WRIGHT v. BANK OF AMERICA
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
BANK OF AMERICA and DEUTSCHE
BANK TRUST COMPANY,
CASE NO. 4:16-CV-87 (CDL)
O R D E R
Presently pending before the Court is Defendants’ motion to
dismiss Plaintiff Loretta Wright’s amended complaint.
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
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.
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.
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).
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).
Court permitted Wright to file an amended complaint, and the
factual allegations that support each claim.”
2017, ECF No. 25.
Order 3, Jan. 5,
Wright filed an amended complaint, but she
still has not clearly articulated the factual bases for her
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
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
Security Deed, ECF No. 32-3.
The security deed was transferred
to Deutsche Bank, and Bank of America serviced the loan.
payments, and she alleges that Bank of America refused “all
reasonable offers on numerous occasions in any amount to bring
allege any specific facts about the deficiencies or her efforts
to cure them.
Under Power, ECF No. 32-2.
¶ 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.
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
Wright appears to be attempting to raise seven claims.
Court will address each one in turn.
First, Wright tries to assert a claim against Defendants
alleges “violates the Constitution.”
Am. Compl. ¶ 4(1).
did not allege any facts regarding the non-judicial foreclosure
proceeding in her case, and she did not state how it violated
In addition, Wright did not allege any facts
to suggest that Defendants were state actors who can be subject
violates her “civil rights under the Civil Rights Act of 1964.”
Am. Compl. ¶ 4(2).
In general, the Civil Rights Act of 1964
such as race, in several contexts.
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.”
For these reasons, any claim based on the allegedly
adhesive nature of the Security Deed fails.
Fourth, Wright claims that Bank of America violated the
terms of the Security Deed “by refusing all reasonable offers on
Am. Compl. ¶ 4(3).
Wright did not point to any
specific provisions of the Security Deed that were allegedly
default occurs if there is a payment deficiency unless that
Security Deed 2 ¶ 2.
Wright appears to acknowledge
that there was a deficiency on her account, but she did not
payment was due.
And she did not allege any other facts to
suggest that Bank of America violated the terms of the Security
Accordingly, this claim fails.
Fifth, Wright claims that Bank of America “reneged on a
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
Molina v. Aurora Loan Servs., LLC, 635 F. App’x
618, 626 (11th Cir. 2015).
Finally, Wright asserts that Bank of America violated the
U.S.C. §§ 2601-2617, and the Truth in Lending Act (“TILA”), 15
U.S.C. § 1601 et seq., by refusing “numerous short sales.”
Compl. ¶ 4(3).
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
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.”
servicer to respond to a borrower’s request for approval of a
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
12 C.F.R. § 1024.41(a).
For these reasons,
Wright’s RESPA claim fails.
Similarly, Wright’s amended complaint does not state a TILA
Under TILA, loan servicers must make certain disclosures
based on a consumer’s request.
See 15 U.S.C. § 1641(f)(2).
Wright does not allege that Bank of America failed to make these
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
Accordingly, her TILA claim fails.
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
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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