Walton v. Secretary of Veterans Affairs et al
Filing
23
ORDER granting Defendants Bank of America, N.A. and Deutsche Bank of National Trust Company's 18 Motion to Dismiss and Defendant Secretary of Veterans Affair's 19 Motion to Dismiss Amended Complaint are GRANTED. Plaintiff's 20 Motion to Strike Sally Quillian Yates & R. David Powell Motion to Dismiss Amended Complaint and Memorandum of Law in Support of Their Motion to Dismiss is DENIED. The Clerk shall close the case. Signed by Judge Richard W. Story on 10/15/2014. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MARILYN A. WALTON,
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Plaintiff,
v.
SECRETARY OF VETERANS
AFFAIRS, BANK OF AMERICA,
N.A., as successor by merger to
BAC HOME LOANS
SERVICING, LP, and
DEUTSCHE BANK NATIONAL
TRUST COMPANY f/k/a
BANKERS TRUST COMPANY
OF CALIFORNIA, N.A.,
Defendants.
CIVIL ACTION NO.
1:13-CV-00918-RWS
ORDER
This case comes before the Court on Defendants Bank of America, N.A.
and Deutsche Bank National Trust Company’s Motion to Dismiss [18],
Defendant Secretary of Veterans Affairs’s Motion to Dismiss Amended
Complaint [19], and Plaintiff’s Motion to Strike Sally Quillian Yates & R.
David Powell Motion to Dismiss Amended Complaint and Memorandum of
Law in Support of Their Motion to Dismiss [20]. After considering the Record,
the Court enters the following Order.
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Background
This case arises out of a mortgage loan on residential property located at
4605 Wonder Valley Trail, Decatur, Georgia 30034 (the “Property”). It
appears, based on the facts presented to this Court, that on September 25, 1998,
Plaintiff purchased the Property from the Department of Veterans Affairs (the
“VA”) and executed a promissory note in the amount of $90,187.50 and
security deed in favor of the Secretary of Veterans Affairs to secure a mortgage
on the Property. (Dkt. [1-1], Ex. B and E.) The security deed was then
assigned to Bankers Trust Company of California, N.A. (“Bankers Trust”) on
February 25, 1999. (Dkt. [1-1], Ex. G.)
Walton applied to Defendant Bank of America, N.A. (“BANA”) for a
loan modification; her application was denied. (Am. Compl., Dkt. [17] ¶¶ 47,
84.) In 2014, BANA communicated with Plaintiff about loan modifications and
foreclosure prevention alternatives. (Id. at 27-36.)
Plaintiff filed this quiet title action in Dekalb County Superior Court on
February 15, 2013. Asserting diversity jurisdiction, Bank Defendants then
removed the action to this Court on March 22, 2013, and Bank Defendants filed
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their Motion to Dismiss [3] on March 29, 2013. CitiMortgage, Inc. [10] and the
Secretary of Veterans Affairs [14] also moved to dismiss.
On February 27, 2014, the Court granted the Bank Defendants’ Motion to
Dismiss Plaintiff’s Quiet Title Complaint [16]. The Court directed Plaintiff to
file an amended complaint consistent with the Court’s opinion and order, and
denied Defendants the Secretary of Veterans Affairs’s and CitiMortgage’s
motions to dismiss as moot. Plaintiff filed an Amended Complaint [17] on
March 12, 2014. Defendant the Secretary of Veterans Affairs [19] and
Defendants Bank of America and Deutsche Bank National Trust Company [18]
each move to dismiss Plaintiff’s Amended Complaint. Plaintiff filed a Motion
to Strike Sally Quillian Yates & R. David Powell Motion to Dismiss Amended
Complaint and Memorandum of Law in Support of Their Motion to Dismiss
[20] (“Motion to Strike”). The Court considers each Motion below.
Discussion
I.
