue Package Contains Loophole that Could Help You
Keep Profits, Wall St. J., July 28, 2008, ECF No. 49-4, at 8 of
29 [hereinafter Article].

The article further gives advice on

how to “keep your home, slash your loan balance—and refinance at

7

cheaper rates” and lists some requirements for achieving these
goals.

Id.

Mr. Mortensen thought that this article applied to

all of his properties, but he acknowledged that the article says
the package “may” help and that some people will not be eligible
for the program.

Mortensen Dep. 59:23-60:8.

In addition to the article, Mr. Mortensen’s expectations of
receiving

a

modification

relied

on

three

2008

speeches

by

President George W. Bush discussing TARP (Troubled Asset Relief
Program) monies.

Id. at 60:12-17.

Mr. Mortensen stated that

those speeches coupled with the article gave him expectations of
receiving a modification after default and provided him with
instructions as to how to achieve that result.
61:4.

Id. at 60:15-

Finally, because of his “strong relationship with Bank of

America,” he “expected a little help from [his] friends.”

Id.

at 61:5-8.
After

allowing

the

mortgages

to

go

into

default,

Mortensens hired a law firm to negotiate the mortgages.
66:17-25.

the

Id. at

The firm was not able to obtain a modification from

BOA for the mortgage on the Property.

Id. at 67:14-24.

BOA

never approved the Mortensens for a mortgage modification.

Id.

at 82:10-17.
Because
mortgage,

of

BOA

the

Mortensens’

retained

the

law

failure
firm

of

to

pay

McCalla

the

Property

Raymer,

LLC

(“foreclosure firm”) to institute foreclosure proceedings on the

8

Property pursuant to the security deed.

Howe Aff. ¶ 10.

In May

of 2009, BOA stayed the foreclosure proceedings on the Property
for thirty days in order to review the loan for a modification.
Mortensen

Dep.

76:7-10;

Howe

Aff.

¶

11.

BOA

informed

the

Mortensens that the hold was not permanent or a promise of a
loan modification.

Howe Aff. ¶ 12.

On November 4, 2009, the foreclosure firm, on behalf of
BOA, sent the Mortensens a notice that because of the unpaid
mortgage

debt,

the

Property

was

recommended

for

foreclosure.

BOA SMF Ex. H, Letter from McCalla Raymer, LLC, to Linda &
Robert Mortensen (Nov. 4, 2009), ECF No. 45-11, at 1 of 18
[hereinafter 1st Notice].

The firm sent a second letter to the

Mortensens on November 5, 2009, that contained the Notice of
Sale submitted for publication in the local newspaper and stated
the Property was scheduled for sale on “the first Tuesday in
January, 2010.”
LLC,

on

Mortensen

behalf
(Nov.

BOA SMF Ex. H, Letter from Prommis Solutions,
of
5,

McCalla
2009),

Raymer,
ECF

LLC,

No.

to

45-11,

Linda
at

and
3-4

Robert
of

18

[hereinafter 2d Notice].

The Mortensens received and signed for

the foreclosure notice.

Mortensen Dep. 83:21-85:3; BOA SMF Ex.

H, Certified Mail Receipt, ECF No. 45-11, at 17 of 18.
advertised the foreclosure sale of the Property.
22.

The firm

Howe Aff. ¶

Despite these notices, the Mortensens rented the Property

in 2009 and 2010.

Mortensen Dep. 79:3-12; 90:7-9.

9

The Mortensens did not take any steps to reinstate the loan
before foreclosure.

Howe Aff. ¶ 25.

The Mortensens do not want

to reinstate the loan and would not have done so a year ago.
Mortensen

Dep.

Mortensens

and

despite

64:25-65:6.
their

their

counsel

attempts

forbearance
foreclosure

on

to

agreement.
the

BOA
that

Greene County, Georgia.

collection

obtain

Howe

Property

a

Aff.

loan

¶

26.

occurred

Id. ¶ 30.

occupy and rent the property.

repeatedly

on

informed
would

the

continue

modification
The

or

non-judicial

January

5,

2010

in

The Mortensens continue to

Id. ¶ 27.

