WELLS FARGO BANK NATIONAL ASSOCIATION v. AVERETT FAMILY PARTNERSHIP LLLP et al
Filing
46
ORDER granting in part and denying in part 30 Motion to Dismiss for Failure to State a Claim; finding as moot 20 Motion to Dismiss for Failure to State a Claim. Ordered by Judge Clay D. Land on 12/28/2012.(aaf)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
WELLS FARGO BANK, N.A.,
*
Plaintiff,
*
vs.
*
CASE NO. 4:12-CV-140 (CDL)
AVERETT
FAMILY
PARTNERSHIP, *
LLLP, GERALD C. AVERETT, and
REBECCA H. AVERETT,
*
Defendants.
*
O R D E R
Plaintiff Wells Fargo
Bank, National Association
(“Wells
Fargo”), as assignee, seeks to recover on five loans made to
Defendant Averett Family Partnership, LLLP (“AFP”), which were
personally guaranteed by Defendants Gerald Averett and Rebecca
Averett and which Wells Fargo claims are in default. Defendants
contend
that
they
extended
the
maturity
dates
on
the
loans
pursuant to the loan agreements, and therefore, they were not in
default when Wells Fargo attempted to exercise its rights to
declare the loans in default, accelerate the indebtedness, and
foreclose on the collateral.
Defendants assert counterclaims
for breach of contract, breach of implied covenant of good faith
and
fair
dealing,
wrongful
acceleration
of
debt,
wrongful
attempted foreclosure, fraud, and negligent misrepresentation.
Defs.’
1st
Am.
Counterclaims,
ECF
No.
24
[hereinafter
Am.
Counterclaims].
Now pending before the Court is Wells Fargo’s
Motion to Dismiss Counts II Through VII of Defendants’ First
Amended Counterclaims (ECF No. 30), which seeks to dismiss all
of Defendants’ counterclaims except for the breach of contract
claim.
For the following reasons, the Court denies the motion
as to the breach of implied covenant of good faith claim and
grants the motion as to Defendants’ counterclaims for wrongful
acceleration of debt, wrongful foreclosure, fraud, and negligent
misrepresentation.
MOTION TO DISMISS STANDARD
When
considering
a
12(b)(6)
motion
to
dismiss
a
counterclaim, the Court must accept as true all facts set forth
in the counterclaim and limit its consideration to the pleadings
and exhibits attached thereto.
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
[counterclaim] 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, 678 (2009) (quoting
Twombly,
550
U.S.
at
570).
The
counterclaim
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 counterclaim must contain factual
2
allegations that “raise a reasonable expectation that discovery
will reveal evidence of” the claims, id. at 556, “Rule 12(b)(6)
does
not
permit
dismissal
of
a
well-pleaded
[counterclaim]
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 BACKGROUND
Accepting all of Defendants’ factual allegations as true,
and construing all reasonable inferences in their favor, the
facts are as follows.
Five promissory notes for loans made by Regions Bank, N.A.
to AFP have been assigned to Wells Fargo.
Gerald Averett and
Rebecca
of
Averett
are
the
general
partners
AFP,
and
they
personally guaranteed the loans.
Prior to the assignment of the loans to Wells Fargo, AFP
executed a First Consolidated Amendment on March 31, 2010 under
which Regions Bank agreed to modify the maturity dates of three
of the loans to April 5, 2011.
Regions
Bank
Agreement.
executed
a
On April 5, 2011, Defendants and
Second
Consolidated
Amendment
and
That agreement extended the maturity date to April
5, 2012 and entitled AFP to exercise an option to extend the
maturity dates of the notes for an additional six months:
Extension Option.
Borrower shall be entitled to
extend the maturity date of the Notes for one (1) six
month period (the “Extension Period”) upon written
3
request . . . provided that the following terms and
conditions are satisfied as of the first day of the
Extension Period:
(a) Each of the Notes is being so extended, or
otherwise paid in full on its maturity date, and no
breach, default, Default or Event of Default shall
exist under any of the Notes or under any of the other
Loan Documents;
(b) The Debt Service Coverage Ratio (as defined
below) shall be no less than 1.15 to 1;
(c)
Borrower
shall
have
executed
such
supplemental documentation as Lender may reasonably
require in order to evidence extension of the maturity
date and to preserve the security of Lender pursuant
to the Security Instruments and the other Loan
Documents and shall have paid all costs and expenses
incurred in connection therewith and provided extended
title insurance coverage as required by Lender at such
time; and
(d) Upon extension of the maturity date of the
loan, each such Note as so extended, shall be payable
in the same manner as set forth therein.
