Campbell v. Bank of America Corporation
Filing
23
ORDER and OPINION denying 12 Defendant's Motion for Summary Judgment, granting 15 Plaintiff's Motion for Leave to File an Amended Complaint and denying 18 Plaintiff's Motion for Partial Summary Judgment. Signed by Judge Julie E. Carnes on 3/12/12. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
BRENT CAMPBELL f/k/a/ BRENT
CAMPBELL TILLMAN,
Plaintiff,
CIVIL ACTION NO.
v.
1:10-cv-3657-JEC
BANK OF AMERICA, N.A.1,
Defendant.
ORDER AND OPINION
This case is presently before the Court on defendant’s Motion
for Summary Judgment [12], plaintiff’s Motion for Leave to File an
Amended Complaint [15], and plaintiff’s Motion for Partial Summary
Judgment [18].
The Court has reviewed the record and the arguments
of the parties and, for the reasons set out below, concludes that
defendant’s Motion for Summary Judgment [12] is DENIED, plaintiff’s
Motion for Leave to File an Amended Complaint [15] is GRANTED, and
plaintiff’s Motion for Partial Summary Judgment [18] is DENIED.
1
Plaintiff’s Complaint [1] names “Bank of America Corporation”
as the defendant. Plaintiff has filed an unopposed motion for leave
to file an amended complaint naming “Bank of America, N.A.” as the
proper defendant. Plaintiff’s Motion for Leave to File Plaintiff’s
Amended Complaint [15] is GRANTED.
AO 72A
(Rev.8/82)
BACKGROUND
This
Campbell’s
case
arose
from
residence,
the
foreclosure
otherwise
known
as
of
plaintiff
9074
Jenni
Brent
Circle,
Jonesboro, Georgia (the “Property”). On August 11, 1997, plaintiff’s
now ex-husband, Louis E. Tillman, obtained a warranty deed for the
Property from a builder.
(“DSMF”) [12] at ¶ 1.)2
(Def.’s Statement of Material Facts
On or about the same date, Mr. Tillman
transferred a security interest in the Property to NationsBanc
Mortgage Corporation for a loan.
(Id. at ¶ 3.)
Also, on or about
August 11th, Mr. Tillman issued a deed to plaintiff, granting her a
tenancy with right of survivorship to the Property. (Pl.’s Statement
of Material Facts (“PSMF”) [18] at ¶ 3.)
Plaintiff was neither a
party to the security deed nor a party to the initial warranty deed
from the builder.
(DSMF [12] at ¶¶ 2, 4.)
2
Plaintiff did not respond to defendant’s statement of material
facts in the manner required by the Local Rules and these facts are
deemed admitted. See LR 56.1(B)(2)(a)(2), NDGa. Although failing to
respond to defendant’s facts, plaintiff has submitted a statement of
material facts in support of her own partial motion for summary
judgment that covers much of the same territory. Plaintiff’s failure
to comply with the Local Rules puts the Court in the unnecessarily
complicated position of having to pit defendant’s admitted facts
against the plaintiff’s independent statement of material facts to
rule on defendant’s motion for summary judgment.
See Reese v.
Herbert, 527 F.3d 1253, 1267-9 (11th Cir. 2008)(where facts are
deemed admitted court must still review defendant’s citations to the
record to “determine if there is, indeed, no genuine issue of
material fact.”).
2
AO 72A
(Rev.8/82)
A few years later, plaintiff and Mr. Tillman obtained a divorce.
On June 26, 2001, the Clayton County Superior Court entered a final
divorce decree ordering that the Property be “listed with a licensed
real estate agent immediately, be sold as soon as possible, all
mortgages and costs of the sale to be paid off in full, and the net
proceeds remaining be divided equally between [Plaintiff and Louis
Tillman] at closing.”
complied
with
the
(Id. at ¶ 7.)
divorce
decree.
Plaintiff and Tillman never
(Id.)
Instead,
plaintiff
apparently remained in the home, but never assumed the loan on the
Property.
(Id. at ¶ 5; Campbell Am. Aff. [22] at ¶ 7.)
On or about
February 3, 2009, defendant3 foreclosed on the Property.
(Deed Under
Power, attached to Def.’s Mot. for Summ. J. (“DMSJ”) [12] at Ex. 4.)
Plaintiff claims that defendant wrongfully foreclosed on the
Property
because
it
failed
to
provide
plaintiff
with
required
statutory notice of foreclosure, failed to advertise the foreclosure,
and sold the property for less than the true or fair market value of
the Property.
punitive
anguish.