DISCUSSION
The
Georgia

Mortensens
state

foreclosure.

law

have
for

asserted

fraud,

claims

against

misrepresentation,

BOA

and

under

wrongful

The Mortensens also asserted claims under the Fair

Credit Reporting Act, 15 U.S.C. § 1681 et seq., and the Florida
Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.204
et

seq.

Mortensens,

BOA
who

seeks
were

summary

judgment

represented

by

on

all

counsel,

claims.

The

untimely

filed

their Response to BOA’s motion for summary judgment one day late
under Local Rule 7.1 expired.4

Though BOA requests that the

Court deem its motion for summary judgment unopposed, the Court
4

Local Rule 7.1 requires that a response must be served within twentyone days of service of a movant’s motion and brief plus three days for
service pursuant to Local Rule 6.3.
The Mortensens response was due
on or before August 8, 2011, but was filed on August 9, 2011. Pls.’
Mem. in Opp’n to Mot. for Summ. J., ECF No. 62.

10

has considered the Mortensens’ Response.

The Court grants BOA’s

motion for summary judgment for the following reasons.
I.

Fraud and Misrepresentation Claims
A.

Fraud

The Mortensens claim that BOA committed fraud by falsely
promising them a loan modification if they defaulted on the
Property’s

mortgage

payments.

The

Mortensens

further

assert

that BOA had the specific intent to defraud them because it
instructed the Mortensens to default on the mortgage.
In Georgia, to establish fraud, the Mortensens must show:
“(1) a false representation by the Bank; (2) scienter; (3) an
intention

to

induce

them

to

act

or

refrain

from

acting

in

reliance upon the representations; (4) justifiable reliance; and
(5) damages.”

Hicks v. Sumter Bank & Trust Co., 269 Ga. App.

524, 526-27, 604 S.E.2d 594, 596 (2004).

For the Mortensens’

fraud claim to survive summary judgment, “there must be some
evidence from which a jury could find each element of the tort.”
Copeland v. Home Sav. of Am., 209 Ga. App. 173, 174, 433 S.E.2d
327, 328 (1993).
The Mortensens cannot establish the first element.

They

did not point to any evidence showing that BOA promised them a
loan

modification

if

they

defaulted,

nor

have

they

produced

evidence that BOA instructed them to default on the mortgage.
The

Mortensens

admit

that

BOA

11

never

promised

them

a

loan

modification or principal reduction.

Mortensen Dep. 61:9-11.

They also understood that no provision of the loan documents,
including

the

security

deed,

entitled

a

principal

Id. at 41:7-13.

reduction or a loan modification.

them

to

Further,

they understood that BOA could foreclose on the Property if the
mortgage went into default.

Id. at 41:14-18.

undisputed

BOA

facts

show

that

made

no

Therefore, the

promise

or

false

representation of loan modification.
The Mortensens also contend that BOA told them to default
on the mortgage in order to seek a loan modification.

The

Mortensens, however, have pointed to no evidence supporting this
assertion.

Mr. Mortensen stated that BOA instructed him to

default and as evidence pointed to the following: (1) a BOA
representative
modification
mortgage”;

told
unless

(2)

a

BOA

him
a

that

BOA

borrower

banker

sent

could

not

discuss

is

“delinquent

him

a

Wall

on

Street

loan
[his]

Journal

article discussing federal recovery plans and mortgages; and (3)
several speeches made by President George W. Bush.

Mortensen

Dep. 53:17-25, 59:20-61:4; Pls.’ Mem. in Opp’n to Mot. for Summ.
J. 9-10, ECF No. 62 [hereinafter Pls.’ Mem.].
The conversation with the BOA banker did not constitute
instructions to default.

