MAPLES v. BANK OF AMERICA NA et al

Filing 18

ORDER granting 13 Motion to Dismiss for Failure to State a Claim and dismissing case without prejudice. Ordered by U.S. District Judge HUGH LAWSON on 11/10/2014. (nbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION

DANIEL T. MAPLES,
Plaintiff,
v.

Civil Action No. 7:13-CV-171 (HL)

BANK OF AMERICA, N.A., and
DEUTSCHE
BANK
NATIONAL
TRUST COMPANY AS TRUSTEE
FOR THE CERTIFICATEHOLDERS
OF THE SOUNDVIEW HOME LOAN
TRUST
2005-5
ASSET-BACKED
CERTICATES, SERIES 2005-4,
Defendants.

ORDER
Before the Court is Defendants’ Motion to Dismiss (Doc. 13) Plaintiff’s
Amended Complaint (Doc. 12). For the reasons stated below, the motion is
granted. The Court had reserved ruling on a portion of Defendants’ earlier Motion
to Dismiss (Doc. 4) the Complaint as originally pled, allowing the Plaintiff the
opportunity to amend his Complaint. This first motion to dismiss is now moot.
I.

Motion to Dismiss Standard
To avoid dismissal under Federal Rule of Civil Procedure 12(b)(6), “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678,
129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is plausible if its
factual allegations allow “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. The plausibility standard “calls
for enough fact to raise a reasonable expectation that discovery will reveal
evidence” of the defendant’s liability. Twombly, 550 U.S. at 556.
In ruling on a motion to dismiss, the court must accept “all well-pleaded
facts … as true, and the reasonable inferences therefrom are construed in the
light most favorable to the plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271,
1273 n. 1 (11th Cir. 1999). However, this tenet does not apply to legal
conclusions in the complaint. Iqbal, 556 U.S. at 679. “[C]onclusory allegations,
unwarranted deductions of fact, or legal conclusions masquerading as facts will
not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188
(11th Cir. 2002). A court must dismiss the complaint if, “on the basis of a
dispositive issue of law, no construction of the factual allegations will support the
cause of action.” Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992
F.2d 1171, 1174 (11th Cir. 1993) (citing Executive 100, Inc. v. Martin County, 992
F.2d 1536, 1539 (11th Cir. 1991) and Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct.
773, 90 L.Ed.2d 939 (1946)).

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II.

Factual Background
On June 29, 2005, Plaintiff Daniel Maples (“Plaintiff”) became the owner of

a house located at 200 Ashley Street, Berlin, Georgia (“the Property”), which is
where he currently resides. Attendant to purchasing the Property, Plaintiff
executed a promissory note in favor of America’s Wholesale Lender with a
principal amount of $82,000.00 (“the Note”). He also executed a security deed to
Mortgage Electronic Registration Systems, Inc. (“MERS”), as the nominee for
America’s Wholesale Lender, and pledged the Property as collateral. America’s
Wholesale Lender subsequently transferred and assigned the Note to Bank of
America. (Amended Complaint, ¶¶1, 6-10).
“Plaintiff made monthly mortgage payments to” Bank of America until it
began returning his payments. (Id. at ¶10). The returned payments caused
Plaintiff to go into default on the Note. When Plaintiff went into default, he was
eligible to receive assistance under the Home Affordable Modification Program
(“HAMP”), which afforded an opportunity for Bank of America to modify the terms
of the Note to prevent foreclosure. Plaintiff contacted Bank of America on
multiple occasions to see if it would accept his application to modify the terms of
his mortgage. It responded by sending him a HAMP application form. Plaintiff
completed the form and returned it to Bank of America along with all of the
supporting documents that were required for the application. He alleges that his

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submission of a completed HAMP application created a binding contract with
Bank of America in which it agreed to fully process his application in accordance
with HAMP’s terms. While Bank of America was processing Plaintiff’s application,
Defendant Deutsche National Bank Trust Company as Trustee for the
Certificateholders of the Soundview Home Loan Trust 2005-4 Asset-backed
Certificates, Series 2005-4 (“Deutsche”) foreclosed on the Property on July 2,
2013.1 As a result of the foreclosure and subsequent auction, Deutsche became
the legal owner of the Property. (Id. at ¶¶10-18, 22).
Plaintiff sued Bank of America and Deutsche (collectively “Defendants”) in
Georgia state court on November 14, 2013, and they removed the action to this
Court on December 30, 2013. (Notice of Removal, Doc. 1). Plaintiff alleges that
Defendants are liable for wrongful foreclosure and breach of a contract to modify
the Note under HAMP, and he asks for a declaratory judgment, injunctive relief,
specific performance of the alleged contract with Bank of America, and attorney
fees. (Amended Complaint, ¶¶19-24).
III.

Legal Analysis
A.

