Kelley et al v. JP Morgan Chase Bank et al

Filing 163

ORDER granting Plaintiff Jordans Motion to Allow Motion to Extend the Page Limit 132 and Motion to Extend the Page Limit 133 ; granting nunc pro tunc to October 31, 2013 Plaintiff Kelleys Emergency Motion Requesting Permission for Additional Time to File Motion for Reconsideration 143 ; granting nunc pro tunc to November 21, 2014 Plaintiff Kelley's Amended and Supplemental Motion for Permission to Obtain Additional Time to File Motion for Reconsideration 155 ; denying as moot Plaintiff Kelleys Motion to File Amended Notice of Appeal 152 ; granting Plaintiff Kelleys Motion for Leave to File Excess Pages 161 ; denying Plaintiff Kelley's Motion for Reconsideration 157 ; and granting Defendant JP Morgan Chase Banks Motion for Summary Judgment 121 . The Clerk is directed to close this case. Signed by Judge Richard W. Story on 4/28/14. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
FRANCISE M. KELLEY and
WILLIE JORDAN,
Plaintiffs,
v.
JP MORGAN CHASE BANK,
Defendant.

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CIVIL ACTION NO.
1:11-CV-2497-RWS

ORDER
This case comes before the Court on Defendant JP Morgan Chase Bank’s
Motion for Summary Judgment [121]; Plaintiff Jordan’s Motion to Allow
Motion to Extend the Page Limit [132] and Motion to Extend the Page Limit
[133]; and Plaintiff Kelley’s Emergency Motion Requesting Permission for
Additional Time to File Motion for Reconsideration [143], Motion to File
Amended Notice of Appeal [152], Amended and Supplemental Motion for
Permission to Obtain Additional Time to File Motion for Reconsideration
[155], Motion for Reconsideration [157], and Motion for Leave to File Excess
Pages [161]. After reviewing the record, the Court enters the following Order.

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Background
On or about September 30, 2005, Plaintiff Willie Jordan entered into two
mortgage loan transactions with Long Beach Mortgage Company (“Long
Beach”). Concurrently with the loans, Plaintiff Jordan executed two security
deeds in favor of Long Beach secured by real property located at 6503 Barkston
Trace, Douglasville, Georgia 30135. (Chase’s Statement of Material Facts
(“SMF”), Dkt. [121-2] ¶ 4.) In connection with the loans, Plaintiff Jordan
executed two promissory notes in favor of Long Beach in the total principal
amount of $150,500.00. (Id. ¶ 2.) On June 7, 2006, Long Beach merged with
and into Washington Mutual Bank. (Id. ¶ 6.) On September 25, 2008,
Washington Mutual Bank was declared insolvent, and the Federal Deposit
Insurance Corporation was appointed Receiver. (Id. ¶ 7.) Pursuant to a
Purchase and Assumption Agreement dated September 25, 2008, the FDICReceiver transferred to JP Morgan Chase Bank (“Chase”) all right, title, and
interest in and to all of the assets of Washington Mutual Bank. (Id.) On
February 23, 2009, Chase assigned all interest in the property to Deutsche Bank
National Trust Company as Trustee for Long Beach Mortgage Loan Trust

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2006-WL2. (Id. ¶ 9.) However, Chase remains the servicer of the loan on
behalf of Deutsche Bank. (Id. ¶ 10.)
After obtaining a loan modification in early 2008, Plaintiff Jordan was
again offered a loan modification in April 2010. (Id. ¶¶ 11-12.) To accept the
offer, Plaintiff was required to execute a copy of it and return it to Chase by
April 17, 2010, and then tender the new monthly payment amount of $695.57
by May 1, 2010. (Id. ¶ 14.) When Plaintiff failed to meet either of these
preconditions, Chase sent a letter to him on May 4, 2010, inquiring about the
status of the offer and informing him that failure to return the signed offer by
May 19, 2010, would result in withdrawal of the offer. (Id. ¶¶ 15-16.)
Plaintiff Kelley, responding as Jordan’s attorney in fact, sent Chase a
letter on May 18, 2010, but did not return an executed copy of the 2010
modification agreement by May 19. (Id. ¶¶ 17-18.) The May 18 letter instead
requested additional time to review the modification offer and asked “for the
new modification to reflect the recent payments as well.” (May 18 Letter, Dkt.
[121-4] at 55-56.) Plaintiffs have submitted a loan modification agreement that
they purport to have signed on April 19, 2010; however, Chase never executed
that copy of the modification. (See Dkt. [130-3] at 6; Chase’s SMF, Dkt. [1213

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2] ¶ 19.) Finally, although Plaintiff Jordan is in default, Chase has not
conducted a foreclosure sale. (Chase’s SMF, Dkt. [121-2] ¶ 20-21.)
On July 29, 2011, Plaintiffs filed their Complaint [1] in this Court.
Plaintiffs filed an Amended Complaint on August 1, 2011. The Court granted
in part and denied in part a Motion to Dismiss filed by Chase. (Dkt. [21].) The
Court dismissed all of Plaintiffs’ claims except their claims for wrongful
foreclosure and breach of contract. (Id.) On October 4, 2013, the Court
dismissed Plaintiff Kelley for lack of standing because she was not a party to
the note or security deed, nor was she a third-party beneficiary. Finally, both of
Plaintiff Jordan’s claims are premised upon the contention that Chase breached
a duty to him when it declined to modify the subject promissory notes and
deeds.
Discussion
I.

