Funderburk v. Fannie Mae et al

Filing 14

ORDER AND OPINION granting in part and denying in part 11 Motion to Dismiss for Failure to State a Claim. Ordered by Judge Julie E. Carnes on 3/28/14. (ekb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
CHERISE FUNDERBURK,
Plaintiff,
CIVIL CASE NO.
v.

1:13-cv-01362-JEC

FANNIE
MAE,
a/k/a
Federal
National Mortgage Association and
BANK OF AMERICA,
Defendants.
ORDER & OPINION
This case is before the Court on defendants’ Motion to Dismiss
[11].

The Court has reviewed the record and the arguments of the

parties and, for the reasons that follow, concludes that defendants’
Motion to Dismiss [11] should be GRANTED IN PART AND DENIED IN PART.
BACKGROUND
This case arises out of an allegedly wrongful foreclosure.

On

May 8, 2002, plaintiff Cherise Funderburk executed a promissory note
in favor of America’s Wholesale Lender1 in order to purchase real
property identified as 2173 Cumberland Drive SE, Smyrna, GA 30080
(the “note”).

(Am. Compl. [8] at ¶ 5.)

The note was secured by a

security deed that plaintiff granted in favor of Mortgage Electronic

1

As discussed infra, America’s Wholesale Lender is the trade
name of Countrywide Home Loans, Inc.
(Br. in Support of Mot. to
Dismiss [11] at 2 n.2.)

AO 72A
(Rev.8/82)

Registration

Systems,

Inc.

(“MERS”)

as

nominee

for

America’s

Wholesale Lender, under which plaintiff pledged as collateral the
Cumberland

Drive

documents”).

property

(together

with

the

note,

the

“loan

(Id. at ¶ 5; Mot. to Dismiss [11] at Ex. A, at 2-4.)2

On April 29, 2009, MERS assigned the security deed executed by
plaintiff to BAC Home Loans Servicing, LP (“BAC”).
[11] at Ex. B.)

(Mot. to Dismiss

At some point, plaintiff defaulted on her loan.

Then, on May 1, 2012, BAC published and mailed plaintiff notice of
non-judicial foreclosure proceedings to be conducted on June 6, 2012.
(Am. Compl. [8] at ¶ 18.)

BAC conducted a foreclosure sale on that

date, at which Bank of America, N.A. (“Bank of America”) took title
to the Cumberland Drive property by deed under power.
22; Notice of Removal [1] at Ex. B.)

(Id. at ¶¶ 20,

Soon thereafter, Bank of

America conveyed the property to Fannie Mae.

(Am. Compl. [8] at ¶

22.)
Plaintiff filed a complaint against defendants in the Superior
Court of Cobb County, Georgia on March 22, 2013, alleging counts of
wrongful foreclosure, predatory lending, an acceleration notice

2

The Court may take judicial notice of public records not
attached to the complaint, including in this case the note, security
deed, and assignment contract, when considering a motion to dismiss.
Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1280 (11th Cir. 1999).
This does not convert the motion into one for summary judgment.
Universal Express, Inc. v. Sec. & Exch. Comm’n, 177 Fed. App’x 52, 53
(11th Cir. 2006).
2

AO 72A
(Rev.8/82)

violation, unjust enrichment, fraud, and civil conspiracy.
of Removal [1] at Ex. A, ¶¶ 17-67.)

(Notice

Defendants removed plaintiff’s

suit to this Court on April 25, 2013 on the basis of diversity
jurisdiction, 28 U.S.C. §§ 1332, 1446. (Id. at ¶¶ 9-17.) Defendants
then moved to dismiss plaintiff’s complaint, a motion the Court
denied as moot after plaintiff filed an amended complaint on July 8,
2013.

(Mot. to Dismiss [4]; Am. Compl. [8]; Order [9].)
Plaintiff’s

amended

complaint

asserts

claims

for

wrongful

foreclosure, two counts of fraud, and violations of the Truth in
Lending Act (“TILA”) and Regulation Z.

(Am. Compl. [8] at ¶¶ 4-63);

15 U.S.C. §§ 1601 et seq.; 12 C.F.R. §§ 226.1 et seq.

Defendants

filed a motion to dismiss plaintiff’s amended complaint on August 21,
2013, to which the Court now turns.

(Mot. to Dismiss [11].)

DISCUSSION
I.

JURISDICTION
Defendants removed plaintiff’s action to this Court on the basis

of diversity jurisdiction.
U.S.C. §§ 1332, 1446.

(Notice of Removal [1] at ¶¶ 9-17); 28

Complete diversity exists here, as plaintiff

is a citizen of Georgia, Fannie Mae is a citizen of the District of
Columbia, and Bank of America is a citizen of North Carolina.

(Am.

Compl. [8] at ¶¶ 1-2; Notice of Removal [1] at ¶¶ 11-12.)
With respect to the amount in controversy, the complaint that
defendants removed did not identify a sum certain that plaintiff
3

AO 72A
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sought to recover.

(See Notice of Removal [1] at ¶¶ 14-17.)

In such

a circumstance, the Court looks to the notice of removal to determine
the amount in controversy.

Williams v. Best Buy Co., Inc., 269 F.3d

1316, 1319 (11th Cir. 2001).

