Thompson-El v. Bank of America, N.A. et al

Filing 43

ORDER DISMISSING without prejudice Defendants William Braswell, Century 21 Bryant Realty, Fowler Hein Cheatwood & Williams, McCalla Raymer, BAC Home Loans Servicing, Bank of America, Federal National Mortgage Association; denying as moot 4 Motion to Dismiss, denying as moot 5 Motion to Dismiss for Failure to State a Claim, denying as moot 7 Motion to Dismiss, denying as moot 18 Motion to Dismiss, denying as moot 24 Motion to Dismiss for Failure to State a Claim. Signed by Judge Thomas W. Thrash, Jr on 12/12/12. (dr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ELLA M. THOMPSON-EL,
Plaintiff,
v.

CIVIL ACTION FILE
NO. 1:12-CV-840-TWT

BANK OF AMERICA, N.A., et al.,
Defendants.

ORDER

This is an action for wrongful foreclosure. It is before the Court on Defendants
William Braswell and Century 21 Bryant Realty’s Motion to Dismiss [Doc. 4],
Defendant Fowler, Hein, Cheatwood & Williams, P.A.’s Motion to Dismiss [Doc. 5],
Defendant McCalla Raymer, LLC’s Motion to Dismiss [Doc. 7], the Plaintiff’s
Motion to Dismiss Defendant Fowler, Hein, Cheatwood, & Williams, P.A. [Doc. 18],
and Defendants BAC Home Loans Servicing, LP, Bank of America, N.A., and Federal
National Mortgage Association’s Motion to Dismiss [Doc. 24]. For the reasons set
forth below, the Court concludes it does not have subject matter jurisdiction.
Accordingly, Defendants William Braswell, Century 21 Bryant Realty, Fowler, Hein,
Cheatwood & Williams, P.A., McCalla Raymer, LLC, BAC Home Loans Servicing,
LP, Bank of America, N.A., and Federal National Mortgage Association are
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DISMISSED without prejudice. Defendants William Braswell and Century 21 Bryant
Realty’s Motion to Dismiss [Doc. 4], Defendant Fowler, Hein, Cheatwood &
Williams, P.A.’s Motion to Dismiss [Doc. 5], Defendant McCalla Raymer, LLC’s
Motion to Dismiss [Doc. 7], and Defendants BAC Home Loans Servicing, LP, Bank
of America, N.A., and Federal National Mortgage Association’s Motion to Dismiss
[Doc. 24] are DENIED as MOOT.
I. Background
Plaintiff, Ella M. Thompson-El, purchased property located at 4454 Pamela
Lane, SW, Atlanta, Georgia 30331 (the “Property”), on December 1, 2000. (Compl.
¶ 11). The Plaintiff executed a promissory note and security deed with Defendant
Bank of America. (Compl. ¶ 12). The Plaintiff timely made her mortgage payments
until experiencing hardship in 2009. (Compl. ¶ 13).
The Plaintiff notified Bank of America of her hardship and requested a loan
modification. In response, Bank of America offered a modification requiring
substantially larger payments than the Plaintiff was currently required to make, along
with a new down payment of $10,000. (Compl. ¶¶ 14-15). The Plaintiff determined
this rate was impermissible under the law and notified Bank of America. (Compl. ¶
16).

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Apparently without further communication, on October 5, 2010, Bank of
America foreclosed on the Property. (Compl. ¶ 17). The Plaintiff contends she was
not given proper notice of the foreclosure and that she first learned of the foreclosure
three days later when Defendant Braswell left a message on the Property’s door.
(Compl. ¶¶ 17-18). Upon learning of the foreclosure, the Plaintiff contacted BAC
Home Loans Servicing, LP, and was told her loan modification was still under review
and that BAC was unaware of any foreclosure. What followed was a series of state
court proceedings and confusion concerning the foreclosure and modification
processes, the details of which do not need to be recited in this Order.
The Plaintiff filed the instant suit on March 12, 2012, alleging causes of action
for Wrongful Foreclosure in violation of O.C.G.A. § 44-14-162.2(a), for the Breach
of the Implied Covenant of Good Faith and Fair Dealing, for Breach of the Emergency
Economic Stabilization Act, and for Intentional Infliction of Emotional Distress.
The Plaintiff’s complaint alleged diversity jurisdiction under 28 U.S.C. § 1332.
(Compl. ¶ 1). However, the Plaintiff’s complaint also seemed to allege that four of
the Defendants, McCalla Raymer, LLC, Fowler, Hein, Cheatwood & Williams, P.A.,
Century 21 Bryant Realty, and William Braswell were citizens of Georgia, where the
Plaintiff is also a citizen. (See Compl. ¶¶ 3-10). Defendant McCalla Raymer argued
in its motion to dismiss that the Plaintiff had not properly pled diversity jurisdiction.

