Jackson et al v. Bank of America
SECOND ORDER re 4 MOTION to Dismiss Complaint filed by Bank of America and terminating 13 Motion for Reconsideration which the Court construed as a response. Ordered by Judge C. Ashley Royal on 9/14/2011 (lap) ***
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
DIANE J. and LARRY JACKSON,
BANK OF AMERICA, N.A.,
Civil Action No.
SECOND ORDER ON MOTION TO DISMISS
Plaintiffs Diane and Larry Jackson (APlaintiffs@) filed the present action alleging that
Defendant Bank of America unlawfully foreclosed on their real property located at 1430
South Dogwood Road, Woodville, Greene County, Georgia 30669. Defendants
subsequently filed a Motion to Dismiss [Doc. 4]. On August 8, 2011, this Court granted
Defendant’s Motion and dismissed Plaintiff’s pro se Complaint in so far as Plaintiffs
attempted to state (1) a claim based on Bank of America=s alleged failure to produce or
record Plaintiffs= original note or (2) a clam based upon Avapor money@ or Ano money lent@
The Court further observed, however, that Plaintiffs= Complaint also alleged that
Bank of America is liable for the Acriminal act@ of Afraudulent conversion@ of property. The
Complaint in fact alleges that Bank of America used Alegalese@ in the mortgage documents
Aas a means of converting Real Property from@ and defrauding Aits true owner@ and that
Bank of America is now fraudulently claiming possession of the promissory note when the
real note was Apurposely destroyed@ in furtherance of Bank of America=s Afraudulent and
unlawful acts to >securitize= the note.@ After examining these allegations, this Court stated,
Obviously, Plaintiffs cannot state any Acriminal@ claims in a civil action.
Likewise, Plaintiffs= conclusory assertions that a mortgage contract is
fraudulent or unfair because of the use of legal wording is wholly insufficient
to state a fraud claim. See Kalpak v. EMC Mortg. Corp., 3:11‐CV‐49‐CAR,
2011 WL 2711182 at *3 (M.D. Ga. July 13, 2011). Plaintiffs assert no facts to
show that Bank of America knowingly sought to defraud Plaintiffs by
confusing them with complex legal terminology and then inducing them to
sign a contract. Moreover, Plaintiffs allege no facts to support any false
representation by Bank of America or any resulting damage to Plaintiffs.
Plaintiffs make only a conclusory statement that the use of Alegalese@ in the
mortgage contract led them to be defrauded without presenting any facts to
substantiate the claim. These allegations fail to state a claim for fraud. See
The same is true for Plaintiffs= allegations that Bank of America is now
fraudulently claiming possession of the promissory note when the real note
was Apurposely destroyed@ in furtherance of Bank of America=s Afraudulent
and unlawful acts to >securitize= the note.@ While these statements may be
Plaintiffs= beliefs, these beliefs are unsubstantiated by any allegation of fact
and are thus merely unsupported conclusory statements. Again, baseless
assertions wholly unsupported by facts fail to state a claim for fraud. See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929
(2007) (AFactual allegations must be enough to raise a right to relief above the
speculative level ... on the assumption that all of the allegations in the
complaint are true (even if doubtful in fact).@).
(See Order, Aug. 8, 2011 [Doc. 12] pp. 5‐6).
Bank of America, however, failed to raise objection or move to dismiss Plaintiffs=
fraud claims. The Court thus raised the issue sua sponte and allowed Plaintiffs time to
respond. See Jefferson Fourteenth Assocs. v. Wometco de Puerto Rico, Inc., 695 F.2d 524,
526B27 (11th Cir. 1983) (prohibiting the sua sponte dismissal of a claim as meritless under
Rule 12(b)(6) where the district court did not provide plaintiff certain procedural
safeguards). Plaintiffs have since filed a “Motion for Reconsideration” [Doc. 12] which this
Court construes as the response.
Plaintiffs’ response fails to persuade the Court that they have or can state a viable
claim for fraud against Bank of America based upon these or other allegations. Plaintiffs
merely allege that the Bank of America loan number used in the foreclosure action was
different from the Old Kent Mortgage loan number shown on the Promissory Note. This
additional allegation does not, in and of itself, suggest fraud and is insufficient to save
Plaintiffs’ claim. Plaintiffs’ only other argument – that a photocopy of the Deed of Trust
and Promissory Note should not be admissible under the “best evidence” rule – is
inapposite to the present inquiry.
The Court thus finds that Plaintiffs fail to state a claim for fraud in the Complaint.
The remainder of Plaintiff’s Complaint is hereby DISMISSED without prejudice.
SO ORDERED, this 14th day of September, 2011
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
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