QUASEBARTH et al v. GREEN TREE SERVICING LLC

Filing 18

ORDER denying 7 Motion to Transfer Case and granting in part and denying in part 8 Motion to Dismiss for Failure to State a Claim. Ordered by U.S. District Judge CLAY D LAND on 03/03/15. (vac)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
JIM QUASEBARTH, and
ROBYN QUASEBARTH,

*
*

Plaintiffs,
*
vs.

CASE NO.

4:14-CV-223 (CDL)

*
GREEN TREE SERVICING, LLC,
*
Defendant.
*
O R D E R
This action involves an all-too-familiar consequence of the
so-called “Great Recession”—the turning of the “American Dream”
into

a

terrible

borrowed money.

nightmare.

A

family

purchases

a

home

with

They encounter difficulty repaying the loan;

miscommunication occurs between the borrowers and the lender.
And then the once-proud homeowners end up losing their home.
Litigation ensues, and the question becomes who, if anyone, is
legally responsible for the dashed dream.
In this dispute, Plaintiffs Jim and Robyn Quasebarth sue
their mortgage servicer, Defendant Green Tree Servicing, LLC,
(“Green Tree”) for violating Georgia’s Racketeer Influenced and
Corrupt

Organizations

Quasebarths

also

(“RICO”)

assert

Act,

claims

O.C.G.A.
for

§

breach

16-4-4.
of

The

contract,

interference with property rights, fraud, intentional infliction
of emotional distress, and negligence per se.

Presently pending

before the Court are Green Tree’s motions to transfer venue and
to dismiss for failure to state a claim.

For the reasons set

forth below, the Court denies the motion to transfer venue (ECF
No. 7), and grants in part and denies in part the motion to
dismiss (ECF No. 8).
APPLICABLE STANDARDS
“For

the

convenience

of

parties

and

witnesses,

in

the

interest of justice, a district court may transfer any civil
action to any other district or division where it might have
been brought . . . .”
transfer

a

case

to

28 U.S.C. § 1404(a).
another

district

discretion of the trial court.”
Co.,

934

F.2d

traditionally

1193,
give

1197

(11th

substantial

is

“The decision to

left

to

the

sound

Brown v. Conn. Gen. Life Ins.
Cir.

1991).

deference

to

Federal
the

courts

plaintiff’s

choice of forum, and therefore the movant bears the burden of
persuading the Court that its proposed forum is more convenient
than the current forum.

See In re Ricoh Corp., 870 F.2d 570,

573 (11th Cir. 1989) (per curiam) (explaining the traditional
burden for § 1404(a) transfer).
“To survive a motion to dismiss” under Federal Rule of
Civil Procedure 12(b)(6), “a complaint 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 Bell Atl. Corp. v. Twombly, 550 U.S.

2

544, 570 (2007)).

The complaint must include sufficient factual

allegations “to raise a right to relief above the speculative
level.”

Twombly, 550 U.S. at 555.

In other words, the factual

allegations must “raise a reasonable expectation that discovery
will reveal evidence of” the plaintiff’s claims.

Id. at 556.

“Rule

well-pleaded

12(b)(6)

does

not

permit

dismissal

of

a

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.
at 556).
FACTUAL BACKGROUND
Mr.
support

and
of

allegations

Mrs.

Quasebarth

allege

claims.

The

their
as

true

for

purposes

the

following

Court
of

must

the

facts

accept

pending

in

these

motion

to

Georgia

in

dismiss.
The

Quasebarths

February 2007.
their mortgage.

bought

a

home

in

Acworth,

Defendant Green Tree was the primary servicer of
Over five years later, in the summer of 2012,

the Quasebarths fell on hard times and became unable to make
their monthly mortgage payment.

This dispute arises from the

events following their missed payments.
In an attempt to cure the default on their mortgage, the
Quasebarths applied for a loan modification with Green Tree.
Green Tree promised to let the Quasebarths know if it approved

3

their

application.