Legal Standard
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a
“short and plain statement of the claim showing that the pleader is entitled to
relief.” While this pleading standard does not require “detailed factual
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allegations,” “labels and conclusions” or “a formulaic recitation of the elements
of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In order to
withstand a motion to dismiss, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Id. (quoting Twombly, 550 U.S. at 570). A complaint is plausible on its face
when the plaintiff pleads factual content necessary for the court to draw the
reasonable inference that the defendant is liable for the conduct alleged. Id.
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.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273
n.1 (11th Cir. 1999). However, the same does not apply to legal conclusions set
forth in the complaint. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260
(11th Cir. 2009) (citing Iqbal, 556 U.S. at 678). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678. Furthermore, the court does not “accept as
true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at
555.
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“The district court generally must convert a motion to dismiss into a
motion for summary judgment if it considers materials outside the complaint.”
D.L. Day v. Taylor, 400 F.3d 1272, 1275-76 (11th Cir. 2005); see also FED. R.
CIV. P. 12(d). However, documents attached to a complaint are considered part
of the complaint. FED. R. CIV. P. 10(c). Documents “need not be physically
attached to a pleading to be incorporated by reference into it; if the document’s
contents are alleged in a complaint and no party questions those contents, [the
court] may consider such a document,” provided it is central to the plaintiff’s
claim. D.L. Day, 400 F.3d at 1276. At the motion to dismiss phase, the Court
may also consider “a document attached to a motion to dismiss . . . if the
attached document is (1) central to the plaintiff’s claim and (2) undisputed.” Id.
(citing Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002)). “‘Undisputed’
means that the authenticity of the document is not challenged.” Id.
Finally, because Plaintiff is acting pro se, her “pleadings are held to a less
stringent standard than pleadings drafted by attorneys and will, therefore, be
liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998). “This leniency, however, does not require or allow courts to rewrite
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an otherwise deficient pleading in order to sustain an action.” Thomas v.
Pentagon Fed. Credit Union, 393 F. App’x 635, 637 (11th Cir. 2010).
II.
Defendants Bank of America, N.A. and Deutsche Bank National
Trust Company’s Motion to Dismiss [18]
Defendants Bank of America, N.A. (“BANA”) and Deutsche Bank
National Trust Company (“Deutsche Bank”) (collectively, “Bank Defendants”)
move to dismiss Plaintiff’s Amended Complaint on the grounds that it is an
impermissible shotgun pleading and that it fails to state a claim upon which
relief may be granted. (“Bank Defs.’ Mot. to Dismiss,” Dkt. [18].)
Bank Defendants first argue that the Amended Complaint constitutes an
impermissible shotgun pleading that fails to comply with the pleading
requirements of the Federal Rules of Civil Procedure. The typical shotgun
pleading is one that “contains several counts, each one incorporating by
reference the allegations of its predecessors, leading to a situation where most
of the counts (i.e., all but the first) contain irrelevant factual allegations and
legal conclusions.” Strategic Income Fund, LLC v. Spear, Leeds & Kellogg
Corp., 305 F.3d 1293, 1295 (11th Cir. 2002). The term also refers to pleadings
that are “replete with factual allegations and rambling legal conclusions.”
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Osahar v. U.S. Postal Service, 297 Fed. App’x 863, 864 (11th Cir. 2008). The
Eleventh Circuit has repeatedly condemned the use of shotgun pleadings for
“imped[ing] the administration of the district courts’ civil docket.” PVC
Windoors, Inc. v. Babbitbay Beach Constr., N.V., 598 F.3d 802, 806 n.4 (11th
Cir. 2010). Indeed, shotgun pleadings require the court to sift through rambling
and often incomprehensible allegations in an attempt to separate the meritorious
claims from the unmeritorious, resulting in a “massive waste of judicial and
private resources.” Id. (citation omitted). The Eleventh Circuit thus has
established that shotgun pleading is an unacceptable form of establishing a
claim for relief. Strategic Income Fund, 305 F.3d at 1296.