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(See Def. McCalla Raymer’s Br. in Supp. of Def. McCalla Raymer’s Mot. to Dismiss,
at 7-9). In response, the Plaintiff conceded that diversity jurisdiction was improper
and argued that the Court should exercise federal question jurisdiction pursuant to 28
U.S.C. § 1332. (See Pl.’s Br. in Opp. to Def. McCalla Raymer’s Mot. to Dismiss, at
6).
II. Discussion
The Court is obligated to inquire into its own jurisdiction. Federal district
courts have original jurisdiction over, among other cases, “federal question” cases.
Federal question cases are those “arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331. A case “arises under” federal law “if federal
law creates the cause of action, or if a substantial disputed issue of federal law is a
necessary element of a state law claim.” Pacheco de Perez v. AT&T Co., 139 F.3d
1368, 1373 (11th Cir. 1998) (citing Franchise Tax Bd. of Cal. v. Construction
Laborers Vacation Trust for S. Cal., 463 U.S. 1, 13 (1983)).
Here, the Plaintiff only alleges a single cause of action capable of invoking
federal question jurisdiction: the alleged breach of the Emergency Economic
Stabilization Act of 2008 (the “EESA”). (Compl. ¶¶ 62-68). However, the EESA
does not provide a private cause of action. See Miller v. Chase Home Finance, LLC,
677 F.3d 1113, 1115-17 (11th Cir. 2012) (reviewing the EESA and the regulations

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promulgated under it and concluding that the act provides neither an express nor an
implied private right of action).
A plaintiff cannot establish federal question jurisdiction through a statute that
does not provide a private cause of action. See Jairath v. Dyer, 154 F.3d 1280, 128384 (11th Cir. 1998) (quoting Merrell Dow Pharmaceuticals Inc. v. Thompson, 478
U.S. 804, 814 (1986)); Zoher v. NHC Healthcare Sys., No. 2:11-cv-00086, 2011 U.S.
Dist. LEXIS 131063, at *5-6 (M.D. Fla. Nov. 14, 2011) (“Since there is no private
cause of action [under the federal statute], there is no claim that ‘arises under’ federal
law within the meaning of 28 U.S.C. § 1331.”). Accordingly, because the EESA does
not provide a private cause of action, the Plaintiff has not established federal question
jurisdiction. The Court therefore concludes it does not have jurisdiction over this
matter.
III. Conclusion
For the reasons set forth above, the Court does not have subject matter
jurisdiction over this action. Accordingly, Defendants William Braswell, Century 21
Bryant Realty, Fowler, Hein, Cheatwood & Williams, P.A., McCalla Raymer, LLC,
BAC Home Loans Servicing, LP, Bank of America, N.A., and Federal National
Mortgage Association are DISMISSED without prejudice. Defendants William
Braswell and Century 21 Bryant Realty’s Motion to Dismiss [Doc. 4], Defendant

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Fowler, Hein, Cheatwood & Williams, P.A.’s Motion to Dismiss [Doc. 5], Defendant
McCalla Raymer, LLC’s Motion to Dismiss [Doc. 7], the Plaintiff’s Motion to
Dismiss Defendant Fowler, Hein, Cheatwood, & Williams, P.A. [Doc. 18], and
Defendants BAC Home Loans Servicing, LP, Bank of America, N.A., and Federal
National Mortgage Association’s Motion to Dismiss [Doc. 24] are DENIED as
MOOT.
SO ORDERED, this 12 day of December, 2012.

/s/Thomas W. Thrash
THOMAS W. THRASH, JR.
United States District Judge

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