BOA truthfully, in keeping with its

policies, informed the Mortensens that it would not discuss loan
modification options unless a loan was in default.

12

Howe Aff. ¶

17; Mortensen Dep. 53:17-25.

The article, which was not written

or altered by BOA, and President Bush’s speeches did not provide
instructions

on

how

to

achieve

a

loan

modification

specifically instruct the Mortensens to default.

or

Nothing in the

article addressed the Mortensens’ financial situation at that
time or the mortgage on the Property.

Instead, the article

explicitly states that a borrower must be able to “swear that
[he is] genuinely in trouble” and that the package does not
apply to those who are “just throwing [themselves] upon the
mercy of the rescue package as a ploy.”
The

Mortensens

foreclosure
thought

also

proceedings

that

the

hold

assert

Article at 2 of 3.

that

for

thirty

was

“to

when

allow

stayed

in

May

2009,

for

days

BOA

the

good

completion of the loan modification submission.”5
They,

however,

point

to

no

evidence

that

the
they
faith

Pls.’ Mem. 10.

contradicts

BOA’s

assertion that this was merely a review period, Howe Aff. ¶ 11,
or to any evidence of bad faith by BOA.

The Mortensens confirm

that BOA never promised them a loan modification.

Mortensen

Dep. 61:9-11.

5

The Mortensens advance other arguments of disputed facts in their
Response that the Court finds do not create a genuine dispute of
material fact because they do not go to “the essential elements that
the [Mortensens] must prove at trial.”
Moton v. Cowart, 631 F.3d
1337, 1341 (11th Cir. 2011).

13

The Mortensens cannot meet the first element for a fraud
claim because they have pointed to no false representation made
by BOA.

Failing to meet even the first element of the tort, the

Mortensens’ fraud claim fails as a matter of law, and the Court
grants summary judgment to BOA on this claim.
B.

Conspiracy to Commit Fraud

The Mortensens also claim that BOA conspired with unnamed
and unidentified defendants to commit fraud against them.

“To

recover damages for a civil conspiracy claim, a plaintiff must
show that two or more persons, acting in concert, engaged in
conduct that constitutes a tort.

Absent the underlying tort,

there can be no liability for civil conspiracy.”

Jenkins v.

Wachovia Bank, Nat’l Ass’n, 309 Ga. App. 562, 567, 711 S.E.2d
80, 85 (2011).

Therefore, because the fraud claim fails, the

Mortensens’ conspiracy claim fails.

The Court grants summary

judgment to BOA on this claim.
C.
The

Fraudulent Inducement
Mortensens

inducement.

They

also
do

not

allege
claim

a
that

claim

for

Defendant

fraudulent
fraudulently

induced them to enter into the loan and related loan agreements,
but instead they maintain that BOA “fraudulently induced [them]
to breach their loan mortgage contract all the while claiming
that

said

breach

modification.”

was

necessary

in

order

to

consider

a

loan

Am. Compl. ¶ 25, ECF No. 42 (emphasis added).

14

BOA construes this as a claim for tortious interference with
contract.

The Court, however, concludes that based on their

Amended Complaint, the Mortensens are attempting to assert a
claim for fraudulent inducement to breach a contract.
The

elements

of

a

claim

of

fraudulent

inducement

under

Georgia law are the same five elements as a claim for fraud.
JarAllah v. Schoen, 243 Ga. App. 402, 403-04, 531 S.E.2d 778,
780 (2000).

Just as the Mortensens failed to put forth evidence

creating a genuine dispute on their fraud claim, they failed to
present evidence to create a genuine dispute on their fraudulent
inducement to breach the loan contract claim.

Therefore, the

Court grants BOA’s motion for summary judgment as to this claim.
D.