(Pl.’s Compl. [1] at ¶¶ 14-16.)
damages,
attorney’s
fees,
and
She also seeks
compensation
for
mental
Defendant moves for summary judgment on all counts.
3
The record is silent about the transfer of any interest from
the NationsBanc Mortgage Corporation to defendant.
The Court
assumes, as the parties apparently have done, that defendant obtained
the same rights held by NationsBanc Mortgage Corporation with respect
to the deed to secure debt.
3
AO 72A
(Rev.8/82)
Plaintiff moves for partial summary judgment on its claim that
defendant wrongfully foreclosed on the Property by failing to give
proper notice of the foreclosure sale.
DISCUSSION
I.
SUMMARY JUDGMENT
The court must grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.
FED. R. CIV. P. 56(a).
The
party seeking summary judgment bears the initial burden to show the
district court, by reference to materials in the record, that there
are no genuine issues of material fact that should be decided at
trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If this
initial burden is not satisfied, the motion must be denied and the
court
need
not
consider
any
showing
made
by
the
nonmovant.
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993).
If the movant satisfies this initial responsibility, the nonmoving
party then bears the burden to show the existence of a genuine issue
of material fact.
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608
(11th Cir. 1991).
Where the movant bears the burden of proof on an issue, the
movant “must show that, on all the essential elements of its case on
which it bears the burden of proof at trial, no reasonable jury could
find for the non-moving party.”
Fitzpatrick, 2 F.3d at 1115.
4
AO 72A
(Rev.8/82)
Where
the nonmovant bears the burden of proof, the moving party need only
show the absence of evidence to support the nonmovant’s case, or
affirmative evidence demonstrating that the nonmovant will be unable
to prove their case at trial.
Id. at 1115-1116.
The court must view
all evidence and draw all reasonable inferences in favor of the
nonmoving party.
Johnson v. Governor of Fla., 405 F.3d 1214, 1217
(11th Cir. 2005).
There
is
no
“genuine”
issue
for
trial
“unless
there
is
sufficient evidence favoring the nonmoving party for a jury to return
a verdict for that party.”
242, 249 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S.
The substantive law will determine which facts are
material, and “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude
the entry of summary judgment.”
II.
Id. at 248.
APPLICABLE LAW
Defendant moves for summary judgment on plaintiff’s claim for
wrongful foreclosure on the grounds that defendant owed plaintiff no
legal duty to provide notice of the foreclosure, and, even if it did,
defendant complied with its necessary obligations.
In Georgia, a
plaintiff asserting a claim of wrongful foreclosure must 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.
5
AO 72A
(Rev.8/82)
Gregorakos v. Wells Fargo Nat’l
Ass’n, 285 Ga. App. 744, 747 (2007)(citing Heritage Creek Dev. Corp.
v. Colonial Bank, 268 Ga. App. 369, 371 (2004)).
O.C.G.A. § 44-14-
162.2(a) imposes an obligation on a secured creditor exercising
foreclosure under power of sale to give written notice “to the
debtor...no later than 30 days before the date of the proposed
foreclosure.”
A bank’s failure to provide proper notice is a breach
of the duty to fairly exercise the power of sale and may support a
claim for wrongful foreclosure.
See Calhoun First Nat’l Bank v.
Dickens, 264 Ga. 285, 286 (1994)(“The bank’s failure to provide
proper notice constituted a breach of the duty to fairly exercise the
power of sale created by § 23-2-114.”)
Defendant argues that it owed plaintiff no duty to provide
notice because plaintiff had no cognizable legal interest in the
property, or, in other words, was not a “debtor” within the meaning
of
O.C.G.A.
§
44-14-162.2(a).
Where,
as
here,
“the
property
encumbered by the...security deed...has been transferred or conveyed
by the original debtor, the term ‘debtor’ shall mean the current
owner of the property encumbered by the debt, if the identity of such
owner has been made known to and acknowledged by the secured creditor
prior to the time the secured creditor is required to give notice” of
the foreclosure.
O.C.G.A. § 44-14-162.1.
An individual may only be
considered a debtor under the above section if the property is used
as a dwelling place by the debtor at the time the security deed is
6
AO 72A
(Rev.8/82)
entered into.
Ray v. Atkins, 205 Ga. App. 85, 88 (1992)(notice
requirement “applies only to the exercise of a power of sale of
property all or part of which is to be used as a dwelling place by
the debtor at the time the mortgage, security deed, or lien contract
is entered into.”).
Mr. Tillman’s quitclaim transfer of a joint tenancy with right
of survivorship rendered plaintiff a joint owner of the Property.