“Debt Service” shall mean (i) the fixed monthly
payment of principal and interest that would be
necessary to fully amortize the total outstanding
principal balance of all of the Notes being extended
(calculated by Lender as of the date of such
extension) in three hundred sixty (360) months,
assuming an annual interest rate equal to the five
percent (5.0%), multiplied by (ii) twelve (12).
“Debt Service Coverage Ratio” shall mean the
ratio obtained by dividing Net Revenue by Debt
Service;
“Net Revenue” shall mean (i) the aggregate of all
gross receipts, income, revenues, rents, issues and
profits, and all proceeds thereof, derived from all of
the premises, secured by the Security Instruments
securing such Notes to be extended, or any portion
thereof received by Borrower from the use, occupancy,
leasing, management, operation or control of, or
otherwise arising out of, the premises or any portion
4
thereof, including, without limitation, all rent and
other sums paid under the tenant, space, storage or
other occupancy leases and agreements from leases in
place as of March 31 of such year (excluding, however,
security or other deposits and any lease buyouts or
extraordinary payments), annualized over a twelve (12)
month period, less (ii) (a) actual bona fide normal,
customary and reasonable operating expenses for the
previous calendar year ending December 31 actually
paid during such year.
Compl. Ex. 38, Second Consolidated Amendment & Agreement ¶ 1(d),
ECF No. 1-38.
Defendants paid additional consideration for the
inclusion of the Extension Option.
AFP exercised the Extension Option by letter dated March 5,
2012 sent to Wells Fargo, which had been assigned the notes by
that
time.
On
April
2,
2012,
counsel
for
Wells
Fargo
acknowledged receipt of the letter and requested that AFP send
it more information.
letter
and
extension.
with
the
provided
AFP’s counsel responded to Wells Fargo’s
the
requested
documents
related
to
the
AFP continued making timely payments in compliance
terms
of
the
notes,
but
Wells
Fargo,
apparently
unconvinced that Defendants had effectively exercised the option
to extend the maturity date for the loans, refused to apply
these payments to the respective balances.
Defendants
allege
that
during
the
extension
period
and
without cause, Wells Fargo notified them on April 11, 2012 that
they were in default and that it was accelerating the entire
debt pursuant to the loan agreements.
5
In the notice, Wells
Fargo
claimed
that
Defendants
did
not
provide
the
documentation for the maturity date to be extended.
requested
Wells Fargo
also began foreclosure proceedings against some of Defendants’
properties located in Florida, which were collateral securing
the obligations under the notes.
Wells
Fargo’s
intent
to
Those proceedings made public
foreclose
on
those
properties
in
Florida, and those publications allegedly “contained untrue and
inaccurate information related to the loan and Defendant[s].”
Am. Counterclaims ¶ 26.
Defendants claim they suffered damages from these actions
amounting to at least $10,000,000.00.
DISCUSSION
In support of their counterclaims, Defendants allege that
Wells
Fargo
breached
the
terms
of
the
Second
Consolidated
Amendment and Agreement (“the Agreement”), which contained the
Extension Option, when it declared them in default, accelerated
the indebtedness due under the notes, and commenced foreclosure
proceedings, even though Defendants had exercised their option
to extend the maturity date for the loans.
10-12.
Am. Counterclaims ¶¶
Wells Fargo does not seek to dismiss this breach of
contract claim at this time.
In addition to this breach of
contract claim, Defendants assert claims for breach of implied
duty
of
good
faith,
wrongful
acceleration
6
of
debt,
wrongful
attempted foreclosure, fraud, and negligent misrepresentation.
Wells Fargo does seek dismissal of these claims.
I.