But

while

their

application

was

still

pending, Green Tree informed the Quasebarths that it planned to
sell their home at a foreclosure sale on December 4, 2012.
Green Tree proceeded to make a series of misrepresentations
to

the

Quasebarths.

misrepresentations
them

from

The

were

curing

Quasebarths

intended

the

default

to

allege

defraud

on

their

that

them

and

loan.

these
prevent

The

first

misrepresentation came when the Quasebarths asked Green Tree why
it

was

foreclosing

considering

the

modification.

on

their

home

Quasebarths’

given

that

was

still

for

application

it

a

loan

During this conversation, Green Tree promised to

determine the Quasebarths’ eligibility for a modification before
the

date

of

Quasebarths
agreed.
again

the

scheduled

submitted

a

foreclosure,

new

December

application.

4,

The

if

the

Quasebarths

In fact, they allege that a few days later Green Tree
confirmed

that

it

would

“definitely

notify

[the

Quasebarths] before December 4, 2012” whether their application
was approved.
A

Compl. ¶ 36, ECF No. 1.

few

days

later,

Green

Tree

misrepresentation: If the Quasebarths
application,

Green

Tree

promised

made

another

submitted an additional

to

notify

them

of

their

eligibility for a modification within thirty days after they
submitted

the

application.

Most

importantly,

Green

Tree

promised to postpone the foreclosure sale if the Quasebarths had

4

not received word about their eligibility for a modification by
the date of the foreclosure sale, December 4, 2012.

Relying on

this promise, the Quasebarths submitted a second application on
November 8, 2012.

They believed that they would hear back from

Green Tree within thirty days, by December 8, or that Green Tree
would postpone the December 4 foreclosure sale.

But Green Tree

never

came

followed

through,

and

December

without any word from Green Tree.
that

Green

Tree

never

4

and

8

and

went

The Quasebarths now allege

intended

to

notify

them

of

their

eligibility for a loan modification, and made these statements
only to prevent the Quasebarths from curing their default.
Because Green Tree had not notified the Quasebarths about
their

eligibility

for

a

loan

modification,

the

Quasebarths

believed that Green Tree had postponed the foreclosure sale.
their

surprise,

informed

the

on

December

Quasebarths

6,

that

a

Green

it

foreclosure sale two days earlier.

had

Tree

sold

To

representative

their

home

at

a

The Quasebarths then reached

out to Green Tree and its legal counsel for clarification, and
each time Green Tree made yet another misrepresentation and told
the Quasebarths that the December 4 foreclosure sale was final.
In

fact,

Green

Tree

went

so

far

proceeding against the Quasebarths.

as

to

file

an

ejection

The Quasebarths now allege

that Green Tree knew, at the time it made these representations,

5

that

the

foreclosure

sale

had

not

occurred

and

that

the

Quasebarths still owned the home.
Relying on Green Tree’s misrepresentations, and believing
that they no longer owned the home, the Quasebarths executed a
contract releasing all their claims against Green Tree related
to the home.
relocation

In exchange, Green Tree gave them $1,050.00 for

expenses.

That

same

day,

January

6,

2013,

the

Quasebarths vacated the home.
After vacating the home, the Quasebarths received a letter
from

Green

Tree’s

legal

counsel

dated

January

29,

2013,

demanding that the Quasebarths satisfy the outstanding balance
on their mortgage, or it would sell their home at a foreclosure
sale

on

March

5,

2013.

The

letter

was

confusing

to

the

Quasebarths because they believed Green Tree had already sold
their home.

The Quasebarths did not realize that Green Tree had

not sold the home in December.

In fact, the Quasebarths were

the rightful owners of the home until March 5, 2013, when the
home sold at a foreclosure sale.

The Quasebarths allege that

they became aware of Green Tree’s misrepresentations, at the
earliest,

on

May

23,

2013,

when

Green

Tree

filed

a

deed

reflecting the March sale.
On September 11, 2013, after the Quasebarths became aware
of the misrepresentations, they sent a letter to the agents of
Green

Tree

and

Fannie

Mae

rescinding

6

their

contract

and

returning the $1,050.00 relocation check.

