Clark v. PNC Bank, N.A. et al

Filing 26

OPINION AND ORDER that McCalla Raymer, LLC's Motion for Judgment on the Pleadings 4 is GRANTED. IT IS FURTHER ORDERED that Federal National Mortgage Corporation and PNC Bank, N.A.'s Motion to Dismiss 10 is GRANTED. IT IS FURTHER ORDERE D that McCalla Raymer, LLC's Motion to Stay Discovery 5 and Plaintiff William A. Clark's Motion for Order Denying Motions for Summary Judgment or Permitting Discovery 16 are DENIED AS MOOT. Signed by Judge William S. Duffey, Jr on 2/3/2014. (anc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WILLIAM A. CLARK,
Plaintiff,
v.

1:13-cv-1305-WSD

PNC BANK, N.A., PNC
MORTGAGE CORPORATION,
MCCALLA RAYMER, LLC, and
FEDERAL NATIONAL
MORTGAGE CORPORATION,
Defendants.

OPINION AND ORDER
This matter is before the Court on McCalla Raymer, LLC’s (“McCalla”)
Motion for Judgment on the Pleadings [4] and Motion to Stay Discovery [5], and
Federal National Mortgage Corporation (“Fannie Mae”) and PNC Bank, N.A.’s
(“PNC”)1 (together with McCalla, “Defendants”) Motion to Dismiss [10].2 Also
before the Court is Plaintiff William A. Clark’s (“Plaintiff” or “Clark”) “Motion
for Order Denying Motions for Summary Judgment or Permitting Discovery” [16].
1

PNC asserts that there is no entity named “PNC Mortgage Corporation,” but
that PNC Mortgage, an unincorporated division of PNC Bank, N.A., joins in the
Motion to Dismiss through PNC. (Mot. to Dismiss at 1 n.1).
2
Fannie Mae and PNC move in the alternative for summary judgment.
Because the Court finds that Plaintiff has not, and cannot, allege facts sufficient to
support a viable claim against Fannie Mae or PNC, the Court does not reach the
merits of their alternative basis for relief.

I.

BACKGROUND
On August 21, 2003, Plaintiff refinanced his existing home mortgage by

executing a promissory note (the “Note”) in the amount of $114,700, secured by a
deed (the “Security Deed”) to real property located at 1023 Strawberry Lane,
Ellenwood, Georgia (the “Property”). (Am. Compl. [2] at 11-12; Security Deed at
1, 3). Plaintiff executed the Security Deed in favor of “National City Mortgage
Co. dba Accubanc Mortgage” (“National City Mortgage”). (Id.). Under the terms
of the Security Deed, Plaintiff “grant[ed] and convey[ed] to [National City
Mortgage] and [National City Mortgage’s] successors and assigns, with power of
sale, the [Property].” (Security Deed at 3).
In October 2003, Fannie Mae “purchased the Plaintiff’s mortgage loan and
acquired an interest in the Plaintiff’s [S]ecurity [D]eed.” (Am. Compl. at 12).
On October 1, 2008, National City Mortgage merged into National City
Bank. On November 6, 2009, National City Bank merged into PNC. (Id.).3

3

See National City Mortgage Capital LLC, and National City Bank, as
successor to National City Mortgage Co., Current Report for Oct. 1, 2008, Form
8-K, http://www.sec.gov/Archives/edgar/data/1425796/000095015208007699/
l34024ae8vk.htm; Comptroller of the Currency, Conditional Approval #928, Re:
Application to merge National City Bank with and into PNC Bank, N.A.,
http://www.occ.gov/static/interpretations-and-precedents/nov09/ca928.pdf;
PNC Financial Services Group, Inc. (parent company of PNC Bank, N.A.), Annual
Report for 2010, Form 10-K, http://www.sec.gov/Archives/edgar/data/713676/
000119312511051725/d10k.htm (last visited Feb. 3, 2014). These documents
2