The Court finds that Plaintiff’s Amended Complaint is not subject to
dismissal as a shotgun pleading. Plaintiff is acting pro se and her claims are,
with careful reading, sufficiently comprehensible to put Defendants on notice of
the claims leveled against them. The Court next considers whether the
Amended Complaint is otherwise subject to dismissal.
Bank Defendants also move to dismiss the Amended Complaint under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which
relief may be granted. Bank Defendants argue that Plaintiff’s claims fail as a
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matter of law because they are erroneous, improperly pled, and fail to state a
cognizable claim. (Bank Defs.’ Mot. to Dismiss, Dkt. [18] at 8.)
First, Bank Defendants argue that Plaintiff has not shown an “actual
controversy” with respect to her request for a declaratory judgment that
Defendants “are not entitled to pursue foreclosure whether judicial or nonjudicial against [the Property]” (Count I). (See Am. Compl., Dkt. [17] ¶¶ 5761.) Defendants claim that no immediate controversy necessitates resolution,
and moreover, that foreclosing entities may lawfully exercise the power of sale
contained in a security deed regardless of whether the entity has an interest in
the underlying promissory note. Additionally, Plaintiff seeks an injunction
(Count II) enjoining all Defendants from initiating or continuing a foreclosure
proceeding. (See id. ¶¶ 62-65.)
The Court agrees that on these Counts, Plaintiff has failed to state a claim
upon which relief may be granted. Plaintiff does not identify any language in
her security deed prohibiting assignment by the Secretary of Veterans Affairs,
and furthermore, the Security Deed expressly grants rights to the Secretary of
Veterans Affairs and his successors and assigns. (Dkt. [17] at 15.) By virtue of
the assignment, Defendant Secretary of Veterans Affairs transferred the “right,
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title and interest” under the Security Deed to Bankers Trust, now known as
Deutsche Bank. “Under 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., 743 S.E.2d 428, 433 (Ga. 2013). Additionally, “nothing in Georgia
law requires that an assignee of a security deed granting the right to foreclose
must also hold the note before initiating foreclosure proceedings.” Larose v.
Bank of Am., N.A., 740 S.E.2d 882, 883 (Ga. Ct. App. 2013). Accordingly, the
Court agrees that Plaintiff has failed to state a claim upon which relief may be
granted in Counts I or II, and those counts are DISMISSED.
Next, Bank Defendants argue that because Plaintiff’s Quiet Title claim
has been previously dismissed by this Court, the Quiet Title claim in Count III
should again be dismissed. The Court agrees. For the reasons stated in the
Court’s Order Granting Bank Defendants’ Motion to Dismiss Plaintiff's Quiet
Title Complaint [10], Count III is DISMISSED.
The Bank Defendants also argue that Plaintiff’s Count IV (Violation of
Duty of Good Faith and Fair Dealing and Promissory Estoppel and Conspiracy)
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should be treated as a claim for promissory estoppel and dismissed. Because
Plaintiff enumerates a separate cause of action for Civil Conspiracy (“Count
V”), the Court will construe Count IV as asserting a claim based on promissory
estoppel. (See Am. Compl., Dkt. [17] ¶¶ 84-86.)
A successful claim of promissory estoppel requires Plaintiff to establish:
(1) the defendant made a promise or promises; (2) the defendant should
have reasonably expected the plaintiffs to rely on such promise; (3) the
plaintiffs relied on such promise to their detriment; and (4) an injustice
can only be avoided by the enforcement of the promise, because as a
result of the reliance, plaintiffs changed their position to their detriment
by surrendering, forgoing, or rendering a valuable right.
Sierra Craft, Inc. v. T.D. Farrell Constr., Inc., 638 S.E.2d 815, 820 (Ga. Ct.