The Quasebarths now

sue Green Tree in diversity for violations of Georgia’s RICO
statute, breach of contract, interference with property rights,
fraud,

intentional

infliction

of

emotional

distress,

and

negligence per se.
As part of their RICO claim, the Quasebarths allege that
Green Tree engaged in similar misrepresentations with two other
sets of homeowners around the same time.

Their first example is

Maxwell and Cynthia Jones in Columbus, Georgia.

The Quasebarths

allege

of

that

Green

Tree

made

a

series

fraudulent

representations to Mr. and Mrs. Jones that ultimately resulted
in Green Tree wrongfully foreclosing on their home.
foreclosure,

Green

Tree

continued

to

attempt

to

After the
collect

balance of the mortgage, a practice prohibited by law.
Quasebarths
behavior

also

when

it

allege

that

improperly

Green

Tree

foreclosed

engaged
on

the

in
home

the
The

similar
of

an

Oklahoma resident, Karina Nichols, and then wrongfully harassed
her to pay the balance of the mortgage.
DISCUSSION
I.

Motion to Transfer Venue
Green Tree seeks to have this dispute transferred to the

United

States

Georgia.

District

Court

for

the

Northern

District

of

In considering a motion to transfer venue, the Court

engages in a two-step analysis.

First, the Court determines if

7

the action “might have been brought” in the Northern District of
Georgia.

28

U.S.C.

§ 1404(a).

If

the

dispute

could

have

originated in the transferee court, then the Court considers a
variety

of

factors

to

determine

whether

“the

convenience

of

parties and witnesses” and “the interest of justice” support
transfer.

Id.

Using this analysis, the Court concludes that

transfer is not appropriate.

Therefore, the action will remain

in this Court.
A.
The

Where the Action “Might Have Been Brought”
first

issue

have . . . brought”

this

District of Georgia.
(1960)

is

whether

action

the

Quasebarths

initially

in

the

“might
Northern

Id.; Hoffman v. Blaski, 363 U.S. 335, 344

(interpreting

this

requirement

to

mean

that

the

transferee court must have subject matter jurisdiction, personal
jurisdiction,
Quasebarths

and
could

venue).
have

Both

originally

Northern

District

of

Georgia.

properly

exercise

subject

matter

parties
sued
The

agree

Green

Northern

jurisdiction

that

Tree

the

in

the

District

may

because

the

parties are completely diverse and the amount in controversy
exceeds $75,000.

28 U.S.C. § 1332.

The Northern District may

also exert personal jurisdiction over Green Tree because the
company conducts substantial business in the District.

Finally,

venue is proper in the Northern District because a substantial
amount of the events giving rise to the Quasebarths’ claims

8

occurred there.

28 U.S.C. § 1391(b)(2).

In sum, there is no

dispute that the Quasebarths could have originally sued Green
Tree in the Northern District of Georgia.
B.

The § 1404(a) Factors

Second, “the convenience of parties and witnesses” and “the
interest of justice” must favor transfer.

28 U.S.C. § 1404(a).

The Eleventh Circuit has outlined nine factors for courts to
consider in making this determination:
(1) [T]he convenience of the witnesses; (2) the
location of relevant documents and the relative ease
of access to sources of proof; (3) the convenience of
the parties; (4) the locus of operative facts; (5) the
availability of process to compel the attendance of
unwilling witnesses; (6) the relative means of the
parties; (7) a forum's familiarity with the governing
law; (8) the weight accorded a plaintiff's choice of
forum; and (9) trial efficiency and the interests of
justice, based on the totality of the circumstances.
Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th Cir.
2005).

As

explained

below,

these

factors

militate

against

transferring this dispute.
1.

Neutral Factors

Several of the § 1404(a) factors are neutral.
convenience

of

the

witnesses

(factor

one),

several

As to the
witnesses

reside in the Middle District of Georgia, such as Mr. and Mrs.
Jones and individuals familiar with the Joneses’ foreclosure.1
Thus, the Middle District is most convenient for them.
1

But

Although Green Tree contends that Mr. and Mrs. Jones are party
witnesses, those individuals testifying about the Joneses’ foreclosure
are not.

