MORTON v. BANK OF AMERICA CORPORATION
Filing
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ORDER granting 6 Motion to Dismiss for Failure to State a Claim. Ordered by Judge C. Ashley Royal on 9/7/12 (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ELLET D. MORTON,
:
:
Plaintiff,
:
:
v.
:
:
No. 5:12‐CV‐188 (CAR)
BANK OF AMERICA CORPORATION:
d/b/a BANK OF AMERICA, N.A.,
:
:
Defendant.
:
___________________________________ :
ORDER ON MOTION
Before the Court is Defendant Bank of America Corporation’s1 (“BOA”) Motion
to Dismiss Plaintiff Ellet D. Morton’s Complaint [Doc. 6]. Therein, BOA contends that
Plaintiff’s Complaint, requesting monetary and equitable relief, should be dismissed in
its entirety. Having considered the matter and the applicable law, the Court concludes
that Plaintiff’s Complaint is barred by judicial estoppel and fails to state a claim upon
which relief may be granted. Accordingly, Defendant BOA’s Motion to Dismiss [Doc.
6] is GRANTED.
LEGAL STANDARD
Plaintiff incorrectly identified Bank of America Corporation as Defendant Bank of America
Corporation d/b/a/ Bank of America, N.A.
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On a motion to dismiss, the Court must accept as true all well‐pleaded facts in a
plaintiff’s complaint. Sinaltrainal v. Coca‐Cola Co., 578 F.3d 1252, 1260 (11th Cir.
2009). To avoid dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), “a
complaint must contain specific factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, ‐‐‐, 129 S. Ct. 1937,
1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974 (2007)). A claim is plausible where the plaintiff alleges factual content that
“allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. The plausibility standard requires that a plaintiff allege
sufficient facts “to raise a reasonable expectation that discovery will reveal evidence”
that supports a plaintiff’s claims. Bell Atlantic Corp., 550 U.S. at 556, 127 S. Ct. at 1965.
BACKGROUND
On December 11, 2006, Plaintiff purchased property located at 619 College
Street, Macon, Georgia (the “Property”). The next day Plaintiff obtained a
construction mortgage from BOA and executed a security deed in its favor. The
construction mortgage was to convert into a permanent mortgage in one year upon
the completion of construction and subsequent building inspection by BOA.2
It is unclear when, if ever, Plaintiff’s construction mortgage converted into a permanent mortgage. For
all intents and purposes, it appears Plaintiff believed this conversion happened on December 12, 2007,
2
2
From the date of expected conversion in December of 2007 until the spring of
2008, Plaintiff attempted, without success, to learn the amount of his new monthly
payment under the permanent mortgage. In January of 2008, without knowing this
amount, Plaintiff made his first payment on what he believed to be his permanent
mortgage. Subsequently, BOA “began removing” money from Plaintiff’s eighteen
BOA checking accounts and applying the money toward his loan. [Doc. 1.1 ¶ 16]. The
Complaint is silent as to the total amount removed and how often BOA removed
money from Plaintiff’s accounts.3
Eventually that spring, BOA informed Plaintiff that his construction mortgage
number did not exist and that there was no record of a permanent mortgage number.
Notwithstanding, Plaintiff later received loan modification paperwork from BOA.
Plaintiff, attempting to “clear up [this] issue,” spoke with an individual at McCalla
Raymer, LLC, BOA’s retained law firm, who told him that he would contact BOA and
then contact Plaintiff. [Doc. 1.1 ¶ 20].
More than a year later in June of 2009, Plaintiff hired United Law Group
(“United”), a loan modification firm in California, to represent him. Plaintiff did not
have any further contact with BOA until 2010. Aside from these allegations, the
although Plaintiff’s rendition of the facts indicates that in the spring of 2008 he learned this conversion
might not have happened.
3 The Court notes that Plaintiff does not allege in his Complaint that he made any other payments, aside
from his initial January 2008 payment.
3
Complaint is silent as to what, if anything (including whether Plaintiff made any
payments on his loan), happened between the spring of 2008 and the spring of 2010.
On March 2, 2010, unbeknownst to Plaintiff, BOA foreclosed on the Property.
Six days later on March 8, Plaintiff received a letter from BOA informing him of the
foreclosure. Upon receipt of this letter, Plaintiff contacted United who in turn learned
that Plaintiff’s loan modification was being processed. Around that time, BOA also
informed United and Plaintiff via conference call, that no such loan existed.
Bankruptcy Proceedings
On July 2, 2010, Plaintiff filed for Chapter 7 Bankruptcy in the Southern District
Court of Florida, in part because of BOA’s conduct.4 In his filing, Plaintiff
acknowledged that BOA was a secured creditor of the Property and alleged in his
Statement of Intention that he intended to retain the Property and reaffirm the debt to
BOA. In his Statement of Financial Affairs, Plaintiff did not list his claims against BOA
as a potential asset on his bankruptcy schedule. That fall during his bankruptcy
proceedings, Plaintiff learned that his loan had a new number and lender and that the
March 2, 2010 foreclosure had not been conducted under his original loan number.
