Filing 15

ORDER terminating as moot 4 Motion to Dismiss for Failure to State a Claim; denying 12 Motion to Dismiss Complaint. Ordered by Judge Clay D. Land on 10/24/2012.(aaf) ***

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ATHENS DIVISION NADINE WEBB, J. WEBB and ERROLD G. * * Plaintiffs, * vs. CASE NO. 3:12-CV-108 (CDL) * BANK OF AMERICA, * Defendant. * O R D E R Defendant has filed a motion to dismiss Plaintiffs’ Amended Complaint (ECF No. 12). Although Plaintiffs may face a substantial burden of ultimately producing sufficient evidence to create a genuine factual dispute as to their claims, the allegations in their Amended Complaint (ECF No. 7), taken as true at this stage of the litigation, state a claim for relief sufficient to withstand Defendant’s motion to dismiss. Plaintiffs essentially allege the following: (1) Defendant foreclosed on their property when it did not have the legal authority to do so because Plaintiffs did not borrow the money from Defendant and the loan was never properly assigned to Defendant; (2) Defendant led Plaintiffs to believe that it would modify Plaintiffs’ loan in a manner that would allow Plaintiffs to avoid foreclosure, thus lulling Plaintiffs into sleeping on their rights, when Defendant never had any intention of modifying the loan; and (3) Plaintiffs requested additional information from Defendant regarding their loan, and Defendant failed to adequately respond to their request in violation of federal law. Defendant merely conclusory. responds that these allegations are The Court finds otherwise. While Defendant may be able to rebut these allegations as a matter of law, it will only be able to do so by referring to matters outside dismiss is resolving not of the the Plaintiffs’ pleadings. appropriate complaint. Therefore, procedural Moreover, a motion mechanism while the to for Court understands Defendant’s position that Plaintiffs borrowed money, failed to pay it back, and simply seek to avoid their legal obligations, the Court is not permitted to dismiss a complaint simply because “‘it strikes a savvy judge’” that Plaintiffs will be unable to prove their allegations. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Accordingly, Defendant’s motion to Amended Complaint (ECF No. 12) is denied. dismiss Plaintiffs’ Defendant’s motion to dismiss Plaintiffs’ original Complaint (ECF No. 4) is terminated as moot. Defendant shall file its answer to Complaint within 21 days of today’s ruling. Plaintiffs’ Amended The parties shall submit a jointly proposed scheduling order by November 30, 2012. 2 IT IS SO ORDERED, this 24th day of October, 2012. S/Clay D. Land CLAY D. LAND UNITED STATES DISTRICT JUDGE 3

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