At some point, Plaintiff defaulted on his loan obligations. On June 2, 2010,
PNC “forwarded the Plaintiff’s file to [McCalla] for the scheduling of a
nonjudicial foreclosure sale” of the Property. (Id. at 13).
On July 28, 2010, McCalla, on behalf of PNC, sent Plaintiff a Notice of Sale
Under Power (“NSUP”) stating that the Property was scheduled to be sold at
foreclosure on the first Tuesday in September, 2010, and identifying PNC as
Plaintiff’s loan servicer and the entity with full authority to negotiate, amend and
modify the terms of Plaintiff’s mortgage. (Id. at 14).
On September 7, 2010, PNC conducted a foreclosure sale of the Property, at
which PNC was the highest bidder. PNC, as attorney-in-fact for Plaintiff and
pursuant to the power of sale in the Security Deed, executed a Deed Under Power
were required by law to be filed with the Comptroller of the Currency and the
Securities and Exchange Commission and they are generally available to the
public. The Court takes judicial notice that PNC is the successor by merger to
National City Bank and National City Mortgage Co. See Fed. R. Evid. 201(b)(2)
(court may take judicial notice of fact not subject to reasonable dispute because it
can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.
308, 355 (2007) (on a motion to dismiss, court must consider the complaint and
matters of which it may take judicial notice); Horowitz v. CitiMortgage, Inc.,
533 F. App’x 885, 888 (11th Cir. 2013) (Jordan, C.J., concurring) (“[P]ursuant to
Federal Rule of Evidence 201 the district court properly took judicial notice of
[defendant’s] regulatory filings with both the New York Department of State and
the [SEC], and those filings establish the fact of the merger.”); Horsley v. Rivera,
292 F.3d 695, 700 (11th Cir. 2002) (Judgment on the pleadings is appropriate
when no material facts are in dispute, and judgment may be rendered by
considering the substance of the pleadings and any judicially noticed facts).
3

conveying the Property to PNC. (Id. at 15-16). Also on September 7, 2010, PNC
executed a Special Warranty Deed conveying the Property to Fannie Mae. (Id.).
On February 6, 2012, the Deed Under Power and Special Warranty Deed were
recorded in the Superior Court of Henry County, Georgia.
On January 27, 2012, McCalla, on behalf of Fannie Mae, filed a
dispossessory action against Clark in the Magistrate Court of Henry County,
Georgia, seeking possession of the Property.4 (Id. at 16). On February 28, 2012,
the Henry County Magistrate Court, after having conducted a hearing at which
Clark’s counsel appeared and evidence and testimony was presented, issued an
order and judgment granting possession of the Property to Fannie Mae. On
March 5, 2012, Clark appealed the Magistrate Court’s order. On March 20, 2012,
because Clark failed to tender the monthly rent amount while his appeal was
pending, as required by the Magistrate Court’s order, Fannie Mae requested a Writ
of Possession, which was granted on March 22, 2012, and executed on March 26,
2012. (Id. at 18).
On February 27, 2012, Plaintiff filed his Complaint [1.1 at 3-16] in the
Superior Court of Fulton County, Georgia,5 seeking to enjoin “Defendants from
transferring the Plaintiff’s property . . . or interfering with [his] right of
4
5

No. 2012-579CD.
No. 2012cv211996.
4

possession,” enjoin and stay the Henry County dispossessory action, set aside the
foreclosure sale, “restore and return all interest in the [P]roperty to the Plaintiff
without restriction,” void any writ of possession issued, and recover consequential
damages, attorney’s fees and costs.
On April 2, 2013, Plaintiff amended his Complaint. Plaintiff seeks to bring
a putative class action and asserts claims for: wrongful foreclosure (Claim I);
slander of title (Claim II); slander of credit (Claim III); infliction of emotional
distress (Claim IV); quiet title (Claim V); fraud (Claim VI); exceeding authority
against McCalla (Claim VII); violation of the duty to fairly exercise the power of
sale (Claim VIII); punitive damages (Claim IX); and attorney’s fees and costs
(Claim X). Plaintiff asserts that PNC lacked authority to foreclose on the Property
because it was not the holder of the Note and Security Deed, and that the Deed
Under Power and Special Warranty Deed are not valid.6
On April 19, 2013, Defendants removed the Fulton County action to this
Court based on the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2).
On April 26, 2013, McCalla filed its Motion for Judgment on the Pleadings
[4], and Fannie Mae and PNC filed their Motion to Dismiss [10].
6

Plaintiff’s Complaint and Amended Complaint have substantial
characteristics of a shotgun pleading which has the effect of depleting judicial
resources and depriving other litigants of timely access to the Court. The time and
effort to consider Plaintiff’s undisciplined litany of claims illustrates this impact.
5

II.

DISCUSSION
A.

Legal Standards
1.

Motion for Judgment on the Pleadings

“Judgment on the pleadings is appropriate where there are no material facts
in dispute and the moving party is entitled to judgment as a matter of law.”
Cannon v. City of West Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001). In
considering a motion for judgment on the pleadings, the allegations contained in
the complaint must be accepted as true and the facts and all inferences must be
construed in the light most favorable to the nonmoving party. See Hawthorne v.
Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998). Motions for
judgment on the pleadings based on allegations of a failure to state a claim are
evaluated using the same standard as a Rule 12(b)(6) motion to dismiss. See
Sampson v. Washington Mut. Bank, 453 F. App’x 863, 865 n.2 (11th Cir. 2011);
Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293,
1295 n.8 (11th Cir. 2002); Provident Mut. Life Ins. Co. of Phila. v. City of Atlanta,
864 F. Supp. 1274, 1278 (N.D. Ga. 1994) (“A motion for judgment on the
pleadings is subject to the same standard as is a Rule 12(b)(6) motion to dismiss.”).