Their joint ownership was also reflected in tax records.
at ¶ 9.)
(PSMF [18]
In light of this evidence, defendant rightly admits that it
knew about plaintiff’s interest in the Property, prior to the
foreclosure.
(Pl.’s Reqs. to Admit [14] at ¶ 5, attached to Pl.’s
Resp. to DMSJ at Ex. A.)
It also appears that the Property was
plaintiff’s dwelling place at the time the security deed was issued,
as well as at the time of foreclosure.
(See Campbell Am. Aff. [22]
at ¶ 7 (claiming she was “evicted” when foreclosure occurred).)
As
such,
plaintiff
was
a
“current
owner
of
the
property
encumbered by the...[security deed],” and her “identity...ha[d] been
made known to and acknowledged by the secured creditor.”
44-14-162.1.
O.C.G.A. §
She is thus a “debtor” entitled to notice under the
foreclosure statute.
Compare Roylston v. Bank of Am., N.A., 290 Ga.
App. 556, 559-60 (2008)(holding that plaintiff was “debtor” where he
obtained ownership of property more than one month in advance of
foreclosure sale), and Wright v. Barnett Mortg. Co., 226 Ga. App. 94,
7
AO 72A
(Rev.8/82)
97 (1997)(“As transferee and current owner of the property encumbered
by the debt, whose identity was known to the creditor, plaintiff was
a ‘debtor’ within the meaning of O.C.G.A. § 44-14-162.1”), with
Farris v. First Fin. Bank, ___ Ga. App. ___, No. A11A1799, 2011 WL
6934389
(Dec.
28,
2011)(ex-husband
not
entitled
to
notice
of
foreclosure where he did not obtain quitclaim deed to property before
time defendants were required to provide notice of the foreclosure
sale).
Defendant’s Motion for Summary Judgment [12] on the ground
that it owed no duty to plaintiff to provide statutory notice of the
foreclosure is therefore DENIED.
In the alternative, defendant argues that it provided plaintiff
with the required notice.
Notice of foreclosure in Georgia is
governed by O.C.G.A. § 44-14-162.2.4
This statute provides, in
4
(a) Notice of the initiation of proceedings to exercise a
power of sale in a mortgage, security deed, or other lien contract
shall be given to the debtor by the secured creditor no later than 30
days before the date of the proposed foreclosure. Such notice shall
be in writing, shall include the name, address, and telephone number
of the individual or entity who shall have full authority to
negotiate, amend, and modify all terms of the mortgage with the
debtor, and shall be sent by registered or certified mail or
statutory overnight delivery, return receipt requested, to the
property address or to such other address as the debtor may designate
by written notice to the secured creditor. The notice required by
this Code section shall be deemed given on the official postmark day
or day on which it is received for delivery by a commercial delivery
firm. Nothing in this subsection shall be construed to require a
secured creditor to negotiate, amend, or modify the terms of a
mortgage instrument.
(b) The notice required by subsection (a) of this Code section
8
AO 72A
(Rev.8/82)
relevant part, that notice of a foreclosure must be provided in
writing and sent by “registered or certified mail or statutory
overnight delivery, return receipt requested.”
162.2.
O.C.G.A. § 44-14-
This notice must be provided to the debtor “no later than 30
days before the date of the proposed foreclosure” and is “deemed
given on the official postmark day or day on which it is received for
delivery by a commercial delivery firm.”
Id.
However, the actual
receipt, or want of receipt, is immaterial to the exercise of the
power of sale.
Parks v. Bank of N.Y., 279 Ga. 418, 419 (2005).
Defendant submits two letters purporting to show that the notice
sent to plaintiff was proper. The “First Letter,” dated December 11,
2008,
was
addressed
to
plaintiff’s
ex-husband,
plaintiff, for delivery at an address in Michigan.
to West Aff. [21].)
“in
care
of”
(Ex. 3, attached
A copy of the notice of sale to be sent to the
publisher for advertisement was attached.
(Id.)
There is no
evidence that this letter was mailed through any particular medium.
The “Second Letter,” dated December 30, 2008, is a notice of
foreclosure addressed to plaintiff and her ex-husband jointly at the
Property’s address.
(Id. at Ex. 4.)
Unlike the First Letter, this
letter shows that it was sent via certified mail, with return receipt
requested.
(Id.)
The Second Letter had to have been postmarked at
shall be given by mailing or delivering to the debtor a copy of the
notice of sale to be submitted to the publisher.