9

several
Georgia,

witnesses

also

including

reside

Mr.

and

in

the

Mrs.

Northern

Quasebarth,

District
two

of

of
the

Quasebarths’ witnesses (West Craven and Mona Friedman), and two
Green Tree employees named in the Complaint and thus likely to
be called to testify.

For some of these witnesses, the Northern

District might be more convenient.

Finally, for those witnesses

residing outside Georgia, such as Karina Nichols, both venues
are

equally

inconvenient.

Because

travel

will

inconvenience

some witnesses regardless of where this case is tried, the Court
concludes that this factor is neutral.
The
neutral.

location

of

documents

(factor

two)

is

similarly

Although Green Tree attempts to argue that this factor

weighs in its favor, it admits that it is “just as eas[y]” to
transport documents to the Middle District courthouse as it is
to

transport

courthouse.

those

documents

to

the

Northern

District

Mot. to Transfer Venue, ECF No. 7-1 at 7.

Thus,

this factor is neutral.
Additionally,

the

availability

of

process

to

compel

the

attendance of unwilling witnesses (factor five) does not weigh
in favor of either venue.

Green Tree argues that this factor

weighs in favor of transfer because this Court will be unable to
compel “some witnesses” that Green Tree intends to call.
8.

Id. at

These witnesses reside in Georgia, but more than 100 miles

10

away from Columbus.2

This argument is unpersuasive.

initial

Tree

matter,

Green

fails

to

identify

any

As an

particular

witnesses who it will need to compel, instead vaguely referring
to “some witnesses.”

Green Tree has the burden of identifying

particular witnesses who are outside the Court’s subpoena power
and explaining how those witnesses are necessary to the trial.
Green Tree fails to do so.
witnesses,

its

problem

Until Green Tree points to specific

is

merely

hypothetical.

The

Court

further concludes that it is well equipped to subpoena witnesses
that

reside

in

Georgia,

but

more

than

100

miles

away

from

Columbus, as long as these witnesses will not incur substantial
expenses.

See Fed. R. Civ. P. 45(c)(1)(B)(ii).

Since both the

Northern District and Middle District have the power to compel
unwilling witnesses, this factor is neutral.
Finally,

both

parties

concede

that

they

have

similar

relative means (factor six) and that both the Northern District
and Middle District of Georgia are equally familiar with the
governing law (factor seven).
2.

Factors Favoring Transfer

The only factor favoring transfer is the locus of operative
facts

(factor

foreclosure

of

four).

This

dispute

the

Quasebarths’

2

centers

former

home

on

Green

and

the

Tree’s
events

In making this argument, Green Tree relies on Federal Rule of Civil
Procedure 45(d)(3)(C), a provision entirely irrelevant to this
dispute.

11

surrounding

that

foreclosure.

The

home

is

located

in

the

Northern District of Georgia and most of the communications that
the Quasebarths had with Green Tree before vacating their home
occurred

in

facts

did

Green

Tree’s

important
primarily

the

occur

to

Northern
in

actions
the

the

District.
Middle

towards

occurred

in

the

District

Mr.

Quasebarths’

Although

and

RICO

of

Mrs.

some

Georgia—including
Jones,

claim—the

Northern

important

which

operative

District

of

are

facts

Georgia.

Therefore, this factor weighs in favor of transfer.
3.
Two

Factors Against Transfer

factors

militate

against

transfer.

convenience of the parties (factor three),

As

to

the

Green Tree does

business all over the country, and does not reside in Georgia,
so the Northern District of Georgia is no more convenient for it
than the Middle District of Georgia.

The Quasebarths, however,

favor the Middle District even though they live in the Northern
District.

Contrary

to

Green

Tree’s

assertion,

the

Middle

District is a convenient venue for them since it is where their
counsel is located, where some of their witnesses reside, and
most importantly, it is their chosen forum.

Since both forums

are equally convenient for Green Tree, and the Middle District
is

more

convenient

for

the

Quasebarths,

against transfer.