Pursuant to Rule 201(b) of the Federal Rules of Evidence, a court has the discretion to sua sponte take
judicial notice of certain facts, including court documents from a prior proceeding. Fed. R. Evid. 201(b);
Horne v. Potter, 392 F. App’x 800, 802 (11th Cir. 2010) (holding district court may take judicial notice of
public records, including prior court proceedings, without converting a motion to dismiss into a motion
for summary judgment). In this case, the Court sua sponte takes judicial notice of Plaintiff’s prior
bankruptcy proceeding, In re Ellet D. Morton, 10‐29034‐JKO.
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On October 14, 2010, Plaintiff’s bankruptcy proceedings were discharged and
his debts were discharged in the full amount of $5,585,520.04. Plaintiff’s bankruptcy
action was closed on January 28, 2011.
Post‐Bankruptcy
In January of 2011, Plaintiff received two different letters from BOA, one
informing him that his loan had a new lender and the other informing him that there
was not a new lender. In June, Plaintiff received a third letter from BOA informing
him that it, BOA, was the lender of his loan, and providing Plaintiff with a new loan
number.
Almost one year later in March of 2012, Plaintiff called BOA to determine what
loans existed under his social security number. BOA informed Plaintiff that his loan
was in active foreclosure and had not been sold. On April 2, 2012, BOA filed a
dispossessory action in the Bibb County Magistrate Court, and Plaintiff filed an
answer on April 10, 2012.
Procedural History
On April 13, 2012, Plaintiff filed the instant action in Bibb County Superior
Court against BOA alleging the following five counts: wrongful foreclosure,
intentional infliction of emotional distress, misrepresentation and fraud, negligence,
and “equity/temporary injunction.” BOA was served with process on May 2, 2012,
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and after filing an answer and a motion to dismiss, BOA removed the action to this
Court on May 25, 2012. BOA subsequently renewed and refiled its Motion to Dismiss
in this Court.
DISCUSSION
A. Plaintiff’s Claims for Damages
In its Motion, BOA contends that Plaintiff is judicially estopped from pursuing
his claims for wrongful foreclosure, intentional infliction of emotional distress,
misrepresentation and fraud, and negligence because Plaintiff failed to disclose the
instant lawsuit for monetary damages in his prior bankruptcy action. The Court
agrees.
Judicial estoppel is an equitable doctrine which prevents a party from
“asserting a claim in a legal proceeding that is inconsistent with a claim taken by that
party in a previous proceeding.” Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273
(11th Cir. 2010) (internal quotations and citation omitted). The Eleventh Circuit
applies “a two part test for judicial estoppel[:] (1) has the party previously adopted an
inconsistent position under oath in a judicial proceeding, and (2) did the party intend
to make a mockery of the judicial system.” See Jones v. United States, No. 1:11‐cv‐
00771‐JOF, 2012 WL 833320, at *2 (11th Cir. Mar. 14, 2012) (per curiam) (citing Burnes
v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir. 2002)). These factors are not
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exhaustive, and the Court must “give due consideration to the circumstances of the
particular case.” Robinson, 595 F.3d at 1273.
Here, the first factor, taking an inconsistent position under oath, is satisfied
because Plaintiff did not disclose this lawsuit against BOA as an asset in his financial
statement. “A debtor seeking shelter under the bankruptcy laws has a statutory duty
to disclose all assets, or potential assets to the bankruptcy court.” Id. at 1274 (citing 11
U.S.C. §§ 521(1), 541(a)(7)). “The duty to disclose is a continuing one that does not end
once the forms are submitted to the bankruptcy court; rather the debtor must amend
[his] financial statements if circumstances change.” Id. (internal quotations and
citation omitted).
Plaintiff argues that in both his bankruptcy action and this lawsuit, he has been
consistent with his intention to keep the Property and reaffirm the debt to BOA and
therefore he has not taken inconsistent positions under oath. The Court finds
Plaintiff’s argument to be ignorant of the applicable law. In determining whether a
plaintiff takes inconsistent positions under oath, a court considers whether he failed to
disclose potential assets to the bankruptcy court that were known or anticipated at the
time of his filing. See Burnes, 291 F.3d at 1285. The Court does not, as Plaintiff
reasons, focus on whether he had the same intentions in both filings. Thus, because
Plaintiff does not allege that he listed the instant lawsuit against BOA as a potential
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asset, a fact supported by the bankruptcy record, the Court concludes that Plaintiff’s
initiation of the present lawsuit constitutes the taking of inconsistent positions under
oath.