Negligent and Intentional Misrepresentation

The

Mortensens

also

assert

claims

intentional misrepresentation against BOA.

of

negligent

and

The Mortensens claim

that BOA misrepresented certain facts, resulting in transactions
that were disadvantageous to the Mortensens.
31, 35-39.
fraud

and

Am. Compl. ¶¶ 28-

In Georgia, “[t]he same principles apply to both
negligent

misrepresentation.”

Anderson

v.

Atlanta

Comm. for the Olympic Games, Inc., 261 Ga. App. 895, 900, 584
S.E.2d 16, 21 (2003).
BOA contends, and the Court agrees, that the Mortensens’
misrepresentation claims fail because the Mortensens have failed
to

show

that

BOA

supplied

false

15

information

to

them.

See

O.C.G.A. § 51-6-2 (requiring a misrepresentation or concealment
of fact with intent to deceive for an action involving deceit);
Smiley v. S & J Invs., Inc., 260 Ga. App. 493, 498, 580 S.E.2d
283,

288

(2003)

(requiring

as

an

element

of

negligent

misrepresentation that a defendant submit false information).
As detailed above, the Mortensens have not pointed to any false
representation

made

misrepresentation,

the

to

them

by

Mortensens’

BOA.

Without

intentional

and

misrepresentation claims fail as a matter of law.

a

negligent

Accordingly,

the Court grants BOA’s motion for summary judgment as to these
claims.
II.

Fair Credit Reporting Act Claim
The Mortensens also assert a claim that BOA violated the

Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., by
knowingly

and

falsely

reporting

to

credit

reporting

agencies

that the Mortensens were delinquent on their loan obligations
and then failing to correct that report.
furnishers

of

information

to

submit

The FCRA requires

accurate

information

to

consumer reporting agencies and to correct any known inaccurate
information that has been furnished.
The

Eleventh

Circuit

has

affirmed

15 U.S.C. § 1681s-2(a).
that

the

FCRA

“does

not

provide a private right of action to redress . . . a violation”
of § 1681s-2(a).

Green v. RBS Nat’l Bank, 288 F. App’x 641, 642

(11th Cir. 2008) (per curiam).

The FCRA leaves enforcement of

16

this subsection to government agencies and officials.

15 U.S.C.

§ 1681s-2(c)(1), (d); accord Chipka v. Bank of Am., 355 F. App’x
380, 383 (11th Cir. 2009) (per curiam).

Because as a matter of

law the Mortensens have no private right of action against BOA
under § 1681s-2(a), the Court grants BOA’s motion for summary
judgment as to the Mortensens’ FCRA claim.
III. Defamation & False Light
The Mortensens further assert Georgia state law claims for
defamation

and

false

light

based

upon

BOA

statements to the credit reporting agencies.”
68.

False

Georgia law.

light

is

a

recognized

invasion

“making

false

Am. Compl. ¶ 51of

privacy

under

Benedict v. State Farm Bank, 309 Ga. App. 133, 136

n.3, 709 S.E.2d 314, 317 n.3 (2011).

The FCRA, 15 U.S.C. §

1681h(e), protects companies who furnish information to consumer
reporting

agencies

defamation

and

pursuant

invasion

to

of

the

FCRA

privacy

from

claims

state

law

“unless

the

information it provided was both false and also given with the
malicious or willful intent to damage the consumer.”

Lofton-

Taylor v. Verizon Wireless, 262 F. App’x 999, 1002 (11th Cir.
2008) (per curiam).
The

Mortensens

have

not

proven

that

BOA

information to any consumer reporting agencies.

reported

false

The Mortensens

admit that they last paid mortgage payment on the Property in
September 2008.

Mortensen Dep. 56:5-7.

17

They admit that they

could have paid this payment and all payments to the present,
but chose not to do so.

Id. at 63:25-64:13.

Further, the

Mortensens admit that they did not pay the October 2008 mortgage
payment

and

default.”

“waited

for

60

days

Id. at 58:22-25.

for

[the

loan]

to

be

in

Finally, they admit that they were

in default at the time of the foreclosure.