12

this

factor

weighs

Additionally,
plaintiffs’

regarding

choice

of

forum

the

weight

(factor

accorded

eight),

courts

to

the

generally

give considerable deference to the plaintiffs’ choice of forum.
In re Ricoh Corp., 870 F.2d at 573.

This factor weighs against

transfer, even though the Court does give it less weight because
the Quasebarths do not reside in the Middle District of Georgia
and the operative facts did not occur here.
4.

Conclusion

In sum, only one factor weighs in favor of transfer and at
least one factor weighs against transfer.
neutral.
defendant,

All other factors are

“[U]nless the balance is strongly in favor of the
the

disturbed.”

plaintiff's

choice

of

forum

should

rarely

be

Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)

(emphasis added), superseded by statute as recognized in Am.
Dredging Co. v. Miller, 510 U.S. 443, 449 n.2 (1994).

The Court

concludes that Green Tree has failed to carry its burden of
demonstrating
transfer.

that

Id.

the

factors

weigh

“strongly

in

favor

of”

Thus, the Court denies Green Tree’s motion to

transfer venue.
II.

Motion to Dismiss for Failure to State a Claim
Next,

Green

Tree

asks

the

Court

to

dismiss

all

of

the

Quasebarths’ claims pursuant to Federal Rule of Civil Procedure
12(b)(6).

The Court considers each claim in turn, granting the

13

motion to dismiss the breach of contract claim, and denying the
motion as to all other claims.
A.

Timely Rescission of the Contract Releasing Claims

Green Tree argues that the Court should dismiss all of the
Quasebarths’ claims because the Quasebarths signed a contract
releasing Green Tree from all claims related to the home, in
exchange for $1,050.00.

Though the Quasebarths attempted to

rescind the contract, Green Tree argues that the rescission was
ineffective because the Quasebarths waited too long to do so.
Therefore, Green Tree argues that the original contract is still
effective and bars all of the Quasebarths’ claims.
In

Georgia,

a

“party

alleging

fraudulent

inducement

to

enter a contract has two options: (1) affirm the contract and
sue

for

damages

from

the

fraud

or

breach;

or

rescind the contract and sue in tort for fraud.”

(2)

promptly

Mitchell v.

Backus Cadillac–Pontiac, Inc., 274 Ga. App. 330, 333, 618 S.E.2d
87,

92

(2005)

(internal

quotation

marks

omitted);

accord

Kobatake v. E.I. Dupont De Nemours & Co., 162 F.3d 619, 625
(11th Cir. 1998) (per curiam).

The Quasebarths chose the latter

option, rescission.
A

plaintiff

seeking

O.C.G.A. § 13-4-60.

to

rescind

must

do

so

“promptly.”

“When the fraud is discovered the party

defrauded is put to his election to disaffirm the contract. He
should not delay without cause.”

14

Newton v. Burks, 139 Ga. App.

617, 618, 229 S.E.2d 94, 95 (1976) (internal quotation marks
omitted); see also Holloman v. D.R. Horton, Inc., 241 Ga. App.
141, 146, 524 S.E.2d 790, 795 (1999) (“An announcement of the
intent to rescind the contract must be made in a timely fashion,
as soon as the facts supporting the claim for rescission are
discovered.”).

The

question

of

whether

a

party

promptly

rescinded is highly fact dependent: Georgia law requires that a
party act “with that promptitude which the nature of the case
and environment of the circumstances would require.”

Newton,

139 Ga. App. at 618, 229 S.E.2d at 95-96 (internal quotation
marks

omitted).

Indeed,

“[w]hat

might

be

termed

as

prompt

action in one case might in another instance be regarded as
inexcusable

laches.”

Id.

Because

this

is

a

fact

question, it “is ordinarily a question for the jury.”

specific
Id. at

618, 229 S.E.2d at 96.
In limited circumstances, courts have removed the question
of promptness from the jury and determined as a matter of law
that a party waited too long to rescind.

For example, courts

applying Georgia law have found a delay of six or seven months
unreasonable as a matter of law.

See Walker v. Johnson, 278 Ga.