6

2.

Motion to Dismiss

On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the Court must “assume that the factual allegations in the
complaint are true and give the plaintiff[] the benefit of reasonable factual
inferences.” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir.
2010). Although reasonable inferences are made in the plaintiff’s favor,
“‘unwarranted deductions of fact’ are not admitted as true.” Aldana v. Del Monte
Fresh Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005) (quoting S. Fla. Water
Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n.10 (1996)). The Court is not required
to accept conclusory allegations and legal conclusions as true. See Am. Dental
Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (construing Ashcroft
v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).
“To survive 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.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570)). Mere “labels and
conclusions” are insufficient. Twombly, 550 U.S. at 555. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This requires more than

7

the “mere possibility of misconduct.” Am. Dental, 605 F.3d at 1290 (quoting
Iqbal, 556 U.S. at 679). The well-pled allegations must “nudge[] their claims
across the line from conceivable to plausible.” Id. at 1289 (quoting Twombly,
550 U.S. at 570).
B.

Analysis7
1.

Defendants’ Standing to Foreclose

The crux of Plaintiff’s claims is that PNC lacked standing to foreclose on the
Property. It is undisputed that Plaintiff executed the Security Deed in favor of

7

To the extent Plaintiff argues that Defendants’ Motion for Judgment on the
Pleadings and Motion to Dismiss are barred by res judicata, the Fulton County
Superior Court’s order denying Defendants’ previous motions to dismiss [1.12 at
17-19] was not a “judgment” or “previous adjudication on the merits” of this case.
See, e.g., O.C.G.A. § 9–12–40 (“a judgment of a court of competent jurisdiction
shall be conclusive between the same parties and their privies . . . .”) (emphasis
added); Karan, Inc. v. Auto-Owners Ins. Co., 629 S.E.2d 260, 262 (Ga. 2006)
(“Three prerequisites must be satisfied before res judicata applies—(1) identity of
the cause of action, (2) identity of the parties or their privies, and (3) previous
adjudication on the merits by a court of competent jurisdiction.”); Waldroup v.
Greene County Hosp. Auth., 463 S.E.2d 5, 7 (Ga. 1995) (“Collateral estoppel
precludes the re-adjudication of an issue that has previously been litigated and
adjudicated on the merits in another action between the same parties or their
privies.”); cf. In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001) (res
judicata “will bar a subsequent action if . . . there was a final judgment on the
merits”); Vintilla v. United States, 931 F.2d 1444 (11th Cir. 1991) (district court’s
initial denial of defendant’s motion to dismiss did not become law of the case so as
to preclude court from later granting the motion); Gregg v. United States Indus.,
Inc., 715 F.2d 1522, 1530 (11th Cir. 1983) (“[L]aw of the case applies only where
there has been a final judgment.”). It is troubling that Plaintiff’s counsel asserts an
argument that does not have a sound legal basis.
8

National City Mortgage. (Security Deed at 1). Under the terms of the Security
Deed, Plaintiff “grant[ed] and convey[ed] to [National City Mortgage] and
[National City Mortgage’s] successors and assigns, with power of sale, the
[Property].” (Id. at 3).
On October 1, 2008, National City Mortgage merged into National City
Bank. On November 6, 2009, National City Bank merged into PNC. (Am. Compl.
at 12). As a result of the mergers, PNC acquired the assets, rights and liabilities of
National City Mortgage, including the Security Deed. To the extent Plaintiff
argues that PNC lacked authority to foreclose on the Property in the absence of a
recorded assignment of the Security Deed to PNC, the merger itself was sufficient
to transfer National City Mortgage’s property interests to PNC. The Supreme
Court of Georgia recently stated: “When corporations merge, state law provides
that the title to each corporation’s property vests in the surviving corporation
without any conveyance, transfer, or assignment . . . . Similarly, federal banking
law provides that the corporate existence of merging banks shall continue in the
‘receiving association,’ which is considered the same corporation as its
predecessor.” Nat’l City Mortg. Co. v. Tidwell, 749 S.E.2d 730, 733 (Ga. 2013)
(citing O.C.G.A. §§ 7-1-536, 14-2-1106; 12 U.S.C. § 215a(e)). Specifically, the
National Banking Act provides:

9

The corporate existence of each of the merging banks or banking
associations participating in such merger shall be merged into and
continued in the receiving association and such receiving association
shall be deemed to be the same corporation as each bank or banking
association participating in the merger. All rights, franchises, and
interests of the individual merging banks or banking associations in
and to every type of property . . . shall be transferred to and vested in
the receiving association by virtue of such merger without any deed or
other transfer. The receiving association, upon the merger and
without any order or other action on the part of any court or otherwise,
shall hold and enjoy all rights of property, franchises, and interests . . .
in the same manner and to the same extent as such rights, franchises,
and interests were held or enjoyed by any one of the merging banks or
banking associations at the time of the merger . . . .
12 U.S.C. § 215a(e) (emphasis added). As a result of the mergers of National City
Mortgage into National City Bank, and National City Bank into PNC, by operation
of law, PNC acquired the assets, rights and liabilities of National City Mortgage,
including the Security Deed. PNC is thus entitled to exercise the power of sale in
the Security Deed.8, 9

8

This is further supported by O.C.G.A. § 23-2-114, which provides that,
“[u]nless the instrument creating the power specifically provides to the contrary, a
. . . successor of the grantee in a mortgage, deed of trust, deed to secure debt, bill
of sale to secure debt, or other like instrument, or an assignee thereof, or his
personal representative, heir, heirs, legatee, devisee, or successor may exercise any
power therein contained.” O.C.G.A. § 23-2-114. The Security Deed discloses no
intent on the part of Plaintiff to restrict National City Mortgage from assigning its
rights and it does not prohibit the transfer of National City Mortgage’s rights to its
successor. Rather, Plaintiff unequivocally granted to National City Mortgage, its
successors or assigns, the right to foreclose and sell the Property in the event of
Plaintiff’s default.
9
That the foreclosure sale was conducted by “PNC Bank, National
10

Plaintiff next argues that PNC lacks standing to foreclose on the Property
because it is “merely the servicer,” not the “secured creditor,” and it does not also
hold the Note. The Supreme Court of Georgia has expressly rejected this argument
and held that “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, 743 S.E.2d 428, 433 (Ga. 2013); see
also Harris v. Chase Home Fin., LLC, 524 F. App’x 590 (11th Cir. 2013) (applying
You).10, 11

Association sbm [successor by merger] to National City Bank sbm [successor by
merger] to National City Mortgage Co. dba Accubanc Mortgage” further supports
that PNC, by operation of law, now stands in the place of National City Mortgage
as the holder of the Security Deed. (Am Compl. at 15, 16).
10
To the extent Plaintiff asserts that PNC could not acquire any interest in the
Security Deed as a result of the merger because, at the time of the merger, Fannie
Mae owned Plaintiff’s Note and therefore must have owned Plaintiff’s Security
Deed, Georgia law does not require that a promissory note and the corresponding
security deed be assigned to the same entity. See, e.g., You, 743 S.E.2d at 431-432
(“splitting” ownership of a note from ownership of a deed not expressly prohibited
under Georgia law); Montoya v. Branch Banking & Trust Co., No. 1:11-cv-1869,
2012 WL 826993, at *5 (N.D. Ga. Mar. 9, 2012) (rejecting wrongful foreclosure
claim to the extent it was based on a note-splitting theory). Plaintiff does not
allege, and it does not appear, that the Security Deed was assigned to Fannie Mae
prior to foreclosure.
Georgia law requires that “[t]he security instrument or assignment thereof
vesting the secured creditor with title to the security instrument shall be filed prior
to the time of sale . . . .” O.C.G.A. § 44-14-162(b). Thus, at the time of
foreclosure, even if Fannie Mae “owned” Plaintiff’s Security Deed, the only
11

Plaintiff has not, and cannot, assert a viable claim under any legal theory
based on Defendants’ alleged lack of authority to foreclose on the Property.
Insofar as Plaintiff bases his claims for wrongful foreclosure, slander of title,
slander of credit, infliction of emotional distress, quiet title, fraud, exceeding
authority, and failure to fairly exercise the power of sale, on Defendants’ alleged
lack of authority to foreclose on the Property, these claims are required to be
dismissed.
2.

Wrongful Foreclosure and Failure to Fairly Exercise the
Power of Sale (Claims I and VIII)

To support a claim for wrongful foreclosure under Georgia law, a plaintiff
must establish: (1) the foreclosing party owes a legal duty to the plaintiff;
(2) breach of that duty; (3) a causal connection between the breach of that duty and
the injury sustained; and (4) damages. All Fleet Refinishing, Inc. v. West Georgia
Nat’l Bank, 634 S.E.2d 802, 807 (Ga. Ct. App. 2006). “A claim for wrongful
exercise of a power of sale under O.C.G.A. § 23-2-114 can arise when the creditor
recorded “security instrument or assignment thereof” for the Property was the
Security Deed, by which Plaintiff expressly granted the power of sale to National
City Mortgage and National City Mortgage’s successors and assigns—that is, to
PNC.
11
To the extent Plaintiff relies on Reese v. Provident Funding Assocs., LLP,
730 S.E.2d 551 (Ga. Ct. App. 2012), to support that only a secured creditor who
holds both the security deed and promissory note can foreclose on a property, the
Georgia Supreme Court vacated and remanded that decision for reconsideration in
light of You. See Reese, No. S12C2028, Order of May 20, 2013 (Ga. 2013).
12