Next the Court considers the second factor of judicial estoppel, Plaintiff’s
intention. When considering a partyʹs intent, the Eleventh Circuit requires
“intentional contradictions, not simple error or inadvertence.” Robinson, 595 F.3d at
1275 (internal quotations and citation omitted). “[D]eliberate or intentional
manipulation can be inferred from the record, where the debtor has knowledge of the
undisclosed claims and has motive for concealment.” Barger v. City of Cartersville,
Ga., 348 F.3d 1289, 1294 (11th Cir. 2003 (quotation omitted). “Preventing assets from
becoming part of a bankruptcy estate, and thus facilitating a discharge, is sufficient to
satisfy the motive for concealment requirement.” Smith v. Wayne Farms, L.L.C., No.
CV‐11‐5‐3590‐NE, 2012 WL 1746857, at *3 (N.D. Ala. 2012).
Based upon the facts alleged in his Complaint, the Court finds that Plaintiff had
the requisite intent to satisfy the second factor of judicial estoppel. Plaintiff’s
Complaint clearly alleges that the foreclosure occurred on March 2, 2010, that Plaintiff
received notice of this foreclosure on March 8, 2010, and that he filed for bankruptcy
on July 2, 2010. Moreover, Plaintiff’s claims against BOA are based on events that
occurred prior to and during the pendency of his bankruptcy, indicating that Plaintiff
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was aware of the facts that formed the basis of his claims during his bankruptcy action
and that he neither disclosed this lawsuit nor revised his bankruptcy petition to reflect
this potential asset. And finally, Plaintiff had motive to conceal a potential lawsuit, as
his debts were discharged in the full amount of $5,585,520.04. The disclosure of this
suit would have jeopardized that outcome. The Court thus concludes that Plaintiff
was aware of his anticipated claims against BOA and had motive for concealment.
The Court further concludes that there are not any specific circumstances of
Plaintiff’s case that make judicial estoppel otherwise inappropriate, nor does Plaintiff
identify any for this Court’s consideration. Additionally, the Court acknowledges that
Plaintiff is represented by counsel in this case and he was represented by counsel in
his prior bankruptcy case. Accordingly, Plaintiff’s claims for wrongful foreclosure,
intentional infliction of emotional distress, misrepresentation and fraud, and
negligence are barred by judicial estoppel and are thus DISMISSED.
B. Plaintiff’s Claim for Declaratory and Injunctive Relief
The Court next considers Plaintiff’s nonmonetary claims for declaratory and
injunctive relief. In his Complaint, Plaintiff requests a temporary injunction to prevent
Defendant from evicting him from the Property during the litigation and a declaratory
judgment to determine the actual holder of the mortgage. Unlike Plaintiff’s monetary
claims for relief, his claims for equitable relief are not barred by judicial estoppel as
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they offer no value to Plaintiff’s bankruptcy estate and do not affect his creditors or
Trustee. Notwithstanding, Plaintiff’s requests for equitable relief must also be
dismissed.
Plaintiff first requests a temporary injunction to prevent Defendant from
evicting Plaintiff from the Property. However, based on the Court’s instant ruling,
there are not any remaining substantive claims for which Plaintiff is entitled to receive
an injunction. Johnson v. Wellborn, 418 F. App’x 809, 816‐17 (11th Cir. 2011) (citation
omitted) (“Because the amended complaint’s allegations do not support any
substantive claims, [plaintiff] was not entitled to receive an injunction based on these
claims.”). Accordingly, Plaintiff’s request for a temporary injunction is DISMISSED.
Similarly, Plaintiff’s request for declaratory relief is also due to be dismissed as
there is not a remaining controversy at issue. MacLean v. City of St. Petersburg, 194 F.
Supp. 2d 1290, 1304 (M.D. Fla. 2002). The Declaratory Judgment Act, 28 U.S.C. §
2201(a), provides,
In a case of actual controversy, within its jurisdiction … any court of the
United States, upon the filing of an appropriate pleading, may declare
the rights and other legal relation of any interested party seeking such
declaration, whether or not further relief is or could be sought. Any such
declaration shall have the force and effect of a final judgment or decree
and shall be reviewable as such.
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28 U.S.C. § 2201(a). The Declaratory Judgment Act “does not enlarge the jurisdiction
of federal courts but rather is operative only in respect to controversies which are such
in the constitutional sense…. Thus the operation of the Declaratory Judgment Act is
procedural only.” McLean, 194 F. Supp. 2d at 1304. (citation and internal quotation
omitted). Here, because there are no longer any underlying substantive claims, there
is not a proper “controversy” in this case to warrant declaratory relief. Accordingly,
Plaintiff’s request for declaratory judgment is DISMISSED.
CONCLUSION
Based on the foregoing, the Court concludes that Plaintiff’s claims are barred by
judicial estoppel and fail to state a claim for which relief may be granted. Accordingly,
Defendant’s Motion to Dismiss [Doc. 6] is GRANTED.
SO ORDERED, this 7th day of September, 2012.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
LMH
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