App. 806, 810-11, 630 S.E.2d 70, 75 (2006) (finding a six month
delay unreasonable as a matter of law); Orion Capital Partners,
L.P. v. Westinghouse Electric Corp., 223 Ga. App. 539, 543, 478

15

S.E.2d 382, 385 (1996) (concluding that a seven month delay was
too long as a matter of law).
Here, the parties disagree as to when the Quasebarths first
discovered the fraud, and thus how long they waited to rescind.
Both parties agree that the Quasebarths received a letter dated
January 29, 2013, stating that Green Tree would sell the home in
March

unless

mortgage.
inferred

the

Quasebarths

cured

the

default

on

their

Green Tree argues that the Quasebarths should have
from

postponed.

this

letter

that

the

December

foreclosure

was

Therefore, Green Tree contends that the Quasebarths

were aware, or should have been aware, of Green Tree’s alleged
misrepresentations when it received the January 29 letter.

If

so, they delayed approximately eight months in rescinding the
contract.
The Complaint, which the Court must accept as true at this
stage of the proceedings, alleges that the Quasebarths did not
know of the fraud until, at the earliest, May 23, 2013.

The

Quasebarths contend that they did not infer from Green Tree’s
letter that the December foreclosure sale did not occur.

They

contend

Tree

that

the

letter

was

confusing

because

Green

previously represented on multiple occasions that the home sold
in

December

against them.

2012,

and

even

brought

an

eviction

proceeding

The Quasebarths claim that they could not know

that Green Tree was misleading them until, at the earliest, May

16

23, 2013, when Green Tree filed a deed indicating that the home
was not sold until March.

Thus, they delayed only approximately

four months in rescinding the contract.
The essence of Green Tree’s argument in support of its
motion to dismiss is not that the Quasebarths have failed to
allege sufficient facts, which if true state a viable claim for
rescission,

but

that

those

allegations

are

not

“plausible.”

This argument suffers from a flaw described by this Court as the
“Twombly/Iqbal compulsion,” and it is unpersuasive.

See Barker

ex rel. United States v. Columbus Reg’l Healthcare Sys., Inc.,
977 F. Supp. 2d 1341, 1345-56 (M.D. Ga. 2013).
Taking
Quasebarths

the
did

Quasebarths’
not

allegations

discover

Green

as

true,

Tree’s

the

alleged

misrepresentations until, at the earliest, May 2013, and thus
delayed approximately four months in rescinding their contract.
Finding this delay to be unreasonable as a matter of law would
arrogate

to

the

judge

the

role

of

factfinder,

a

role

not

authorized by Federal Rule of Civil Procedure 12(b)(6) or the
Seventh Amendment to the U.S. Constitution.
whether the delay

was unreasonable.

A jury will decide

Green Tree’s

motion to

dismiss due to untimely rescission is denied.
B.

Georgia RICO Claim

The Georgia

RICO

Act provides:

“It is unlawful for any

person, through a pattern of racketeering activity or proceeds

17

derived

therefrom,

to

acquire

or

maintain,

directly

or

indirectly, any interest in or control of any enterprise, real
property, or personal property of any nature, including money.”
O.C.G.A. § 16-14-4(a).
violated

RICO

by

The Quasebarths allege that Green Tree

engaging

in

a

fraud, and theft by deception.

pattern

of

mail

fraud,

wire

They also allege that Green Tree

made false or fraudulent representations and committed perjury.
Green

Tree

engaged

Quasebarths,

in

against

such

Mr.

activities,
Mrs.

and

according
Ms.

Jones,

to

the

Nichols,

and

themselves.
To have standing to bring a civil claim under Georgia’s
RICO statute, a plaintiff must prove by a preponderance of the
evidence

that

(1)

the

defendant

violated

the

RICO

statute,

(2) the plaintiff suffered an injury, and (3) the defendant’s
RICO

violation

connected.

and

the

plaintiff’s

injury

are

causally

See Wylie v. Denton, 323 Ga. App. 161, 165, 746

S.E.2d 689, 693 (2013).
Green
dismiss.