Breach of Implied Duty of Good Faith
Defendants allege that Wells Fargo’s conduct breached the
implied duty of good faith and fair dealing.
Although it is not
entirely clear, it appears that Defendants contend that Wells
Fargo breached this duty when it refused to honor Defendants’
invocation of the right to extend the maturity date for the
loans.
To the extent that Defendants allege that the terms of
the maturity extension had implied within them a duty that the
parties’ obligations under that provision would be performed in
good faith, the Court denies Wells Fargo’s motion to dismiss
that claim.
claim
The Court rejects Wells Fargo’s argument that this
should
be
dismissed
because
the
duties
alleged
by
Defendants are duplicative of the duties in the Agreement, and
thus, the claim is one for breach of contract.
breach
of
implied
duty
of
good
faith
claim
is
While the
inextricably
intertwined with the breach of contract claim, it is not merely
duplicative of that claim based on the present record, which is
primarily limited to Defendants’ factual allegations.
Georgia law imposes a “common law duty to diligently and in
good faith seek to comply with all portions of the terms of a
contract.”
App.
231,
Stuart Enters. Int’l, Inc. v. Peykan, Inc., 252 Ga.
233,
555
S.E.2d
881,
7
884
(2001).
“The
implied
covenant
of
good
faith
modifies,
provisions of the contract itself.
independent of the contract.”
and
becomes
part
of,
the
As such, the covenant is not
Id. at 234, 555 S.E.2d at 884.
Thus, a plaintiff cannot prevail on a claim for breach of the
covenant if the plaintiff does not prevail on its underlying
breach of contract claim.
Heritage Creek Dev. Corp. v. Colonial
Bank, 268 Ga. App. 369, 374, 601 S.E.2d 842, 847 (2004); see
also Stuart Enters., 252 Ga. App. at 233-34, 555 S.E.2d at 88384 (holding that like the implied covenant of good faith and
fair
dealing
created
under
the
Uniform
Commercial
Code,
the
common law duty does not create an independent cause of action).
Moreover, “[t]here can be no breach of an implied covenant of
good
faith
where
a
party
to
a
contract
has
done
what
the
provisions of the contract expressly give him the right to do.”
Martin v. Hamilton State Bank, 314 Ga. App. 334, 335, 723 S.E.2d
726,
727
(2012)
marks omitted).
(alteration
in
original)
(internal
quotation
“‘Good faith’ is a compact reference to an
implied undertaking not to take opportunistic advantage in a way
that could not have been contemplated at the time of drafting,
and which therefore was not resolved explicitly by the parties.
When the contract is silent, principles of good faith . . . fill
the
gap.”
Id.
at
335-36,
723
original).
8
S.E.2d
at
728
(omission
in
Here, Defendants maintain that they had a contractual right
to extend the maturity date of the loans for an additional six
months and that they effectively exercised that right pursuant
to the terms of the applicable contract.
They further contend
that Wells Fargo unilaterally decided that Defendants were not
entitled
to
extend
complied
with
the
the
maturity
conditions
date
for
or
that
obtaining
they
an
had
not
extension.
Defendants allege that either it is absolutely clear that the
contract terms authorized the extension, or if any of the terms
are unclear, it is clear that when the implied duty of good
faith is imposed upon the terms, Defendants were entitled to the
six
month
extension.
Thus,
this
is
not
a
case
where
the
Defendants have failed to state a breach of contract claim and
seek to assert a separate and independent breach of implied duty
claim.
See Stuart Enters., 252 Ga. App. at 234, 555 S.E.2d at
884 (holding that when a jury finds no breach of contract, a
verdict for breach of the covenant of good faith in performance
of that contract cannot stand because breach of the covenant
cannot form an independent cause of action).
The
Court
finds
that,
at
this
stage,
Defendants
have
sufficiently stated a plausible claim for breach of the implied
duty of good faith.