Id. at 100:18-20.

The Mortensens do not specify any other false statements that
BOA

made

to

the

credit

agencies.

Id.

at

99:22-24.

Any

information BOA furnished to credit reporting agencies regarding
the Mortensens’ default and foreclosure on the Property were
true.

Based on these facts, the Court finds that the Mortensens

failed to prove the required element of falsity.

Therefore, the

FCRA preempts the Mortensens’ defamation and false light claims,
and the Court grants BOA’s motion for summary judgment as to
those claims.
IV.

Wrongful Foreclosure
The

Mortensens

also

assert

a

claim

for

wrongful

foreclosure, alleging that BOA sold the Property without proper
statutory notification of the sale.

Notice of the sale must be

given in accordance with O.C.G.A. § 44-14-162.2.
14-162(a).
foreclosure

The

statute

proceedings,

requires

the

that

foreclosing

O.C.G.A. § 44-

before
party

initiating

must

provide

notice to the debtor at least thirty days prior to the proposed

18

date of foreclosure.

O.C.G.A.

§ 44-14-162.2(a).

Under the

statute:
Such notice shall be in writing, shall include the
name, address, and telephone number of the individual
or entity who shall have full authority to negotiate,
amend, and modify all terms of the mortgage with the
debtor, and shall be sent by registered or certified
mail or statutory overnight delivery, return receipt
requested, to the property address or to such other
address as the debtor may designate by written notice
to the secured creditor.
Id.
BOA complied with the notice requirements before initiating
foreclosure on the Property.

First, on November 4, 2009, BOA

sent written notice to the Mortensens at the Property’s address
stating

that

foreclosure.

the

Property

1st Notice.

mortgage

had

been

referred

for

Second, BOA sent a notice of the

foreclosure sale to the Property address and to the Mortensens’
primary residence that specified BOA as the foreclosing party by
name, address, and telephone number.
This

notice

stated

that

the

2d Notice at 4 & 10 of 18.

sale

would

occur

on

the

first

Tuesday in January, 2010, and also included the notice of sale
for publication.

Id. at 4 & 6 of 18.

These notices were sent

by certified mail and signed for by the Mortensens.

Mortensen

Dep. 83:21-85:3; see, e.g., Certified Mail Receipt.

Based on

these undisputed facts, the Court finds that BOA gave proper
statutory
Mortensens.

notification
Therefore,

of
the

the

foreclosure

Court

19

grants

sale

BOA’s

to

motion

the
for

summary

judgment

as

to

the

Mortensens’

wrongful

state

foreclosure claim.
V.

Florida Deceptive and Unfair Trade Practices Act Claim
In

addition

Mortensens

also

to

their

claim

that

Georgia
BOA’s

state

conduct

law
“was

claims,

the

deceptive

and

unfair” in violation of the Florida Deceptive and Unfair Trade
Practices Act (“Act”), Fla. Stat. § 501.204 et seq.
¶ 43-46.

Am. Compl.

The Mortensens fail to demonstrate why Florida law

would apply to this action and what specific provision of the
Act BOA allegedly violated.

The Court finds that the Mortensens

have failed to show that a genuine factual dispute exists as to
this

claim,

and,

therefore,

grants

BOA’s

motion

for

summary

judgment as to this claim.
CONCLUSION
For the reasons set forth above, the Court grants BOA’s
motion for summary judgment as to all claims.
that

motion

Admissions,

without
to

which

relying
the

on

Defendants’

Mortensens

did

not

Having granted
Requests

for

respond,

the

Mortensens’ Motion to Allow Late Response and Filing of Requests
for Admissions (ECF No. 50) is moot.
Quash (ECF No. 67) is also moot.
a matter of law as to all claims.

20

Further, BOA’s Motion to

BOA is entitled to judgment as

IT IS SO ORDERED, this 17th day of November, 2011.

s/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

21