Preliminary Matters
As a preliminary matter, Plaintiff Jordan’s Motion to Allow Motion to

Extend the Page Limit [132] and Motion to Extend the Page Limit [133] are
GRANTED.

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Next, Plaintiff Kelley’s Emergency Motion Requesting Permission for
Additional Time to File Motion for Reconsideration [143] is GRANTED, nunc
pro tunc to October 31, 2013, and her Amended and Supplemental Motion for
Permission to Obtain Additional Time to File Motion for Reconsideration [155]
is GRANTED, nunc pro tunc to November 21, 2013.
Plaintiff Kelley also filed a Motion to File Amended Notice of Appeal
[152]. On January 13, 2014, the Eleventh Circuit Court of Appeals dismissed
Plaintiff Kelley’s appeal because the orders she wished to appeal were not yet
final. Therefore, Plaintiff Kelley’s Motion to File Amended Notice of Appeal
[152] is DENIED as moot.
Finally, Plaintiff Kelley’s Motion for Leave to File Excess Pages [161] is
GRANTED.
II.

Plaintiff Kelley’s Motion for Reconsideration [157]
Under the Local Rules of this Court, “[m]otions for reconsideration shall

not be filed as a matter of routine practice[,]” but rather, only when “absolutely
necessary.” LR 7.2(E), NDGa. Such absolute necessity arises where there is
“(1) newly discovered evidence; (2) an intervening development or change in
controlling law; or (3) a need to correct a clear error of law or fact.” Bryan v.
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Murphy, 246 F. Supp. 2d 1256, 1258-59 (N.D. Ga. 2003). However, a motion
for reconsideration may not be used “to present the court with arguments
already heard and dismissed or to repackage familiar arguments to test whether
the court will change its mind.” Id. at 1259. Furthermore, “[a] motion for
reconsideration is not an opportunity for the moving party . . . to instruct the
court on how the court ‘could have done it better’ the first time.” Pres.
Endangered Areas of Cobb’s History, Inc. v. U.S. Army Corps of Eng’rs, 916
F. Supp. 1557, 1560 (N.D. Ga. 1995), aff’d, 87 F.3d 1242 (11th Cir. 1996).
Plaintiff Kelley advances many of the same arguments she presented
when Chase moved for summary judgment against her. None of these
arguments establishes that there is “(1) newly discovered evidence; (2) an
intervening development or change in controlling law; or (3) a need to correct a
clear error of law or fact.” Bryan, 246 F. Supp. 2d at 1258-59. Accordingly,
reconsideration is not absolutely necessary, and thus Plaintiff Kelley’s Motion
for Reconsideration [157] is due to be DENIED.
III.

Chase’s Motion for Summary Judgment [121]
A.

Legal Standard

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Federal Rule of Civil Procedure 56 requires that summary judgment be
granted “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 moving party bears ‘the initial responsibility of informing the . . .
court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue
of material fact.’” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259
(11th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(internal quotations omitted)). Where the moving party makes such a showing,
the burden shifts to the non-movant, who must go beyond the pleadings and
present affirmative evidence to show that a genuine issue of material fact does
exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
The applicable substantive law identifies which facts are material. Id. at
248. A fact is not material if a dispute over that fact will not affect the outcome
of the suit under the governing law. Id. An issue is genuine when the evidence
is such that a reasonable jury could return a verdict for the non-moving party.
Id. at 249-50.
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Finally, in resolving a motion for summary judgment, the court must
view all evidence and draw all reasonable inferences in the light most favorable
to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296
(11th Cir. 2002). But, the court is bound only to draw those inferences which
are reasonable. “Where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no genuine issue for trial.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249-50 (internal citations
omitted); see also Matsushita, 475 U.S. at 586 (once the moving party has met
its burden under Rule 56(a), the nonmoving party “must do more than simply
show there is some metaphysical doubt as to the material facts”).
B.

Analysis
1.