See, e.g., DeKalb Cnty. Sch. Dist. v. Gold,
No. A12A0824, 2012 WL 5857217, at *7 (Ga. Ct. App. Nov. 20,
2012)
(finding
that
where
plaintiff
9
sufficiently
alleged
a
breach of contract, “[i]t follows, then, that the trial court
did
not
err
in
failing
to
dismiss
[plaintiff]’s
claims
for
breach of contract and for breach of the covenant of good faith
and fair dealing implied therein”); Techbios, Inc. v. Champagne,
301 Ga. App. 592, 595, 688 S.E.2d 378, 381 (2009) (concluding
that plaintiff “has adequately set forth a claim of breach of
contract
of
the…
agreement,
and
duties
imposed
by
the
…
agreement also serve as a sufficient basis for its claim that
[defendants] breached the implied covenant of good faith
fair dealing”).
and
Accordingly, the Court denies Wells Fargo’s
motion to dismiss this claim.
The Court is skeptical, however,
of Defendants’ tort claims as discussed below.
II.
Wrongful Acceleration of Debt
In their “wrongful acceleration of debt” claim, Defendants
rely on the same conduct that they allege breached the contract
in support of a separate tort for “wrongful acceleration of
debt.”
They contend that because they had the right to extend
the maturity date, they were not in default and Wells Fargo had
no right to accelerate the debt.
This may be true, but the
question is whether it gives rise to a tort claim.
“It is well
settled that misfeasance in the performance of a contractual
duty may give rise to a tort action.
But in such cases the
injury to the plaintiff has been an independent injury over and
above the mere disappointment of plaintiff’s hope to receive the
10
contracted-for benefit.”
Ga.
App.
quotation
Constr. Lender, Inc. v. Sutter, 228
405,
409,
491
marks
omitted).
S.E.2d
It
853,
is
858
also
(1997)
(internal
well-settled
that
a
“defendant’s mere negligent performance of a contractual duty
does not create a tort cause of action; rather, a defendant’s
breach of a contract may give rise to a tort cause of action
only if the defendant has also breached an independent duty
created by statute or common law.”
Fielbon Dev. Co., LLC v.
Colony Bank of Houston Cnty., 290 Ga. App. 847, 855, 660 S.E.2d
801, 808 (2008).
Therefore, “[a]bsent a legal duty beyond the
contract, no action in tort may lie upon an alleged breach of
[a] contractual duty.”
Id. (alterations in original) (internal
quotation marks omitted).
All
allegations
underlying
the
Defendants’
claim
of
“wrongful acceleration” asserted against Wells Fargo arise out
of the Agreement, and the damages from the acceleration flow
directly from that contract.
the
Court
found,
any
Defendants have not cited, nor has
independent
statutory
or
common-law
requirement addressing how and when banks can accelerate loans
based on default for non-payment at maturity.
Defendants cite
cases finding a tort claim for wrongful acceleration based on
the independent duty a lender owes pursuant to O.C.G.A. § 11-1208 when it accelerates a loan after deeming itself insecure.
Crosson v. Lancaster, 207 Ga. App. 404, 404-05, 427 S.E.2d 864,
11
866 (1993); Mayo v. Bank of Carroll Cnty., 157 Ga. App. 148,
148, 276 S.E.2d 660, 661 (1981); First Nat’l Bank of Gainesville
v.
Appalachian
Indus.,
Inc.,
S.E.2d 422, 424-25 (1978).1
146
Ga.
App.
630,
632-33,
247
Here, just as the Court of Appeals
of Georgia stated in Martin v. Hamilton State Bank, “[t]hose
decisions are, however, distinguishable because they involved a
lender accelerating a debt based on the lender having deemed
itself insecure, not accelerating a debt based on a default for
nonpayment.”
(2012).
314 Ga. App. 334, 336 n.5, 723 S.E.2d 726, 728 n.5
The
remaining
case
cited
by
Defendants,
Decatur
Investments Company v. McWilliams, 162 Ga. App. 181, 290 S.E.2d
526 (1982), addresses a claim for wrongful foreclosure and not
an independent claim for wrongful acceleration.
Defendants have
not established, nor has the Court discovered, the existence of
an independent duty that provides them with a cause of action in
tort for wrongful acceleration of debt.
1
The Court also notes that Defendants’ citation to Mayo v. Bank of
Carroll County for the proposition that Georgia recognizes “wrongful
acceleration” claims is misplaced for several additional reasons.