9
AO 72A
(Rev.8/82)
least before January 3, 2009, which is the date upon which the letter
was stamped as unclaimed. The legal advertisement of the foreclosure
sale is not attached, however, even though it is mentioned in the
body of the Second Letter.
The First Letter cannot demonstrate compliance with the notice
requirements because the record does not disclose whether this letter
was mailed through any of the permissible forms, as, for example,
certified mail with return receipt requested.
The Second Letter,
however, was sent via certified mail with return receipt requested
and does comply with the statute.
Further, the Second Letter
satisfies the timeliness requirement of the statute because it had to
have been postmarked before being returned as unclaimed on January 3,
2009.
January 3, 2009 is at least 30 days before the date of the
proposed foreclosure on February 3, 2009.
Timeliness aside, plaintiff argues that the notice was deficient
because defendant should have sent a separate, individual notice of
the foreclosure to plaintiff because it was aware of plaintiff’s
divorce.
(Pl.’s Reply Br. [22] at 3-4.)
O.C.G.A. § 44-14-162.2,
however, does not mandate that each potential owner receive an
individually-addressed and mailed notice.
Moreover, the statute
provides, quite plainly, that the notice “shall be sent by registered
or certified mail..., return receipt requested, to the property
address or to such other address as the debtor may designate by
10
AO 72A
(Rev.8/82)
written notice to the secured creditor.”
(emphasis added).
O.C.G.A. § 44-14-162.2
Plaintiff has produced no evidence that she
sought, in writing, to have notice sent to another address.
See
Farris, 2011 WL 6934389, at *3 (notice statute satisfied where exhusband provided no evidence that he made written request for notice
to be sent to address other than subject property).
The Second
Letter bore plaintiff’s name and was sent via certified mail, with
return receipt requested, to the Property’s address.
The Court
discerns no additional requirements in the notice statute.
Plaintiff also argues that she was prohibited by the United
States Postal Inspector from receiving any mail addressed to Louis
Tillman.
(Pl.’s Reply Br. [22] at 4.)
Plaintiff’s point is well
taken with respect to the First Letter, in which she was a “[care of]
addressee.”
Cir.
See United States v. Ashford, 530 F.2d 792, 797 (8th
1976)(explaining
that
“care
of”
designation
does
not
automatically entitle the “[care of] addressee” to open letter, given
a federal statute prohibiting obstruction of the mails).
However,
the Second Letter is addressed jointly, and the Court is not aware of
any rule, state or federal, that prohibits a party from opening mail
addressed directly to it, even where another party’s name is also
present. Moreover, whether plaintiff actually received the notice of
11
AO 72A
(Rev.8/82)
foreclosure is immaterial if the requirements of the statute have
been met.5
To the extent plaintiff is arguing that the above circumstances
render statutory notice constitutionally deficient, the Georgia
Supreme Court has held that compliance with O.C.G.A. § 44-14-162.2
satisfies
due
process.
See
Parks,
279
Ga.
at
420
(upholding
constitutionality of O.C.G.A. § 44-14-162.2's notice requirement
against
due
procedural
process
challenge).
requirements
of
Georgia
Defendant
complied
foreclosure
law
with
in
the
mailing
plaintiff a timely notice via the Second Letter.
Procedural compliance notwithstanding, plaintiff contends that
defendant failed to comply with the substantive requirements of the
foreclosure notice statute by failing to attach a copy of the
advertisement publishing the notice of sale.
at 5.)
(Pl.’s Reply Br. [22]
Under O.C.G.A. § 44-14-162.2(b), the notice required by
section 44-14-162.2 “shall be given by mailing or delivering to the
5
Plaintiff’s two preceding arguments are arguably tacit
admissions that plaintiff received the notice, but chose not to open
them. Indeed, the Court suspects that plaintiff did receive notice
of the foreclosure, as she claims to have sent a check to defendant
for three months of mortgage payments to prevent the property from
going into foreclosure. (Campbell Am. Aff. [22] at ¶ 4.) Actual
notice of the foreclosure sale, if proven, would defeat a claim for
wrongful foreclosure for want of notice. McKinney v. S. Boston Sav.
Bank, 156 Ga. App. 114, 115 (1980)(“The foreclosure sale was not void
for insufficient notice.
By receiving actual notice, appellant
received more notice than the law required.”)
12
AO 72A
(Rev.8/82)
debtor
a
copy
publisher.”
of
the
notice
of
sale
to
be
submitted
to
the
The First Letter, addressed to Louis Tillman “care of”
Brent Tillman, includes the required notice of sale advertisement.
(Ex. 3, attached to West Aff. [21].)