has no legal right to foreclose.” DeGoyler v. Green Tree Serv., LLC, 662 S.E.2d
141, 147 (Ga. Ct. App. 2008) (quoting Brown v. Freedman, 474 S.E. 2d 73, 75
(Ga. Ct. App. 1996)).
Here, it is undisputed that Plaintiff defaulted on his loan obligations. Failure
to make the proper loan payments or tender the amount due defeats any claim for
wrongful foreclosure. See Harvey v. Deutsche Bank Nat’l Trust Co.,
No. 1:12-cv-1612, 2012 WL 3516477, at *2 (N.D. Ga. Aug. 14, 2012) (“When the
borrower cannot show that the alleged injury is attributable to the lender’s acts or
omissions, the borrower has no claim for wrongful foreclosure.”); Heritage Creek
Dev. Corp. v. Colonial Bank, 601 S.E. 2d 842 (Ga. Ct. App. 2004) (plaintiff’s
injury was “solely attributable to its own acts or omissions both before and after
the foreclosure” because it defaulted on the loan payments, failed to cure the
default, and did not bid on the property at the foreclosure sale). Plaintiff’s claim
for wrongful foreclosure is required to be dismissed for this additional reason.12, 13

12

To the extent Plaintiff argues that foreclosure was wrongful because the
NSUP did not identify Fannie Mae as the “investor” on Plaintiff’s loan and did not
identify the “secured creditor,” Georgia law requires only that a foreclosure notice
identify the individual or entity with the full authority to negotiate, amend, and
modify the terms of Plaintiff’s loan. See, e.g., O.C.G.A. § 44-14-162.2(a); You,
743 S.E.2d at 74-75.
13
To the extent Plaintiff also asserts that the completed dispossessory action
was wrongful and seeks to have the Writ of Possession overturned, the Court lacks
jurisdiction under the Rooker-Feldman doctrine to do so. Federal district courts
13

3.

Slander of Title

Under Georgia law, “[t]he owner of any estate in lands may bring an action
for libelous or slanderous words which falsely and maliciously impugn his title if
any damage accrues to him therefrom.” O.C.G.A. § 51-9-11. To support an action
for slander of title, a plaintiff must allege “the uttering and publishing of the
slanderous words; that they were false; that they were malicious; that he sustained
special damage thereby; and that he possessed an estate in the property slandered.”
Cornelius v. Bank of Am., N.A., No. 1:12-cv-0585-JEC, 2012 WL 4468746, at *4
(N.D. Ga. Sept. 27, 2012) (quoting Latson v. Boaz, 598 S.E.2d 485, 487 (Ga.
2004)). A plaintiff who asserts a claim of slander of title can “recover only such
special damages as he actually sustained as a consequence of the alleged wrongful
acts, and he is required to plead them plainly, fully, and distinctly.” Id.
Plaintiff asserts that the NSUP was “slanderous and fraudulent” because it
misrepresented that PNC had authority to foreclose on the Property. The Court has
already found that PNC, as the holder of the Security Deed, was entitled to
exercise the power of sale in the Security Deed. Plaintiff also has not asserted that
he suffered special damages as a result of the publication of any allegedly false
“generally lack jurisdiction to review a final state court decision.” Doe v. Fla.
Bar, 630 F.3d 1336, 1341 (11th Cir. 2011) (citing D.C. Court of Appeals v.
Feldman, 460 U.S. 462 (1983) & Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923)).
14

statements. Failure to adequately plead special damages defeats a claim for slander
of title. See Cornelius, 2012 WL 4468746, at *4 (dismissing slander of title claim
where plaintiff simply claimed millions of dollars in damages without further
explanation); Jackman v. Hasty, No. 1:10-cv-2485-RWS, 2011 WL 854878, at *6
(N.D. Ga. Mar. 8, 2011) (dismissing a slander of title claim for failure to allege
special damage); Harmon v. Cunard, 378 S.E.2d 351 (1989) (insufficient proof of
special damages where no specific figures were offered for the damage allegedly
suffered). This claim is required to be dismissed.
4.