First, the parties in Mayo did not contest whether wrongful
acceleration states a cause of action, so the court did not address
the issue. 157 Ga. App. at 148, 276 S.E.2d at 661. Second, the case
that the Mayo court cited does not establish that a separate duty
exists to create a tort for wrongful acceleration in Georgia.
See
generally Sale City Peanut & Milling Co. v. Planters & Citizens Bank,
107 Ga. App. 463, 130 S.E.2d 518 (1963) (holding that allegations
involving the attempted enforcement of a power of sale created by deed
and the publication of false statements of default were sufficient to
“set out a cause of action good as against a general demurrer.”).
12
The contracts between Defendants and Wells Fargo determine
the conditions under which the indebtedness under the loans may
be
accelerated.
To
the
extent
Wells
Fargo
wrongfully
accelerated the loans, the Defendants’ remedy is in contract,
not tort.
Accordingly, Defendants’ counterclaim for wrongful
acceleration of debt is dismissed.
III. Wrongful Attempted Foreclosure
Defendants
also
assert
a
wrongful
attempted
foreclosure
claim based on Wells Fargo’s initiating foreclosure proceedings
in
Florida
on
properties
Counterclaims ¶ 25.
located
in
that
state.
Am.
Wells Fargo seeks dismissal of this claim,
arguing that Florida substantive law applies, and Florida law
does not recognize the tort of wrongful attempted foreclosure.
Defendants agree that Florida does not recognize this tort, but
they argue that Georgia substantive law, which does recognize
the tort of wrongful attempted foreclosure, applies.
Defendants
argue that Georgia substantive law applies because “Defendants
are Georgia residents bringing a diversity action in the Middle
District of Georgia.”
Defs.’ Second Resp. to Pl.’s Mot. to
Dismiss 7, ECF No. 33.
Sitting in Georgia, the Court applies Georgia’s choice of
law rules.
Assocs.,
curiam).
Federated Rural Elec. Ins. Exch. v. R.D. Moody &
Inc.,
468
F.3d
1322,
1325
(11th
Cir.
2006)
(per
Georgia's choice of law rules apply the doctrine of
13
lex loci delicti, the traditional rule that “a tort action is
governed by the substantive law of the state where the tort was
committed.”
Dowis v. Mud Slingers, Inc., 279 Ga. 808, 809, 816,
621 S.E.2d 413, 414, 419 (2005).
“The general rule is that the
place of the wrong, the locus delicti, is the place where the
injury sustained was suffered rather than the place where the
act was committed[.]”
Risdon Enters., Inc. v. Colemill Enters.,
Inc.,
902,
172
(internal
Ga.
App.
quotation
903,
marks
324
omitted).
S.E.2d
738,
Because
the
740
(1984)
foreclosure
action was filed in Florida, the affected properties are located
in Florida, and the publication regarding the foreclosure and
Defendants’ financial condition occurred in Florida, the Court
finds that Florida is the place of the act and the injury.
Cf.
Triguero v. ABN AMRO Bank N.V., 273 Ga. App. 92, 95, 614 S.E.2d
209,
212
(2005)
(“[I]n
defamation
cases,
the
law
of
the
jurisdiction where the publication occurs determines the rights
and
liabilities
applies
to
Because
Florida
of
the
Defendants’
does
parties.”).2
wrongful
not
Therefore,
attempted
recognize
a
Florida
foreclosure
claim
for
attempted foreclosure, that claim must be dismissed.
2
law
claim.
wrongful
See, e.g.,
Although Florida does not recognize the tort of wrongful attempted
foreclosure, Georgia law instructs that the nature of the tort is akin
to defamation.
See Aetna Fin. Co. v. Culpepper, 171 Ga. App. 315,
319, 320 S.E.2d 228, 232 (1984) (stating that wrongful attempted
foreclosure requires “a knowing and intentional publication of untrue
and
derogatory
information
concerning
the
debtor’s
financial
condition, and that damages were sustained as a direct result of this
publication”).
14
Raines v. GMAC Mortg. Co., No. 3:09-CV-00477-J-25HTS, 2009 WL
4715969, at *1-2 (M.D. Fla. Dec. 10, 2009) (concluding that a
cause
of
action
for
attempted
wrongful
foreclosure
does
not
exist in Florida).
