HENRY v. CALUSA INVESTMENTS LLC et al
Filing
8
ORDER granting 5 Motion to Dismiss for Failure to State a Claim. Plaintiffs Complaint is hereby DISMISSED. Ordered by Judge C. Ashley Royal on 4/25/13 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
GEORGE W. HENRY,
:
:
Plaintiff,
:
CASE NO.
v.
:
5:12‐cv‐309 (CAR)
:
CALUSA INVESTMENTS, LLC; HSBC
:
MORTGAGE SERVICES INC.; and
:
MORTGAGE ELECTRONIC
:
REGISTRATION SYSTEMS, INC.;
:
:
Defendants.
:
ORDER ON DEFENDANTS’ MOTION TO DISMISS
Plaintiff filed this action for declaratory relief pursuant to the Declaratory
Judgment Act, 28 U.S.C. § § 2201‐2202 (the “Act”), seeking a declaratory judgment as to
the “true identity” of the owner and holder of his mortgage loan. Currently before the
Court is Defendants HSBC Mortgage Services Inc.’s (“HSBC”) and Mortgage Electronic
Systems, Inc.’s (“MERS”) Motion to Dismiss [Doc. 5] Plaintiff’s Complaint. Plaintiff,
who is represented by counsel, did not file a response to the Motion. Having considered
the Motion and applicable law, the Court hereby GRANTS Defendants’ Motion [Doc.
5], and Plaintiff’s Complaint is hereby DISMISSED.
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STANDARD OF REVIEW
On a motion to dismiss, the Court must accept as true all well‐pleaded facts in a
plaintiff’s complaint.1 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.’”2 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.”3 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.4 “While a complaint attacked by a
Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.”5 Factual allegations must be enough to raise a right to relief above the
speculative level.6
Sinaltrainal v. Coca‐Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
3 Id.
4 Twombly, 550 U.S. at 556.
5 Id. at 545.
6 Id.
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BACKGROUND
According to the Complaint, on September 13, 2006, Plaintiff obtained a
mortgage loan from Defendant Calusa Investments, LLC (“Calusa”).7 Plaintiff executed
a promissory note for $285,900.00 in favor of Calusa (“Note”).8 As security for
repayment of the loan, Plaintiff executed a security deed in favor of MERS as nominee
for Calusa, which was recorded in the public records of Putnam County, Georgia
(“Security Deed”).9 On January 27, 2012, the Security Deed was assigned from MERS to
HSBC via an assignment recorded in the public records of Putnam County.10
Plaintiff then alleges that he is confused about the “true identity” of the entity
that holds the servicing rights to the Note and/or the Security Deed.11 This confusion,
Plaintiff claims, has prevented him from engaging in “meaningful loss mitigation.”12
Plaintiff claims he is in “immediate danger” of (1) being delinquent on payments due
under the Note; (2) being in default; (3) having all payments due under the Note
accelerated; (4) having negative items reported on his credit report; (5) being unable to
engage in modification or other loss mitigation; (6) being foreclosed upon; and (7) being
evicted.13 Plaintiff claims his attempts to ascertain the identity of the holder of the Note
Compl. ¶ 9,
Id.
9 Id.
10 Id. at ¶ 10.
11 Id. at ¶ 13.
12 Id.
13 Id. at ¶ 16.
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and Security Deed have been unsuccessful.14 Thus, Plaintiff asks the Court to enter a
declaratory judgment addressing the identity of the “legitimate owner and holder of the
Note and/or Security Deed, ”15 including the identity of the entity that has the servicing
rights, the right to receive payments, the right to access penalties, the right to issue
delinquency notice, the right to engage in debt collection practices, the right to take
adverse action against Plaintiff, the right to declare Plaintiff in default, and the right to
accelerate any payments due.16
Defendants move to dismiss Plaintiff’s Complaint for failure to state an actual
controversy under the Declaratory Judgment Act and thus failure to state a claim for
relief. Plaintiff did not respond to Defendant’s arguments.
DISCUSSION
The Declaratory Judgment Act, 28 U.S.C. § 2201(a) (the “Act”), provides in
pertinent part:
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.
Id. at ¶ 19.
Id. at ¶ 14(a).
16 Id. at ¶ ¶
14
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“[I]n actions brought under the Declaratory Judgment Act . . . ‘the threshold question is
whether a justiciable controversy exists.’”17 To show a justiciable controversy, the party
invoking federal jurisdiction must allege facts “at an irreducible minimum, that at the
time the complaint was filed, he has suffered some actual or threatened injury resulting
from the defendant’s conduct, that the injury fairly can be traced to the challenge action,
and that the injury is likely to be redressed by favorable court disposition.”18 The
controversy must be “of sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.”19
Here, Plaintiff fails to meet these basic pleading requirements to establish that a
justiciable controversy exists. Plaintiff fails to adequately allege he has suffered an
actual or threatened injury as a result of Defendants’ conduct. Plaintiff’s allegation that
because he is uncertain about which entity holds the Note and Security Deed, he is in
“immediate danger” of defaulting on the Note and Security Deed which will lead to
negative reporting and foreclosure, is conclusory and speculative. Plaintiff makes no
allegations regarding whether he is current on his loan payments or whether
foreclosure is warranted. Moreover, Plaintiff makes no allegations that his injuries are
the result of any conduct by Defendants. Plaintiff’s allegations are ambiguous and fail
to tie Defendants to any threatened injury as required to state a claim for declaratory
Cummings v. State Farm Mut. Auto. Ins. Co., 323 F. App’x 847, 847 (11th Cir. 2009) (quoting Atlanta Gas
Light Co. v. Aetna Cas. and Surety Co., 28 F.3d 409, 414 (11th Cir. 1995).
18 Id. (internal quotation marks and citation omitted).
19 Id. (internal quotation marks and citation omitted).
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relief. “Conclusory allegations, unwarranted deductions of facts or legal conclusions
masquerading as facts will not prevent dismissal.”20
CONCLUSION
In accordance with the foregoing, Defendants’ Motion to Dismiss [Doc. 5] is
hereby GRANTED, and Plaintiff’s Complaint is hereby DISMISSED.
SO ORDERED, this 25th day of April, 2013.
SSH
S/ C. Ashley Royal
C. ASHLEY ROYAL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
20
Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004) (citations omitted).
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