BRADLEY et al v. JPMORGAN CHASE BANK NATIONAL ASSOCIATION et al

Filing 22

ORDER GRANTING 4 Motion to Dismiss for Failure to State a Claim and GRANTING 7 Motion to Dismiss for Failure to State a Claim. The case is dismissed without prejudice. Ordered by Judge Marc Thomas Treadwell on 9/18/2013. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
PAUL E. BRADLEY, et al.,
Plaintiffs,
v.
JP MORGAN CHASE BANK NATIONAL
ASSOCIATION, et al.,
Defendants.

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CIVIL ACTION NO. 5:13-CV-180 (MTT)

ORDER
This matter is before the Court on Defendants JP Morgan Chase Bank (“JP
Morgan”), as successor by merger to Chase Home Finance, and Mortgage Electronic
Registration Systems’ (“MERS”) motion to dismiss (Doc. 4), and on Defendant McCalla
Raymer’s motion to dismiss (Doc. 7).1 For the following reasons, the Defendants’
motions are GRANTED and the Plaintiffs’ complaint is DISMISSED.2

1

2

  McCalla Raymer claims to have been improperly styled as “Promiss Solutions” in the complaint.

 Though neither of the Defendants’ motions addresses the issue of subject matter jurisdiction, because
the Plaintiffs’ complaint is so poorly drafted, the Court has evaluated its jurisdiction over the matter and
concluded it has jurisdiction pursuant to 28 U.S.C. § 1331. The Plaintiffs have attempted to assert
violations of their rights under at least one federal statute—the Fair Debt Collection Practices Act. “[A]
federal court may dismiss a federal question claim for lack of subject matter jurisdiction only if: (1) the
alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely
for the purpose of obtaining jurisdiction; or (2) such a claim is wholly insubstantial and frivolous.” Blue
Cross & Blue Shield of Ala. v. Sanders, 138 F.3d 1347, 1352 (11th Cir. 1998) (citation and internal
quotation marks omitted). Furthermore, under the latter exception, “a complaint is wholly insubstantial
and frivolous only when its unsoundness so clearly results from the previous decisions of (the Supreme
Court) as to foreclose the subject and leave no room for the inference that the questions sought to be
raised can be the subject of controversy.” Fountain v. Metro. Atlanta Rapid Transit Auth., 678 F.2d 1038,
1042 (11th Cir. 1982) (citation and internal quotation marks omitted). Where there are pro se pleadings
with allegations so sparse as to raise the question of whether a federal cause of action even exists, the
preferred approach is to find that the claim is not so frivolous as to warrant dismissal for lack of federal

To avoid dismissal pursuant to Fed. R. Civ. P. 12(b)(6), a complaint must contain
sufficient factual matter 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)). “At the motion to dismiss stage, all well-pleaded facts are accepted as
true, and the reasonable inferences therefrom are construed in the light most favorable
to the plaintiff.” Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006)
(quotation marks and citation omitted). However, “where the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S.
at 679 (quoting Fed. R. Civ. P. 8(a)(2)). “[C]onclusory allegations, unwarranted
deductions of facts or legal conclusions masquerading as facts will not prevent
dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).
The complaint must “give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Twombly, 550 U.S. at 555.
When a plaintiff is proceeding pro se, his pleadings may be held to a less
stringent standard than pleadings drafted by attorneys and will be liberally construed.
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). However, where
there are dispositive issues of law, a court may dismiss a claim regardless of the

question jurisdiction but to dismiss for failure to state a claim under Rule 12(b)(6). See Barnes v. City of
Gray, 2010 WL 797265 at *2 (M.D. Ga.); see also McGinnis v. Ingram Equip. Co., 918 F.2d 1491, 1495
(11th Cir. 1990) (“Where the ‘defendant’s challenge to the court’s jurisdiction is also a challenge to the
existence of a federal cause of action, the proper course of action for the district court . . . is to find that
jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's case.’”)
Therefore, the Court concludes it has subject matter jurisdiction and proceeds to evaluate the complaint
under Rule 12(b)(6).

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alleged facts. Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171,
1174 (11th Cir. 1993) (citation omitted).
Though the complaint is largely incomprehensible, it appears to relate to claims
arising out of a residential mortgage transaction.3 The complaint refers to various
federal and state statutes but fails to state exactly how the Plaintiffs are contending their
rights have been violated beyond conclusory allegations, which are oftentimes
nonsensical. For example, the complaint contains the following allegations:


“Respondents . . . made numerous misrepresentations and false
statements.” (Doc. 1 at 2).



“Petitioner’s prayer for relief is that the Respondents violated {their} rights
under the Fair Debt Collection Practices Act thereby entitling {them} to all
appropriate relief provided for by statute . . . .”4 (Doc. 1 at 2).



“Petitioners allege the foreclosure of their residence is wrong because
Respondents continue to pursue foreclosure proceedings in spite of not
properly responding to her requests to validate the debt and provide the
information about the holder of the NOTE.” (Doc. 1 ¶ 14).

3

 At no point in the complaint do the Plaintiffs actually state the location of the property in question.
However, the Plaintiffs’ response to the Defendants’ motions to dismiss clarifies the Plaintiffs’ property is
located at 1612 Stark Road, Jackson, Georgia. (Doc. 13 ¶ 9).
4

 It is apparent this is a combination of form complaints with some inserted paragraphs, and as shown
above, the Plaintiffs sometimes failed to complete the form. About halfway through the complaint (Doc. 1
at 12), the Plaintiffs switch to a form this Court has seen before. See Curtis v. BAC Home Loans
Servicing, LP, No. 5:10-cv-226 (Doc. 1).

