WRIGHT v. BANK OF AMERICA

Filing 37

ORDER granting 34 Motion to Dismiss for Failure to State a Claim. Ordered by US DISTRICT JUDGE CLAY D LAND on 04/07/2017. (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
LORETTA WRIGHT,

*

Plaintiff,

*

vs.

*

BANK OF AMERICA and DEUTSCHE
BANK TRUST COMPANY,

*

CASE NO. 4:16-CV-87 (CDL)

*
Defendants.
*
O R D E R
Presently pending before the Court is Defendants’ motion to
dismiss Plaintiff Loretta Wright’s amended complaint.

For the

reasons set forth below, the motion (ECF No. 34) is granted.
MOTION TO DISMISS STANDARD
“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.
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).

In ruling on a motion to dismiss, the Court may

consider exhibits attached to the complaint.

Brooks v. Blue

Cross & Blue Shield of Florida, Inc., 116 F.3d 1364, 1368 (11th
Cir. 1997) (per curiam).
FACTUAL ALLEGATIONS
Wright, who is proceeding pro se, filed a complaint that
failed to articulate a short and plain statement of her claims
as required under Federal Rule of Civil Procedure 8(a)(2).

The

Court permitted Wright to file an amended complaint, and the
Court

instructed

forth

“exactly

Wright
what

that

claims

the

amended

Wright

is

complaint

pursuing”

factual allegations that support each claim.”
2017, ECF No. 25.

must

and

set

“basic

Order 3, Jan. 5,

Wright filed an amended complaint, but she

still has not clearly articulated the factual bases for her
claims.

Defendants seek dismissal of the amended complaint.

Wright contends that she was injured because of the actions
of Defendants Bank of America and Deutsche Bank National Trust
Company.

Am. Compl. 4, ECF No. 32.

Based on the amended

complaint and its attachments, Wright alleges that she executed
a security deed on certain real property as security for a loan
from

the

Secretary

of

Veterans

2

Affairs.

Am.

Compl.

Ex

C,

Security Deed, ECF No. 32-3.

The security deed was transferred

to Deutsche Bank, and Bank of America serviced the loan.
appears

to

acknowledge

that

she

fell

behind

on

Wright

her

loan

payments, and she alleges that Bank of America refused “all
reasonable offers on numerous occasions in any amount to bring
current

any

deficiency.”

Am.

Compl.

¶ 4(3)).

She

did

not

allege any specific facts about the deficiencies or her efforts
to cure them.
In

2014,

the

property

foreclosure proceeding.

Id.

Under Power, ECF No. 32-2.

was

sold

in

a

non-judicial

¶ 4(1); Am. Compl. Ex. B, Deed

Wright did not allege any specific

facts about the non-judicial foreclosure proceeding.
2016, Wright was evicted from the property.

And in

Am. Compl. Ex. A,

Writ of Possession & Judgment, ECF No. 32-1.

Wright did not

allege any specific facts about the events giving rise to her
eviction.
DISCUSSION
Wright appears to be attempting to raise seven claims.

The

Court will address each one in turn.
First, Wright tries to assert a claim against Defendants
based

on

the

non-judicial

foreclosure

alleges “violates the Constitution.”

process,

which

Wright

Am. Compl. ¶ 4(1).

Wright

did not allege any facts regarding the non-judicial foreclosure
proceeding in her case, and she did not state how it violated

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the Constitution.

In addition, Wright did not allege any facts

to suggest that Defendants were state actors who can be subject
to

such

constitutional

constitutional

claim

claims.

based

For

on

the

these

reasons,

non-judicial

Wright’s

foreclosure

process fails.
Second,

Wright

summarily

alleges

that

the

Security

Deed

violates her “civil rights under the Civil Rights Act of 1964.”
Am. Compl. ¶ 4(2).
prohibits

In general, the Civil Rights Act of 1964

discrimination

based

on

such as race, in several contexts.

protected

characteristics,

See generally Civil Rights

Act of 1964, Pub. L. 88-352, 78 Stat. 241.

