GIBBS et al v. GMAC Mortgage LLC

Filing 7

ORDER granting 3 Motion to Dismiss for Failure to State a Claim. Ordered by Judge Clay D. Land on 12/28/2011. (CGC) ***

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
BRIDGETTE GIBBS, DORIS GIBBS
and WILLIAM GIBBS,

*
*

Plaintiffs,
*

CASE NO. 3:11-CV-121 (CDL)

vs.
*
GMAC MORTGAGE, LLC,
*
Defendant.
*
O R D E R
Plaintiffs Bridgette Gibbs, Doris Gibbs and William Gibbs
(collectively, “Plaintiffs”) brought an action against Defendant
GMAC Mortgage, LLC (“GMAC”) seeking damages and a “rule nisi to
foreclosure.”

Notice of Removal Attach. 1, Compl. 3, ECF No. 1-

1 at 5 [hereinafter Compl.].

Presently pending before the Court

is GMAC’s Motion to Dismiss Plaintiffs’ Complaint (ECF No. 3).
For the reasons set forth below, GMAC’s motion is granted.
MOTION TO DISMISS STANDARD
When considering a 12(b)(6) motion to dismiss, the Court
must

accept

complaint

as

and

true
limit

all

facts

its

consideration

exhibits attached thereto.

set

forth
to

in
the

the

plaintiff=s

pleadings

and

Bell Atl. Corp. v. Twombly, 550 U.S.

544, 556 (2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949,
959

(11th

Cir.

2009).

“To

survive

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.’”

Ashcroft v. Iqbal, 556 U.S. 662, ___ 129 S. Ct. 1937,

1949 (2009) (quoting Twombly, 550 U.S. at 570).

The complaint

must include sufficient factual allegations “to raise a right to
relief above the speculative level.”

Twombly, 550 U.S. at 555.

“[A] formulaic recitation of the elements of a cause of action
will

not

do[.]”

Id.

Although

the

complaint

must

contain

factual allegations that “raise a reasonable expectation that
discovery will reveal evidence of” the plaintiff=s claims, id. at
556, “Rule 12(b)(6) does not permit dismissal of a well-pleaded
complaint simply because ‘it strikes a savvy judge that actual
proof of those facts is improbable,’” Watts v. Fla. Int’l Univ.,
495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S.
at 556).
FACTUAL ALLEGATIONS
Plaintiffs’ Complaint concerns the real property known as
323 Magnolia Lane in Monroe, Georgia.

Compl. 1, ECF 1-1 at 3.

Plaintiffs allege that:
1. GMAC “shall not be a bona fide purchaser at
foreclosure with notice of any adverse claim
pursuant to 12 U.S.C. 3752(1).” Id. ¶ 1.
2. GMAC “did unlawfully violate Fair Debt Collections
Act with foreclosure proceedings.” Id. ¶ 2.
3. GMAC “did violate Article 3 section 306 of the
Uniform Commercial Code foreclosure proceedings.”
Id. ¶ 3.

2

4. GMAC “did unlawfully violate O.C.G.A. 44-14-161.2 [,
O.C.G.A.
44-14-161
and
O.C.G.A.
44-14-161.1]
foreclosure proceedings conducted below true market
value of the property owned by the Plaintiff.” Id.
¶¶ 4-6.
5. GMAC “did unlawfully violate O.C.G.A. 44-14-162.2
foreclosure proceedings.” Id. ¶ 7.
DISCUSSION
Under Federal Rule of Civil Procedure 8(a), a “pleading
that states a claim for relief must contain . . . a short and
plain

statement

of

the

entitled to relief.”
Complaint

does

not

claim

showing

that

the

Fed. R. Civ. P. 8(a)(2).
satisfy

this

requirement.

pleader

is

Plaintiffs’
Plaintiffs’

Complaint contains only conclusory allegations, which are not
supported by any factual allegations.

Again, “[t]o survive 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.’”

Iqbal, 129 S. Ct. at 1949 (quoting

Twombly, 550 U.S. at 570).

Moreover, the complaint must include

sufficient factual allegations “to raise a right to relief above
the speculative level.”
does

not

suffice

if

it

Twombly, 550 U.S. at 555.
merely

“tenders

devoid of ‘further factual enhancement.’”
1949

(quoting

original).

Twombly,

550

U.S.

at

‘naked

A complaint
assertion[s]’

Iqbal, 129 S. Ct. at
557)

(alteration

in

Given that Plaintiffs’ Complaint contains no factual

allegations and that Plaintiffs’ Complaint does not contain a

3

short and plain statement of the claim showing that Plaintiffs
are entitled to relief, Plaintiffs’ Complaint fails to state a
claim on which relief can be granted, and it must be dismissed.
CONCLUSION
As discussed above, GMAC’s Motion to Dismiss Plaintiffs’
Complaint (ECF No. 3) is granted.

IT IS SO ORDERED, this 28th day of December, 2011.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

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