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

“Respondent’s refusal to provide the proper verification has been denied,
replace with threats and/or harassments, embarrassment, and created an
uncertain harm and violated her right to a lawful discovery.” (Doc. 1 ¶ 38).



“Respondents . . . failed to issue (loan) constitutional dollars in the
transaction, issuing credit which was unconstitutional at best.” (Doc. 1 ¶
45).



“Respondents . . . failed to disclose a material fact concerning the
demanded deposit of the not [sic] pledge which caused the Petitioners to
be the true lender in the transaction.” (Doc. 1 ¶ 46).



“The Respondents failed to such information under disclosure and is
secret continues to collect on contracts which must be altered from its
original conditions.” (Doc. 1 ¶ 47).

Even taking the Plaintiffs’ pro se status into account, the complaint lacks a proper
legal foundation. While it is true that pro se plaintiffs are held to less stringent
standards, the Court should not “serve as de facto counsel . . . or . . . rewrite an
otherwise deficient pleading in order to sustain an action.” Appleton v. Intergraph Corp.,
627 F. Supp. 2d 1342, 1348 (M.D. Ga. 2008) (quoting GJR Invs., Inc. v. Cnty. of
Escambia, Fla., 132 F.3d 1359, 1370 (11th Cir. 1998)). There are entire paragraphs
quoting from cases and statutes without any factual assertions or any indication how the
law cited relates to the Plaintiffs’ allegations. (Doc. 1 ¶¶ 27-29, 31-33, 40). Most of the
complaint consists of blanket allegations listing all the Defendants without specifying
how any of the individual Defendants violated the Plaintiffs’ rights.

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As best the Court can tell, the Plaintiffs attempt to allege the Defendants
wrongfully foreclosed on their property,5 violated their rights under the Fair Debt
Collection Practices Act, made “numerous misrepresentations and false statements” to
the Plaintiffs, failed to produce the original note, “failed to issue (loan) in constitutional
dollars,” and violated their rights under the Truth in Lending Act. However, the Plaintiffs
simply do not allege any facts to support their allegations, nor do they articulate the
legal theories or avenues of recovery they are pursuing in any intelligible manner.
The only real facts the Plaintiffs allege are they were never in default and the
Defendants refused to properly verify the Plaintiffs’ debt or the Defendants’ ownership of
the note and mortgage.6 Even assuming these facts are true, as the Court must on a
motion to dismiss, the Plaintiffs have failed to show how this entitles them to relief. As
discussed above, it is unclear what the Plaintiffs are contending happened to their
property or exactly how the Defendants are responsible.
The Plaintiffs’ response to the Defendants’ motions further states:
MERS never executed an “Assignment of Deed to secure debt” which
purported to assign the right, title and interest to the Plaintiffs’ Security
Deed. There was no language evidencing the assignment, grant, sale,
transfer or conveyance in any way, of the Promissory Note which that
Security Deed was merely an incident to.

5

 At the beginning of the complaint, the Plaintiffs allege the Defendants attempted to foreclose on their
property, later allege that the Defendants conducted the foreclosure proceedings below true market value
and engaged in unlawful foreclosure and eviction proceedings, and then request that “Respondent(s) . . .
be permanently enjoined from conducting a Sale Under Power of Petitioners [sic] real property . . .” (Doc.
1 ¶¶ 13, 48-9, 57(e)). Thus, it is not even clear whether the Plaintiffs are claiming a foreclosure sale has
taken place.
6

 All other “facts” contained in the complaint are really unsubstantiated legal conclusions.

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(Doc. 13 ¶ 5). However, an exhibit attached to the complaint shows this is not true.
The Plaintiffs’ Exhibit H is a copy of the assignment of the security deed from MERS to
Chase Home Financing with a stamp showing it was filed in Butts County on October
27, 2010 in Book 667, page 473. (Doc. 1-8). Additionally, the Plaintiffs’ claim that the
promissory note was not transferred with the security deed is inapposite. The Georgia
Supreme Court has recently held that “[u]nder current Georgia law, the holder of a deed
to secure debt is authorized to exercise the power of sale in accordance with the terms
of the deed even if it does not also hold the note or otherwise have any beneficial
interest in the debt obligation underlying the deed.” You v. JP Morgan Chase Bank,
N.A., 293 Ga. 67, 74, 743 S.E.2d 428 (2013).
Though the Plaintiffs’ 37 page response to the Defendants’ motions states
additional facts that help clarify some of the basic background information lacking in the
complaint, it fails to cure any of the above-mentioned defects and instead contains more
conclusory allegations with no factual basis. (Doc. 13). The Plaintiffs also attempt to
add additional claims, including forgery, RICO violations, and due process violations.
Even if the Court were to construe their response as a motion to amend their complaint,
these new allegations would also fail to state a claim because the Plaintiffs do not plead
sufficient facts to show they are entitled to relief under any of these new theories.
The Plaintiffs have failed to put the Defendants on fair notice of what their claims
are or on what grounds they rest. As such, the Court concludes that the Plaintiffs have
not met the pleading requirements of Rule 8 and have failed to state a claim upon which
relief may granted. Consequently, the Defendants’ motions to dismiss are GRANTED
and the case is DISMISSED without prejudice.

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SO ORDERED, this 18th day of September, 2013.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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