Tree

only

contests

causation

in

its

motion

to

To prove causation, there must be a “direct nexus

between at least one of the predicate acts listed under the RICO
Act

and

the

injury . . . purportedly

sustained.”

Schoenbaum

Ltd. Co. v. Lenox Pines, LLC, 262 Ga. App. 457, 470, 585 S.E.2d
643, 655 (2003) (internal quotation marks omitted).

“Thus, to

survive a motion to dismiss, a plaintiff asserting a RICO claim

18

must allege . . . that her injury was the direct result of a
predicate

act

targeted

intended victim.”
694.

toward

her,

such

that

she

was

the

Denton, 323 Ga. App. at 166, 746 S.E.2d at

“This burden is not met where a plaintiff shows merely

that his injury was an eventual consequence of the [predicate
act]

or

that

[predicate

he

act].”

would
Id.

not

have

been

(alterations

in

injured

but

original)

for

the

(internal

quotation marks omitted); see e.g., Nicholson v. Windham, 257
Ga. App. 429, 431, 571 S.E.2d 466, 469 (2002) (“[T]he injury[plaintiff's] termination [based on her refusal to participate
in her employer’s criminal scheme]-stemmed from her refusal to
participate

rather

circumstances,

the

than
harm

the
is

solicitation
indirect

itself.

rather

Under

than

these

direct.”);

Maddox v. S. Eng’g Co., 231 Ga. App. 802, 806, 500 S.E.2d 591,
594

(1998)

(finding

misrepresentations

no

were

causation
made

to

a

because
state

the

defendant’s

agency,

not

the

plaintiff).
Here, Green Tree contends that the Quasebarths’ injury was
not caused by Green Tree’s representations, but by their own
failure to pay their mortgage.

Although this argument may have

some appeal to a jury at trial, it is unconvincing at the motion
to dismiss stage, where the Court must simply decide whether the
Quasebarths’ allegations state a claim upon which relief may be
granted.

19

The

Quasebarths

misrepresentations

allege

about

the

that

status

of

Green
their

Tree

home,

made

including

that their home was sold and that they no longer had any rights
to it.

Relying on these misrepresentations, the Quasebarths

believed

that

contract

releasing

their home.

they

no

longer

all

owned

claims

their

against

home

Green

and

Tree

signed

related

a
to

Therefore, as a result of relying on Green Tree’s

misrepresentations, the Quasebarths suffered the injuries they
complain

of—the

loss

of

their

home,

emotional, and financial hardship.

as

well

as

physical,

These facts are sufficient,

at least at the motion to dismiss stage, to show a direct link
between

the

alleged

misrepresentations,

and

predicate
the

act,

injury.

Green

Finding

Tree’s
that

the

Quasebarths alleged sufficient facts to satisfy the causation
requirement, the Court denies Green Tree’s motion to dismiss the
RICO claim.
C.
The

Tortious Interference with Property Rights
Quasebarths

allege

that

Green

Tree

tortiously

interfered with their property rights under O.C.G.A. § 51-9-1.
The

Quasebarths

argue

that

Green

Tree

interfered

with

their

property rights when it misrepresented to the Quasebarths that
their home was sold, even though it knew that the Quasebarths
were

still

the

misrepresentations,

rightful
the

owners.

Quasebarths

20

Relying
vacated

their

on
home

these
and

signed an agreement releasing their claims to the home.
the

Quasebarths

allege

that

Green

Tree’s

Thus,

misrepresentations

unlawfully interfered with their enjoyment of their property.
In Georgia, “[t]he right of enjoyment of private property
being an absolute right of every citizen, every act of another
which unlawfully interferes with such enjoyment is a tort for
which an action shall lie.”
claim

for

plaintiff

tortious
must

defendant]

interference

show

ever

O.C.G.A. § 51-9-1.

that

there

interfered

interests in the realty.”

with

with
is

property

some

[the

To make out a
rights,

“evidence

that

plaintiff’s]

the
[the

possessory

Tower Fin. Servs., Inc. v. Mapp, 198

Ga. App. 563, 564, 402 S.E.2d 286, 288 (1991).
Green Tree argues that the Court should dismiss this claim
because,
cannot

according

give

rise

to
to

property rights.