Slander of Credit

Defendants argue that Plaintiff’s claim for slander of credit under Georgia
law must be dismissed because it is preempted by The Fair Credit Reporting Act,
15 U.S.C. § 1681 et seq. (“FCRA”). Plaintiff does not oppose, or otherwise
respond to, Defendants’ argument. In his Response, Plaintiff conclusorily asserts
that “[t]he cases cited by the Defendants on this issue are not applicable.” (Pl’s
Resp. [19.1] at 18).14 Failure to respond to an opposing party’s argument results in
abandonment of the claim. See Bute v. Schuller Int’l, Inc., 998 F. Supp. 1473,
1477 (N.D. Ga. 1998) (“Because plaintiff has failed to respond to this argument or
otherwise address this claim, the Court deems it abandoned.”); see also LR 7.1(B),
14

Plaintiff’s Response to McCalla’s Motion for Judgment on the Pleadings
does not address McCalla’s argument for dismissal of this claim.
15

NDGa (“Failure to file a response shall indicate that there is no opposition to the
motion.”). Plaintiff has abandoned his claim for slander of credit and this claim is
required to be dismissed.15

15

Even if he had not abandoned it, Plaintiff’s claim under Georgia law for
slander of credit must be dismissed because it is preempted by the FCRA. The
FCRA provides: “No requirement or prohibition may be imposed under the laws of
any State . . . with respect to any subject matter regulated under . . . section
1681s-2 of this title, relating to the responsibilities of persons who furnish
information to consumer reporting agencies . . . .” 15 U.S.C. § 1681t(b)(1)(F).
Section 1681s–2 prohibits furnishers from providing “any information relating to a
consumer to any consumer reporting agency if the person knows or has reasonable
cause to believe that the information is inaccurate.” 15 U.S.C. § 1681s–2. Plaintiff
asserts that Defendants “impaired the Plaintiff’s credit causing him to lose the
ability to have good credit” when they knowingly reported false information,
including that Plaintiff owed a debt to PNC. (Am. Compl. at 17-18). This conduct
falls within the provisions of Section 1681s-2 because it relates to Defendants’
responsibilities as furnishers of information to consumer reporting agencies. The
FCRA thus preempts Plaintiff’s slander of credit claim and this claim is required to
be dismissed for this additional reason. See, e.g., Howard v. DirecTV Group, Inc.,
No. CV 109–156, 2012 WL 1850922, at *7 (S.D. Ga. May 21, 2012) (state-law
defamation claim preempted by FCRA where plaintiff alleged that defendants
generated false, malicious and defamatory documents and submitted them to credit
reporting agencies); Horton v. HSBC Bank, No. 1:11-cv-3210, 2013 WL 2452273
(N.D. Ga. June 5, 2013) (Thrash, J. adopting Walker, M.J.) (amendment to
complaint denied as futile where FCRA preempted proposed state law claims;
claims arose from and were related to defendants’ alleged failure to properly report
information about plaintiff’s accounts to credit bureaus); cf. Gibson v. Decatur
Fed. Sav. & Loan Ass’n, 508 S.E.2d 788 (Ga. Ct. App. 1998) (FCRA preempted
borrowers’ state-law claim for libel based on bank’s allegedly false reporting to
credit agencies that they were delinquent on their mortgage).
16

5.

Infliction of Emotional Distress

Under Georgia law,
the burden which the plaintiff must meet in order to prevail [on a
claim for intentional infliction of emotional distress] is a stringent
one. To prevail, a plaintiff must demonstrate that: (1) the conduct
giving rise to the claim was intentional or reckless; (2) the conduct
was extreme and outrageous; (3) the conduct caused emotional
distress; and (4) the emotional distress was severe. The defendant’s
conduct must be so extreme in degree as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Whether a claim rises to the
requisite level of outrageousness and egregiousness to sustain a claim
for intentional infliction of emotional distress is a question of law.
Steed v. Fed. Nat’l Mortg. Corp., 689 S.E.2d 843, 851-852 (Ga. Ct. App. 2009)
(quoting Frank v. Fleet Fin. Inc. of Ga., 518 S.E.2d 717, 720 (Ga. Ct. App. 1999)).
Plaintiff alleges that “Defendants’ actions in illegal and wrongful foreclosure
upon [the Property] and dispossessing the Plaintiff, instituted [intentionally],
fraudulently and/or negligently,” caused Plaintiff “severe emotional distress.”
(Am. Compl. at 18). The crux of Plaintiff’s Amended Complaint is that
Defendants wrongfully foreclosed on the Property and instituted dispossessory
proceedings when they knew that PNC allegedly lacked standing to foreclose on
the Property because it was not the holder of the Note and Security Deed. This
simply is not the kind of action that rises to the level of extreme, outrageous,
atrocious or intolerable conduct required to support a claim for intentional

17

infliction of emotional distress. See, e.g., Frank, 518 S.E.2d at 720 (breach of
contract to re-sell property to homeowners following foreclosure sale and
institution of dispossessory proceedings not the kind of egregious conduct
necessary to support intentional infliction of emotional distress); Ingram v. JIK
Realty Co., 404 S.E.2d 802 (Ga. Ct. App. 1991) (affirming grant of summary
judgment on intentional infliction claim where defendant’s conduct consisted of
wrongfully foreclosing on plaintiff’s property); Thomas v. Ronald A. Edwards
Constr. Co., 293 S.E.2d 383 (1982) (filing a dispossessory warrant does not
constitute the kind of egregious conduct necessary to sustain a claim for intentional
infliction of emotional distress). Plaintiff fails to state a claim for infliction of
emotional distress and this claim is required to be dismissed.16
6.