App. 2007) (quoting Rental Equip. Grp. Inc v. MACI, LLC, 587 S.E.2d 364,
367 (Ga. Ct. App. 2003)). The doctrine only applies to “promise[s] which the
promisor should reasonably expect to induce action or forbearance on the part
of the promisee.” O.C.G.A. § 13-3-44. Such a promise, however, “must be of
such a character as to be capable of enforcement against the party making it, as
otherwise neither party will be bound.” McMurray v. Bateman, 144 S.E.2d
345, 353 (Ga. 1965) (quoting McCaw Mfg. Co. v. Felder, 41 S.E. 664, 666 (Ga.
1902)).
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The Court finds that Plaintiff has failed to allege sufficient facts to
support a promissory estoppel claim. Plaintiff claims that “Defendants ha[ve]
made promises to Plaintiff that are unfulfilled,” and that “Plaintiff applied for a
modification two times and was denied at the last moment.” (Am. Compl., Dkt.
[17] ¶ 84.) But the Court finds that these threadbare allegations are not
sufficient to satisfy the elements of promissory estoppel. As such, Count IV is
DISMISSED.
Next, Bank Defendants move to dismiss Plaintiff’s Civil Conspiracy
claim (Count V), arguing that Plaintiff has not demonstrated the existence of an
underlying predicate tort. (Bank Defs.’ Mot. to Dismiss, Dkt. [18] at 15.)
“A conspiracy is a combination of two or more persons to accomplish an
unlawful end or to accomplish a lawful end by unlawful means.” MustaqeemGraydon v. Suntrust Bank, 573 S.E.2d 455, 461 (Ga. Ct. App. 2002) (quoting
First Fed. Sav. Bak v. Hart, 363 S.E.2d 832, 833 (Ga. Ct. App. 1987)). “To
recover damages for a civil conspiracy claim, a plaintiff must show that two or
more persons, acting in concert, engaged in conduct that constitutes a tort.” Id.
But, “[w]here civil liability for a conspiracy is sought to be imposed, the
conspiracy itself furnishes no cause of action. The gist of the action is not the
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conspiracy alleged, but the tort committed against the plaintiff and the damage
thereby done.” Jones v. Spindel, 147 S.E.2d 615, 616 (Ga. Ct. App. 1966).
When alleged, a conspiracy may be pleaded in general terms. Id.
The Court finds that Plaintiff’s allegations in support of a civil
conspiracy are conclusory and subject to dismissal under Rule 8(a).
Additionally, while Plaintiff bases her conspiracy allegations on a general
“conspiracy to defraud,” she does not plead an underlying claim of fraud, and
Georgia law provides no independent cause of action for conspiracy. As such,
Count V fails to state a claim upon which relief may be granted, and is also
subject to dismissal under Rule 12(b)(6). Accordingly, Count V is
DISMISSED.
Finally, because the Court has dismissed all other Counts and because
Plaintiff is proceeding pro se, the Court finds that she is not entitled to relief on
Count VI (For Attorneys Fees and Legal Expenses). As such, Count VI is
DISMISSED.
III.
Defendant Secretary of Veterans Affairs’s Motion to Dismiss [19]
and Plaintiff’s Motion to Strike [20]
Plaintiff, in her Motion to Strike, claims that Sally Quillian Yates, U.S.
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Attorney, and R. David Powell, Assistant U.S. Attorney, unlawfully acted in
representing Defendant Secretary before the Court. (Pl.’s Aff. and Br. Memo.
to the Ct. and Honorable Judge, Dkt. [20-1] ¶ 13.) As an initial matter, the
Court DENIES Plaintiff’s Motion to Strike [20]. Ms. Yates, as the U.S.
Attorney for the Northern District of Georgia, and Mr. Powell, as an Assistant
U.S. Attorney for the Northern District of Georgia, have clear authority to
represent the United States government under 28 U.S.C. § 541 et seq. The
Court now construes Plaintiff’s Motion as a Response to Defendant Secretary’s
Motion to Dismiss.