As noted above, the First
Letter does not, however, include evidence that it was sent by
certified mail to plaintiff, as required.
In contrast, the Second Letter was sent via certified mail to
plaintiff at the proper address, but does not include the required
advertisement even though the letter mentions said advertisement.
(Id. at Ex. 4.)
The failure to demonstrate that plaintiff received,
via
mail
certified
return
receipt
requested,
a
copy
of
the
advertisement for the notice of sale means that a genuine issues of
material fact remains as to whether the notice provided to plaintiff
complied with O.C.G.A. § 44-14-162.2.
Because a genuine issue of
fact remains, defendant’s Motion for Summary Judgment [12] is DENIED.6
Plaintiff has also claimed that defendant conducted a wrongful
foreclosure by failing to properly advertise the sale of the property
6
Plaintiff has moved for summary judgment on whether notice was
properly given. The same issue of fact regarding inclusion of the
advertisement also precludes the grant of plaintiff’s Motion for
Summary Judgment as well. Plaintiff’s Motion for Partial Summary
Judgment [18] is therefore also DENIED.
Further, plaintiff’s
argument that the foreclosure was wrongful because she was not
actually in default is not subject to summary disposition. It is
unclear on the present record whether plaintiff’s efforts to tender
past due payments were sufficient to avoid foreclosure. (See Ex. B,
attached to Campbell Am. Aff. [22] (tendering check for $1,984.38).)
13
AO 72A
(Rev.8/82)
and selling the property below the fair market value. Aside from its
initial contention that it owed plaintiff no duty because plaintiff
was not a party or assignee of the security deed, defendant submits
no authority to show why plaintiff, as a joint owner, cannot bring
suit for failure to advertise the property or sell it at fair market
value.
The Court notes, however, that the sale of the property at
below true or fair market value, standing alone, is insufficient to
succeed on a claim for wrongful foreclosure.
See Gordon v. S. Cent.
Farm Credit, ACA, 213 Ga. App. 816, 818 (1994)(“[i]nadequacy of [the]
price paid...will not of itself and standing alone be sufficient
reason for setting aside the sale....only when the price realized is
grossly inadequate and the sale is accompanied by either fraud,
mistake, misapprehension, surprise or other circumstances which might
authorize a finding that such circumstances contributed to bringing
about the inadequacy of price that such a sale may be set aside”);
Aikens v. Wagner, 231 Ga. App. 178, 180 (1998)(applying same standard
in tort action).
To the extent it seeks summary judgment on these
claims, defendant’s motion is DENIED as to these claims as well.
Defendant also moves for summary judgment on plaintiff’s request
for
punitive
damages,
attorneys’
fees,
and
damages
for
mental
anguish.
All of these potential damages are available in a suit for
wrongful
foreclosure.
See
Clark
v.
West,
196
Ga.
App.
456
(1990)(attorneys’ fees and compensation for mental anguish available
14
AO 72A
(Rev.8/82)
in wrongful foreclosure action as it sounds in tort); Curl v. First
Fed. Sav. & Loan Ass’n, 243 Ga. 842 (1979)(affirming award for
punitive damages in wrongful foreclosure suit); DeGolyer v. Green
Tree Servicing, LLC, 291 Ga. App. 444, 449 (2008)(“In a wrongful
foreclosure action, an injured party may seek damages for mental
anguish in addition to cancellation of the foreclosure.”).
The
burden to obtain damages for emotional distress is high, however.
DeGolyer, 291 Ga. App. at 449.
Plaintiff’s proffered evidence that she notified defendant about
her divorce and interest in the Property, that she paid the debt
properly, and that defendant repeatedly ignored her interest in the
property could support an award of punitive damages, emotional
distress, or attorneys’ fees.
Blanton v. Duru, 247 Ga. App. 175, 175
(2000)(damages for mental anguish upheld where ex-husband executed
security deed in favor of business partner and the creditors sought
foreclosure on home occupied by plaintiff); DeGolyer, 291 Ga. App. at
449-50 (mental anguish damages permitted where creditor proceeded
with foreclosure, but foreclosed on wrong tract and defendant lacked
any legal description of the property attached to its security deed.)
On the present record, defendant’s Motion for Summary Judgment [12]
on these claims is DENIED.
15
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CONCLUSION
For
the
foregoing
reasons,
defendant’s
Motion
for
Summary
Judgment [12] is DENIED, plaintiff’s Motion for Leave to File an
Amended Complaint [15] is GRANTED, and plaintiff’s Motion for Partial
Summary Judgment [18] is DENIED.
SO ORDERED, this 12th day of MARCH, 2012.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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