Quiet Title

The purpose of Georgia’s Quiet Title Act of 1966 is “to create a procedure
for removing any cloud upon the title to land . . . and for readily and conclusively
16

To the extent Plaintiff asserts a claim for negligent infliction of emotional
distress, “[t]here is no independent tort in Georgia for negligent infliction of
emotional distress.” Holbrook v. Stansell, 562 S.E.2d 731, 732 (Ga. Ct. App.
2002) (citing Lee v. State Farm Mut. Ins. Co., 533 S.E.2d 82 (Ga. 2000)). While
“[a] plaintiff may recover damages for emotional distress based upon an injury to
property that results in pecuniary loss,” Plaintiff cannot state a claim for infliction
of emotional distress because, as the Court already found, the foreclosure sale was
not wrongful. See Nationwide Mut. Ins. Co. v. Lam, 546 S.E.2d 283, 284-85, 286
n.5 (Ga. Ct. App. 2001) (Pecuniary loss must result from a trespass, “an unlawful
interference with one’s person, property, or rights.”).
18

establishing that certain named persons are the owners of all the interests in land
. . . .” O.C.G.A. § 23-3-60. In an action for quiet title, “a plaintiff must assert that
he holds some current record title or current prescriptive title, in order to maintain
his suit.” Smith v. Georgia Kaolin Co., Inc., 498 S.E.2d 266, 267-68 (Ga. 1998).
Plaintiff cannot state a claim for quiet title to the Property because, having
found that the foreclosure sale was not wrongful, Plaintiff lacks any rights in the
Property. A valid foreclosure of a security deed vests legal title in the purchaser
and divests all of the grantor’s rights in the property. See, e.g., Cummings v.
Johnson, 129 S.E.2d 762 (Ga. 1963); Rhodes v. Anchor Rode Condo.
Homeowner’s Assn. Inc., 508 S.E.2d 648 (Ga. Ct. App. 1998).
Even if the Property had not been sold at foreclosure, Plaintiff’s claim for
quiet title must be dismissed because any right to legal title to the Property he has
is subordinate to PNC’s rights under the Security Deed. When he executed the
Security Deed, Plaintiff granted to National City Mortgage, and National City
Mortgage’s successors and assigns, legal title to the Property until the debt secured
by the Security Deed is paid in full. Plaintiff retained only the equitable right of
redemption and the right of possession. See O.C.G.A. § 14-44-60 (“[T]he
conveyance of real or personal property shall pass the title of the property to the
grantee until the debt or debts which the conveyance was made to secure shall be

19

fully paid . . . with the right reserved by the grantor to have the property
reconveyed to him upon the payment of the debt. . . .”); see also McCarter v.
Bankers Trust Co., 543 S.E.2d 755, 757 (Ga. Ct. App. 2000). Plaintiff does not
allege, and the record does not support, that the Security Deed is not valid or that
he satisfied his underlying loan obligations. Plaintiff therefore lacks current record
title or current prescriptive title to the Property, and his claim for quiet title is
required to be dismissed.17
7.

Fraud

In Georgia, plaintiffs alleging fraud must establish five (5) elements: “a false
representation by a defendant, scienter, intention to induce the plaintiff to act or
refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff.”
Baxter v. Fairfield Fin. Servs., 704 S.E.2d 423, 429 (Ga. Ct. App. 2010).
Rule 9(b) of the Federal Rules of Civil Procedure further requires plaintiffs
alleging fraud to “state with particularity the circumstances constituting fraud.”
Fed. R. Civ. P. 9(b). The Eleventh Circuit has consistently held:
To comply with Rule 9(b), a complaint must set forth: (1) precisely
what statements were made in what documents or oral representations
17