Defendant Secretary of Veterans Affairs (“Secretary”) moves to dismiss
the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1),
(5), (6), and (h)(3), claiming that the Court does not have subject matter
jurisdiction, that Plaintiff has failed to serve process, and that the Amended
Complaint fails to state a claim upon which relief may be granted. Plaintiff, in
her Motion to Strike, argues that her Amended Complaint has met the pleading
standards required by the Federal Rules. (See, e.g., id. ¶¶ 34-35.) Defendant
Secretary responds to Plaintiff’s Motion both as a Response in Opposition to
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Plaintiff’s Motion to Strike [21] and as a Reply in Support of Motion to Dismiss
[22].
The Court now considers whether it has subject matter jurisdiction to
hear Plaintiff’s claims against Defendant Secretary. Federal Rule of Civil
Procedure 12 provides: “Whenever it appears by suggestion of the parties or
otherwise that the court lacks jurisdiction of the subject matter, the court shall
dismiss the action.” FED. R. CIV. P. 12(h)(3). Defendant Secretary argues that
this Court lacks subject matter jurisdiction under the doctrine of sovereign
immunity.
As an initial matter, the Court agrees with Defendant Secretary that
because the Department of Veterans Affairs is an agency of the United States,
and because Plaintiff names Defendant Secretary in his official capacity, this
case presents a question of sovereign immunity. See Kentucky v. Graham, 473
U.S. 159, 166 (1985) (“[A] plaintiff seeking to recover on a damages judgment
in an official-capacity suit must look to the government entity itself.”). Under
the doctrine of sovereign immunity, the United States is immune from suit
except to the extent that immunity has been expressly waived by statute.
Lehman v. Nakshian, 453 U.S. 156, 160 (1981). The United States can be sued
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only by its permission, and only by procedures set forth by Congress. United
States v. Dalm, 494 U.S. 596 (1990); Lehman, 453 U.S. at 160; United States v.
Testan, 424 U.S. 392, 399 (1976). Thus, absent an express statutory waiver, a
court lacks subject matter jurisdiction to entertain an action against the United
States, and the action must be dismissed. United States v. Sherwood, 312 U.S.
584, 586 (1941).
Any lawsuit against the United States must be brought in
compliance with a specific statute that expressly waives sovereign immunity.
Testan, 424 U.S. at 399. Such a waiver of sovereign immunity must be strictly
construed in favor of the sovereign and may not be extended beyond the explicit
language of the statute. Soriano v. United States, 352 U.S. 270 (1957). The
terms of the United States’ consent to be sued in any court define that court's
jurisdiction to entertain the suit. Sherwood, 312 U.S. 584, 586 (1941).
Because the party asserting jurisdiction bears the burden, Plaintiff here
must show that the claim asserted is covered by a specific statutory
authorization to sue the United States, or that in effect the suit does not operate
as one against the United States. See Thomson v. Gaskill, 315 U.S. 442, 446
(1942). The Court finds that Plaintiff has failed to meet this burden. Plaintiff
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has not pled her claims pursuant to any statute that would allow suit against the
United States, the Department, or the Secretary. Accordingly, all claims against
Defendant Secretary are DISMISSED for lack of subject matter jurisdiction.
Conclusion
For the foregoing reasons, Defendants Bank of America, N.A. and
Deutsche Bank National Trust Company’s Motion to Dismiss [18] and
Defendant Secretary of Veterans Affairs’s Motion to Dismiss Amended
Complaint [19] are GRANTED. Plaintiff’s Motion to Strike Sally Quillian
Yates & R. David Powell Motion to Dismiss Amended Complaint and
Memorandum of Law in Support of Their Motion to Dismiss [20] is DENIED.
The Clerk shall close the case.
SO ORDERED, this 15th day of October, 2014.
________________________________
RICHARD W. STORY
United States District Judge
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