IV.
Fraud
Defendants’ fraud claim must also be dismissed.
Defendants
have failed to plead the essential elements of a fraud claim
with the specificity required by the Federal Rules of Civil
Procedure.
Under Georgia law, “[t]he tort of fraud has five elements:
a false representation by a defendant, scienter, intention to
induce the plaintiff to act or refrain from acting, justifiable
reliance by plaintiff, and damage to plaintiff.”
Griffin v.
State Bank of Cochran, 312 Ga. App. 87, 90, 718 S.E.2d 35, 39
(2011)
(internal
quotation
marks
omitted).
In
addition
to
alleging the essential elements of a fraud claim, “a party must
state with particularity the circumstances constituting fraud or
mistake.
Malice, intent, knowledge, and other conditions of a
person's mind may be alleged generally.”
Fed. R. Civ. P. 9(b).
This
“serves
“heightened”
pleading
requirement
an
important
purpose in fraud actions by alerting defendants to the precise
misconduct with which they are charged and protecting defendants
against spurious charges of immoral and fraudulent behavior.”
Ziemba v. Cascade Int'l, Inc., 256 F.3d 1194, 1202 (11th Cir.
15
2001) (internal quotation marks omitted).
“must
not
(internal
abrogate
quotation
the
marks
concept
of
omitted).
Of course, Rule 9(b)
notice
A
pleading.”
proper
balance
Id.
between
notice pleading and the specificity required by Rule 9(b) is
struck when the complaint alleges:
(1) precisely what statements were made in what
documents or oral representations or what omissions
were made, and (2) the time and place of each such
statement and the person responsible for making (or,
in the case of omissions, not making) same, and (3)
the content of such statements and the manner in which
they misled the plaintiff, and (4) what the defendants
obtained as a consequence of the fraud.
Id. (internal quotation marks omitted).
Defendants base their fraud claim on general allegations
that do not specify the facts upon which the fraud is based.
Significantly, Defendants’ allegations state no specific facts
showing that a false misrepresentation was made by Wells Fargo
or what that misrepresentation was.
A mere failure to comply
with the terms and conditions of a contract is not, standing
alone, fraud.
At a minimum, Defendants must specify statements
made by Wells Fargo that were knowingly false along with facts
from which a reasonable jury could conclude that Wells Fargo
knew the statements were false.
The Court does not find such
specific allegations in Defendants’ counterclaim for fraud, and
therefore, it must be dismissed.
16
V.
Negligent Misrepresentation
Defendants’ claim for negligent misrepresentation suffers
from the same weaknesses as their fraud claim.
“The essential
elements of negligent misrepresentation are (1) the defendant's
negligent supply of false information to foreseeable persons,
known or unknown; (2) such persons' reasonable reliance upon
that
false
information;
and
(3)
resulting from such reliance.”
Grp.,
265
Ga.
App.
343,
economic
injury
proximately
Marquis Towers, Inc. v. Highland
346,
593
S.E.2d
903,
906
(2004)
(internal quotation marks omitted).
Defendants merely allege in conclusory fashion that Wells
Fargo “negligently and falsely misrepresented to Defendants that
they had the option to extend the maturity dates of the Loans
for a six month period.”
Am. Counterclaims ¶ 38.
This bare
assertion simply does not contain sufficient factual matter to
state
a
claim
that
is
plausible
on
its
face.
Therefore,
Defendants’ negligent misrepresentation claim must be dismissed.
CONCLUSION
For
Fargo’s
the
abovementioned
motion
to
dismiss
reasons,
(ECF
No.
the
30)
Court
as
to
denies
Wells
Defendants’
counterclaim for breach of implied covenant of good faith and
fair dealing.
The Court grants the motion as to Defendants’
counterclaims
for
foreclosure,
fraud,
wrongful
and
acceleration
negligent
17
of
debt,
misrepresentation.
wrongful
Wells
Fargo’s previous motion to dismiss AFP’s counterclaims (ECF No.
20) is rendered moot by this Order.
IT IS SO ORDERED, this 28th day of December, 2012.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
18
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