Wright did not make

any factual allegations in support of this “civil rights” claim,
and the claim fails for that reason.
Third, Wright alleges that the Security Deed “constitute[s]
an adhesion contract,” Am. Compl. ¶ 5, although she also asserts
that she did not have a contract with either Defendant, id. ¶ 6.
Wright did not allege any other facts on this point, and it is
not clear what relief she is seeking based on this allegation.
“And, in any event, the fact that a contract is adhesive does
not, standing alone, render the contract unenforceable.”
v.

Levine,

649

S.E.2d

333,

Lenders,

Inc.

2007).

For these reasons, any claim based on the allegedly

adhesive nature of the Security Deed fails.

4

336

(Ga.

Realty

Ct.

App.

Fourth, Wright claims that Bank of America violated the
terms of the Security Deed “by refusing all reasonable offers on
numerous

occasions

deficiency.”

in

any

amount

Am. Compl. ¶ 4(3).

to

bring

current

any

Wright did not point to any

specific provisions of the Security Deed that were allegedly
violated.

The

Court

notes

that

under

the

Security

Deed,

a

default occurs if there is a payment deficiency unless that
deficiency
payment.

is

“made

good”

before

Security Deed 2 ¶ 2.

the

due

date

of

the

next

Wright appears to acknowledge

that there was a deficiency on her account, but she did not
allege

that

any

deficiency

payment was due.

was

“made

good”

before

her

next

And she did not allege any other facts to

suggest that Bank of America violated the terms of the Security
Deed.

Accordingly, this claim fails.
Fifth, Wright claims that Bank of America “reneged on a

TARP agreement.”

Am. Compl. ¶ 4(3).

The Court construes this

allegation as an attempt to assert a claim under the Troubled
Asset Relief Program (“TARP”).

The Eleventh Circuit has held

that there is no private right of action under TARP, so this
claim fails.

Molina v. Aurora Loan Servs., LLC, 635 F. App’x

618, 626 (11th Cir. 2015).
Finally, Wright asserts that Bank of America violated the
Real

Estate

Settlement

Procedures

Act

(“RESPA”),

12

U.S.C. §§ 2601-2617, and the Truth in Lending Act (“TILA”), 15

5

U.S.C. § 1601 et seq., by refusing “numerous short sales.”
Compl. ¶ 4(3).

Am.

It is not clear which provision of RESPA Wright

contends Bank of America violated.

Under RESPA, a loan servicer

must respond to borrower inquiries “for information relating to
the

servicing

2605(e)(1)(A).
scheduled

of

[the

“The

periodic

borrower’s]

term

loan.”

‘servicing’

payments

from

a

12

means

borrower

U.S.C. §

receiving

pursuant

any

to

the

terms of any loan, including amounts for escrow accounts . . .,
and making the payments of principal and interest and such other
payments with respect to the amounts received from the borrower
as may be required pursuant to the terms of the loan.”
U.S.C. §

2605(i)(3).

RESPA

thus

does

not

require

a

12
loan

servicer to respond to a borrower’s request for approval of a
short

sale.

Also,

although

RESPA’s

regulations

set

forth

procedures for loss mitigation if a borrower submits a complete
loss mitigation application (which Wright does not allege she
did), nothing in the statute or regulations “imposes a duty on a
servicer

to

provide

mitigation option.”

any

borrower

with

12 C.F.R. § 1024.41(a).

any

specific

loss

For these reasons,

Wright’s RESPA claim fails.
Similarly, Wright’s amended complaint does not state a TILA
claim.

Under TILA, loan servicers must make certain disclosures

based on a consumer’s request.

See 15 U.S.C. § 1641(f)(2).

But

Wright does not allege that Bank of America failed to make these

6

disclosures.

Rather, she alleges that Bank of America “refused

numerous short sales.”

Am. Compl. ¶ 4(3).

Wright did not cite—

and the Court did not find—any TILA provision that requires a
loan servicer to agree to a short sale of a property subject to
a mortgage.

Accordingly, her TILA claim fails.
CONCLUSION

In summary, although the Court gave Wright an opportunity
to amend her complaint so that she could articulate her claims
clearly and set forth a factual basis for each claim, Wright’s
amended complaint does not state a claim upon which relief can
be

granted.

Defendants’

motion

to

dismiss

(ECF

No.

34)

is

therefore granted.
IT IS SO ORDERED, this 7th day of April, 2017.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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