Breach of Contract

The elements of breach of contract are a valid contract, the breach, and
the resultant damages to the party who has a right to complain that the contract
was broken. Budget Rent-A-Car of Atlanta v. Webb, 469 S.E.2d 712, 713 (Ga.
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Ct. App. 1996). Chase argues that it is entitled to summary judgment because
(1) there was no agreement to modify the loan in 2010, and (2) Plaintiff’s claim
is barred by the statute of frauds.
First, Chase contends that Plaintiff Jordan never satisfied the conditions
precedent to accept the modification offer because he did not return an executed
copy of the modification to Chase by April 17, 2010, nor did he tender the new
monthly payment amount by May 1, 2010. In fact, Plaintiff again failed to
return an executed copy after Chase’s May 4 letter informing him that failure to
do so by May 19 would result in withdrawal of the offer. And while Plaintiff
did indicate an interest in obtaining a modification, the May 18 letter failed to
communicate unequivocal acceptance of Chase’s offer. See Lamb v. Decatur
Fed. Sav. & Loan Ass’n, 411 S.E.2d 527, 529 (Ga. Ct. App. 1991) (stating that
“acceptance of an offer must be unconditional, unequivocal, and without
variance of any sort”). Instead, the letter asked for additional time to review the
offer and posed several questions to Chase, including a request that the new
modification reflect the recent payments on the loan. Consequently, there was
no valid agreement to modify the loan in 2010.

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Second, Chase points out that under the Statute of Frauds, “[a]ny contract
for the sale of lands or any interest in, or concerning lands” must be in writing
and signed by the party to be bound. O.C.G.A. § 13-5-30(4). The Statute of
Frauds also applies to “[a]ny commitment to lend money.” Id. § 13-5-30(7). In
addition, “[w]hen a contract is required by the Statute of Frauds to be in
writing, any modification of the contract must also be in writing.” Walden v.
Smith, 546 S.E.2d 808, 810 (Ga. Ct. App. 2001). Because Chase never signed
the modification agreement, Plaintiff’s breach of contract claim is also barred
by the Statute of Frauds. See Ogburn v. Chase Home Finance LLC, No. 1:11CV-1856-TWT, 2011 WL 5599150, at *2 (N.D. Ga. Nov. 16, 2011) (“To be
valid, however, [an agreement to refinance a loan] must be in writing and
signed by Chase.”).
Nevertheless, Plaintiff argues that there remain disputes of material fact
that preclude summary judgment. However, none of these issues are material to
the breach of contract claim or call into question the undisputed facts showing
that Plaintiff never accepted the 2010 modification offer. Therefore, Plaintiff’s
breach of contract claim fails.

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2.

Wrongful Foreclosure

To state a claim for wrongful foreclosure under Georgia law, Plaintiff
Jordan must demonstrate: (1) a legal duty owed to him by the foreclosing party;
(2) a breach of that duty; (3) a causal connection between the breach of that
duty and the injury he sustained; and (4) damages. Heritage Creek Dev. Corp.
v. Colonial Bank, 601 S.E.2d 842, 844 (Ga. Ct. App. 2004).
According to Chase, the property has not yet been foreclosed upon, and
Plaintiff presents no evidence to dispute this fact. (Chase Decl., Dkt. [121-3] ¶
21.) Therefore, Chase argues that Plaintiff’s wrongful foreclosure claim fails as
a matter of law. The Court agrees. “[U]nder Georgia law [Plaintiff Jordan]
must first show that his property was sold at foreclosure in order to state a
plausible claim for wrongful foreclosure. Because he has not alleged that a
foreclosure sale occurred, [Plaintiff Jordan] has failed to state such a claim.”
Thomas v. Bank of America, No. 13-10845, 2014 WL 657830, at *3 (11th Cir.
Feb. 21, 2014); see also Edwards v. BAC Home Loan Servicing, L.P., No. 1:11CV-2465-RWS, 2012 WL 4327052, at *1 (N.D. Ga. Sept. 14, 2012) (“Plaintiffs
may not state a claim for wrongful foreclosure where no foreclosure sale has
actually occurred.”). Therefore, Chase is entitled to summary judgment as to
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Plaintiff’s claim for wrongful foreclosure. Accordingly, Chase’s Motion for
Summary Judgment [121] is GRANTED.
Conclusion
For the foregoing reasons:
(1)

Plaintiff Jordan’s Motion to Allow Motion to Extend the Page
Limit [132] and Motion to Extend the Page Limit [133] are
GRANTED;

(2)

Plaintiff Kelley’s Emergency Motion Requesting Permission for
Additional Time to File Motion for Reconsideration [143] is
GRANTED, nunc pro tunc to October 31, 2013, and her
Amended and Supplemental Motion for Permission to Obtain
Additional Time to File Motion for Reconsideration [155] is
GRANTED, nunc pro tunc to November 21, 2013;

(3)

Plaintiff Kelley’s Motion to File Amended Notice of Appeal [152]
is DENIED as moot;

(4)

Plaintiff Kelley’s Motion for Leave to File Excess Pages [161] is
GRANTED, and her Motion for Reconsideration [157] is
DENIED; and
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(5)

Defendant JP Morgan Chase Bank’s Motion for Summary
Judgment [121] is GRANTED. The Clerk is DIRECTED to close
the case.

SO ORDERED, this 28th

day of April, 2014.

________________________________
RICHARD W. STORY
United States District Judge

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