Claims against Deutsche

In addition to joining in Bank of America’s arguments for dismissing the
Amended Complaint, Deutsche also raises the defenses of insufficient process
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Evidently MERS had assigned the security deed to Deutsche. (Assignment of Security
Deed, Ex. A to Defendants’ Motion to Dismiss, Doc. 4-2).
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and insufficient service of process under Federal Rule of Civil Procedure 12(b)(4)
and (b)(5). Plaintiff has not provided evidence of having served Deutsche or
otherwise addressed its defenses. Therefore, the motion to dismiss the Amended
Complaint is granted with regard to the claims against Deutsche. See Federal
Rule of Civil Procedure 4(m); Horenkamp v. Van Winkle and Co., 402 F.3d 1129,
1131-32 (11th Cir. 2005) (recognizing district courts’ discretion to dismiss an
action if a defendant is not served within 120 days); Lawson v. ADT Sec. Servs.,
Inc., 899 F. Supp. 2d 1335, 1337-38 (M.D. Ga. 2012) (granting the defendant’s
motion for judgment on the pleadings under Rule 12(c) for some claims because
the plaintiff’s response did not defend them).
B.

Wrongful Foreclosure Claim

The wrongful foreclosure claim against Bank of America is also dismissed.
“Georgia law requires a plaintiff asserting a claim of wrongful foreclosure to
establish a legal duty owed to it by the foreclosing party, a breach of that duty, a
causal connection between the breach of that duty and the injury it sustained,
and damages.” Heritage Creek Dev. Corp. v. Colonial Bank, 268 Ga. App. 369,
371 (2004). Because Plaintiff alleges that Deutsche, not Bank of America,
foreclosed on his house, the Court fails to see how Bank of America can be liable
for wrongful foreclosure.

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C.

Breach of Contract Claim

The Amended Complaint also falls short in alleging a breach of contract
claim. For this claim, Plaintiff must first allege the existence of a contract,
requiring subject matter, consideration, and the parties’ mutual assent to all
essential terms. See Lamb v. Decatur Federal Sav. & Loan Ass’n, 201 Ga. App.
583, 585 (1991). He must then allege his own performance under the contract,
Bank of America’s breach of the contract, and his damages from that breach.
See Jones v. Central Builders Supply Co., 217 Ga. App. 190, 195-96 (1961).
Plaintiff has not adequately alleged the elements of a breach of contract
claim. The allegations relating to the existence of a contract with Bank of America
and its breach are highly conclusory. For instance, Plaintiff claims that he
“provided the necessary consideration for creating a binding contract … by
sending [Bank of America] all the forms and other supporting documentation the
[bank] requested from…” him. (Amended Complaint, ¶15). “[C]onsideration is
essential to a contract which the law will enforce,” but to “constitute
consideration, a performance or a return promise must be bargained for by the
parties to a contract.” O.C.G.A. §§ 13-3-40, 13-3-42; see also George R. Hall,
Inc. v. Superior Trucking Co., 532 F. Supp. 985, 992 (N.D. Ga. 1982). The
Amended Complaint demonstrates that it was Plaintiff, not Bank of America, who
was clamoring to submit a HAMP application, so in no sense could the bank be

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said to have “bargained for” a completed application from Plaintiff. There being
no consideration from Plaintiff, the contract fails, and the breach of contract claim
must be dismissed.
D.

Plaintiff’s Remaining Requests

Plaintiff’s prayer for declaratory relief is dismissed. To obtain a declaratory
judgment, “a party must establish that it is necessary to relieve himself of the risk
of taking some future action that, without direction, would jeopardize his
interests.” Porter v. Houghton, 273 Ga. 407, 408 (2001) (citing Sapp v. ABC
Credit & Inv. Co., 243 Ga. 151, 159 (1979)). A declaratory judgment action is
improper “where the rights between the parties have already accrued, because
there is no uncertainty as to the rights of the parties [or] risk as to taking future
action.” Thomas v. Atlanta Casualty Co., 253 Ga. App. 199, 201 (2001). Plaintiff
has not alleged what future action he wishes to take against Defendants, and his
rights against them, if any, have already accrued.
The request for injunctive relief is also denied. Plaintiff asks the Court to
enjoin Defendants from transferring title to the Property. However, a preliminary
injunction is “an extraordinary and drastic remedy not be granted unless the
movant” shows, among other things, a substantial likelihood of prevailing on the
merits of his case. Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir.

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1985). Since Plaintiff’s substantive claims have been dismissed, he has not
shown the need for a preliminary injunction.
Plaintiff’s remaining requests must also be dismissed. He asks that the
Court order specific performance of his purported contract with Bank of America,
but, given that he has not adequately alleged the existence of such a contract,
the Court declines to do so. Furthermore, the request for attorney fees must be
denied because Plaintiff has not alleged conduct by Defendants that rises to the
level of bad faith and his substantive claims have been dismissed.
IV.

Conclusion
In light of the foregoing, Defendants’ Motion to Dismiss the Amended

Complaint (Doc. 13) is granted, and this case is dismissed without prejudice.

SO ORDERED, this the 10th day of November, 2014.

s/ Hugh Lawson_______________
HUGH LAWSON, SENIOR JUDGE
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