GIBBS et al v. GMAC Mortgage LLC
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
BRIDGETTE GIBBS, DORIS GIBBS
and WILLIAM GIBBS,
CASE NO. 3:11-CV-121 (CDL)
GMAC MORTGAGE, LLC,
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
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
exhibits attached thereto.
Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007); Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949,
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
Ashcroft v. Iqbal, 556 U.S. 662, ___ 129 S. Ct. 1937,
1949 (2009) (quoting Twombly, 550 U.S. at 570).
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
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.
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.
4. GMAC “did unlawfully violate O.C.G.A. 44-14-161.2 [,
foreclosure proceedings conducted below true market
value of the property owned by the Plaintiff.” Id.
5. GMAC “did unlawfully violate O.C.G.A. 44-14-162.2
foreclosure proceedings.” Id. ¶ 7.
Under Federal Rule of Civil Procedure 8(a), a “pleading
that states a claim for relief must contain . . . a short and
entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
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.”
Twombly, 550 U.S. at 555.
devoid of ‘further factual enhancement.’”
Iqbal, 129 S. Ct. at
Given that Plaintiffs’ Complaint contains no factual
allegations and that Plaintiffs’ Complaint does not contain a
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.
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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