That the Deed Under Power and Special Warranty Deed were not recorded
within 90 days of the foreclosure sale, as required by O.C.G.A. § 44-14-160, does
not entitle Plaintiff to quiet title to the Property. Those documents do not affect the
validity of the Security Deed or the authority of PNC, as a result of the merger with
National City Mortgage, to exercise the power of sale in the Security Deed.
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or what omissions were made, and (2) the time and place of each such
statement and the person responsible for making (or, in the case of
omissions, not making) same, and (3) the content of such statements
and the manner in which they misled the plaintiff, and (4) what the
defendants obtained as a consequence of the fraud.
Thomas v. Pentagon Federal Credit Union, 393 F. App’x 635, 638 (11th Cir. 2010)
(mortgagor failed to allege facts with sufficient particularity to state fraud claim
against mortgagee where he did not identify any specific statements made by
mortgagee and failed to identify time and place of an omission, person responsible
for making an omission, and what mortgagee obtained as a consequence of fraud);
see also Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1237 (11th Cir. 2008).
Plaintiff alleges that Defendants falsely represented that Plaintiff owed a
debt to PNC and that PNC had the authority to foreclose on the Property. (Am.
Compl. at 20-21). Plaintiff asserts that Defendants made these misrepresentations
“to induce the Plaintiff to refrain from challenging the Defendants [sic] . . . alleged
rights in the [Property] or the ensuing foreclosure sale or dispossessory action.”
(Id. at 21).
Plaintiff does not allege any false statement made by Defendants or what
Defendants gained by allegedly making this statement. Plaintiff does not allege
that he is current on his loan and it is clear that PNC, as the holder of the Security
Deed and the servicer of Plaintiff’s loan, was entitled to receive Plaintiff’s

21

mortgage payments and foreclose on the Property in the event of Plaintiff’s default
on his loan obligations. Plaintiff does not allege any action he took, or refrained
from taking, in response to an allegedly false representation by Defendants.18
Plaintiff has not pled the five elements of fraud with the specificity required under
Rule 9 of the Federal Rules of Civil Procedure and Plaintiff otherwise fails to
allege facts sufficient to support a claim of fraud under Georgia law. Plaintiff’s
fraud claim is required to be dismissed.
8.

Whether McCalla Exceeded Its Authority

Plaintiff asserts that McCalla exceeded its authority by “prepar[ing] the
foreclosure deed and special warranty deed in favor of [Fannie Mae]” and
initiating dispossessory proceedings when McCalla knew that PNC lacked
authority to foreclose on the Property and that the foreclosure sale was wrongful.
(Am. Compl. at 23-24). It is clear that PNC, as the holder of the Security Deed,
was entitled to foreclose on the Property, and that Fannie Mae, as the purchaser of
the Property after foreclosure, was entitled to a writ of possession for the Property.
Because Plaintiff fails to state a claim for wrongful foreclosure or wrongful
dispossession, Plaintiff cannot state a claim against McCalla for exceeding its

18

Plaintiff fails also to show that he suffered damages because of his alleged
reliance, particularly because it appears Plaintiff had been living in the Property
without making any mortgage payments from at least June 2010 to March 2012.
22

authority by conducting the foreclosure sale on behalf of PNC and prosecuting the
dispossessory action on behalf of Fannie Mae. Plaintiff’s claim against McCalla
for exceeding its authority is required to be dismissed.
9.

Punitive Damages and Attorney’s Fees

Plaintiff is not entitled to an award of punitive damages because he failed to
state any claims upon which relief may be granted. See O.C.G.A. § 51-12-5.1(b);
Martin v. Martin, 600 S.E.2d 682, 683 (Ga. Ct. App. 2004) (“Punitive damages
cannot be awarded in the absence of any finding of compensatory damages.”).
Plaintiff also is not entitled to attorney’s fees and costs because he is not a
prevailing party and his claims have been dismissed. See O.C.G.A. § 13-6-11;
Amstead v. McFarland, 650 S.E.2d 737 (Ga. Ct. App. 2007) (attorney’s fees not
available where general damages not awarded); cf. Fed. R. Civ. P. 54.
11.

Injunctive Relief

A claim for preliminary injunctive relief requires a showing of “a
substantial likelihood of success on the merits of the underlying case,” Grizzle v.
Kemp, 634 F.3d 1314, 1320 (11th Cir. 2011), while a permanent injunction
requires actual success on the merits, United States v. Endotec, Inc., 563 F.3d
1187, 1194 (11th Cir. 2009). Because Plaintiff’s claims have been dismissed on

23

the merits, he cannot demonstrate likely or actual success on the merits, and his
claim for injunctive relief is required to be dismissed.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that McCalla Raymer, LLC’s Motion for

Judgment on the Pleadings [4] is GRANTED.
IT IS FURTHER ORDERED that Federal National Mortgage Corporation
and PNC Bank, N.A.’s Motion to Dismiss [10] is GRANTED.
IT IS FURTHER ORDERED that McCalla Raymer, LLC’s Motion to
Stay Discovery [5] and Plaintiff William A. Clark’s “Motion for Order Denying
Motions for Summary Judgment or Permitting Discovery” [16] are DENIED AS
MOOT.

SO ORDERED this 3rd day of February, 2014.

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