WEBB et al v. BANK OF AMERICA

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) ***

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