WEBB et al v. BANK OF AMERICA
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) ***
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
CASE NO. 3:12-CV-108 (CDL)
BANK OF AMERICA,
O R D E R
Defendant has filed a motion to dismiss Plaintiffs’ Amended
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
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
information from Defendant regarding their loan, and Defendant
failed to adequately respond to their request in violation of
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
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
Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
Amended Complaint (ECF No. 12) is denied.
Defendant’s motion to
dismiss Plaintiffs’ original Complaint (ECF No. 4) is terminated
Complaint within 21 days of today’s ruling.
The parties shall
submit a jointly proposed scheduling order by November 30, 2012.
IT IS SO ORDERED, this 24th day of October, 2012.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
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