Green
a

Tree,

claim

for

an

attempted

tortious

foreclosure

interference

with

To support this argument, Green Tree relies on

the Court’s previous order in Hauf v. HomeQ Servicing Corp, No.
4:05-CV-109
2007).

(CDL),

2007

WL

486699,

*6

(M.D.

Ga.

Feb.

9,

But the Court in Hauf did not hold that a tortious

interference

with

property

claim

attempted wrongful foreclosure.
denied

at

summary

judgment

foreclosure claim.

on

could

never

arise

from

In fact, the Court in

plaintiffs’

attempted

Moreover, to the extent that

an

Hauf

wrongful

Green Tree

relies on the Court’s rationale in Hauf that a trespass claim

21

arising from a wrongful foreclosure typically requires an entry
onto the property or damage to it, the Court finds that the
Quasebarths here have alleged such entry and injury.

See id.

(“Plaintiffs have not stated a claim for trespass because they
failed

to

Quasebarths

allege

an

entry

allege

that

onto

because

of

their

property.”).

Green

Tree’s

The

unauthorized

foreclosure, Green Tree sold their home, and that the buyer
presumably entered the property.

By facilitating such entry and

preventing the Quasebarths from remaining in their home, Green
Tree interfered with the Quasebarths’ right to retain possession
of their property without the interference of others.

The Court

may reconsider this ruling when the facts are established at
summary judgment, but at this stage, the Court finds that the
Quasebarths
claim.

have

alleged

enough

to

avoid

dismissal

of

this

Accordingly, the Court denies the motion to dismiss the

tortious interference claim.
D.

Fraud

The Quasebarths also allege that Green Tree defrauded them
by

making

false

foreclosure sale.

representations

regarding

postponing

the

Green Tree urges the Court to dismiss this

claim for two reasons.

Both are unpersuasive.

First, Green Tree contends that the Quasebarths allege only
“broken

promises”

or

“unfulfilled

predictions,”

insufficient to support a claim for fraud.

22

which

are

Greenwald v. Odom,

314

Ga.

App.

quotation

46,

723

S.E.2d

omitted).

marks

53,

More

305,

313

(2012)

specifically,

(internal

Green

Tree

contends that the Quasebarths fail to allege that Green Tree
made the representations with no intention of following through
on them.

But

the Quasebarths

repeatedly

insist

at numerous

points throughout the Complaint that Green Tree never intended
to fulfill its promises.
false

representation

deceive

[him]

default.”

and

Compl.

to

For example: “[Green Tree] made this
[Mr.

cause
¶

Quasebarth]

[him]

150.

to

And

with

refrain

again:

the

from

“[Green

intent
curing

Tree]

to
the

had

no

intention of notifying [the Quasebarths] whether [they] w[ere]
approved for the Modification.”

Id. ¶ 35.

At a later stage in

this dispute, the Quasebarths may be unable to produce evidence
to

support

these

allegations.

But

for

now,

they

have

sufficiently alleged facts that if proven true state a viable
claim for fraud.
Green
allege

Tree

that

the

also

contends

fraudulent

that

the

statements

Quasebarths

caused

their

fail

to

damages.

Again, Green Tree ignores the Quasebarths’ contention that they
relied

on

Green

Tree’s

misrepresentations,

and

as

a

result

failed to cure the default on their mortgage and vacated their
home.

Thus, Green Tree’s motion to dismiss the fraud claim is

denied.

23

E.

Breach of Contract

The Quasebarths concede that their Complaint does not state
a claim for breach of contract.

Therefore, the Court grants

Green Tree’s motion to dismiss the breach of contract claim.

CONCLUSION
As discussed above, the Court denies Green Tree’s motion to
transfer

venue.

(ECF

No.

7).

The

Court

dismisses

the

Quasebarths’ breach of contract claim but denies Green Tree’s
motion to dismiss the Quasebarths’ remaining claims.

(ECF No.

8).
IT IS SO ORDERED, this 3rd day of March, 2015.

S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

24