The notice of removal here indicates

that the note plaintiff executed in favor of America’s Wholesale
Lender was for the principal sum of $227,500.00, and Bank of America
paid $214,261.87 for the Cumberland Drive property at the foreclosure
sale.

(Notice of Removal [1] at ¶ 14, Ex. B; Mot. to Dismiss [4] at

Ex. B; Mot. to Dismiss [11] at Ex. A, at 3.)

Thus, the amount in

controversy in plaintiff’s suit meets the $75,000 threshold and the
Court may properly exercise subject matter jurisdiction.

28 U.S.C.

§ 1332; see Waller v. Prof’l Ins. Corp., 296 F.2d 545, 547-48 (5th
Cir. 1961); Foster v. Bank of Am., N.A., Civil Action No. 1:12-CV04372-RWS, 2013 WL 1963810, *2 (N.D. Ga. May 9, 2013)(Story, J.); and
Reynolds v. JPMorgan Chase Bank N.A., Civil Action No. 5:11-CV-311
(MTT), 2011 WL 5835925, *2 (M.D. Ga. Nov. 21, 2011)(Treadwell, J.)
(“First,

the

security

deed

meets

the

amount-in-controversy

requirement.”).
II.

DEFENDANTS’ MOTION TO DISMISS
A.

Standard For A Motion To Dismiss

In deciding a motion to dismiss under Federal Rule 12(b)(6), the
Court assumes that all of the allegations in the complaint are true
and construes all of the facts in favor of the plaintiff.
4

AO 72A
(Rev.8/82)

Randall v.

Scott, 610 F.3d 701, 705 (11th Cir. 2010).

That said, in order to

survive a motion to dismiss, a complaint “must contain sufficient
factual matter, accepted as true, to ‘state a claim [for] relief that
is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A claim is “facial[ly] plausib[le]” when it is supported with facts
that “allow[] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Id.

Courts will

“eliminate any allegations in the complaint that are merely legal
conclusions.” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290
(11th Cir. 2010). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
B.

Plaintiff Fails To Sufficiently Allege A Plausible Claim Of
Wrongful Foreclosure

Plaintiff’s first cause of action is for wrongful foreclosure.
At the outset, the Court notes that plaintiff makes certain arguments
which can be rejected out of hand.

First, no matter its merit,

plaintiff is unable to receive equitable relief for her wrongful
foreclosure claim because she has not alleged that she paid or
tendered the amount outstanding on her loan or otherwise cured her
default.

(Am. Compl. [8] at 9, 14, 17; Resp. [12] at 21-22); Hill v.

Filsoof, 274 Ga. App. 474, 475-76 (2005); Taylor, Bean & Whitaker
5

AO 72A
(Rev.8/82)

Mortg. Corp. v. Brown, 276 Ga. 848, 849-51 (2003).
Second,

in

her

response

plaintiff

argues

that,

when

a

foreclosing entity that does not possess the ability to discharge her
debt, it “create[s] a degree of uncertainty as to [her] remaining
liability” for which she is entitled to relief.
14.)

(Resp. [12] at 12-

This argument fails in light of You v. JP Morgan Chase Bank,

N.A., wherein the Supreme Court of Georgia definitively held that an
entity need not hold both the note and security deed or otherwise
possess a beneficial interest in the debt to be able to pursue
foreclosure proceedings.

293 Ga. 67, 74 (2013).

Finally, on a related note, plaintiff claims that sections of
the Georgia code dictate that when one of a note or security deed are
transferred, the other instrument is necessarily transferred with it.
(Resp. [12] at 18-19 (citing O.C.G.A. §§ 10-3-1, 44-14-326, 44-1464(b).)

Plaintiff argues that, by failing to mention the note she

executed in favor of America’s Wholesale Lending, the security deed
she granted to MERS also transferred to it the note evidencing her
indebtedness.

(Id. at 19.)

Notwithstanding that the security deed

does explicitly mention the note plaintiff executed in favor of
America’s Wholesale Lender, plaintiff’s position is an incorrect
interpretation of Georgia law, which permits splitting a note and
security deed and which grants the holder of a security deed an
equitable interest in the note, but not the note itself.
6

AO 72A
(Rev.8/82)

(Mot. to

Dismiss [11] at Ex. A, at 3); see You, 293 Ga. at 69-74 and Larose v.
Bank of Am., N.A., 321 Ga. App. 465, 466-67 (2013).
The other allegations plaintiff makes in support of her wrongful
foreclosure count, though requiring more analysis, also fail to
plausibly state a claim for relief.

The heart of plaintiff’s

wrongful foreclosure count is her argument that the assignment of the
security

deed

from

MERS

to

BAC

was

void,

an

affirmative

misrepresentation of facts, a forgery, “a nullity[,] and ineffective
in conveying any interest in the property to [BAC].” (Am. Compl. [8]
at ¶¶ 15-17; Resp. [12] at 5-11.)

But under Georgia law, plaintiff

does not have standing to challenge the assignment.

Indeed, courts

in Georgia have “repeatedly rejected the argument that a homeowner
has standing to challenge the assignment of a security deed which
grants the assignor a power of sale.”

Moore v. McCalla Raymer, LLC,

916 F. Supp. 2d 1332, 1343-44 (N.D. Ga. 2013)(quoting Peterson v.
Merscorp Holdings, Inc., Civil Action No. 1:12-cv-00014-JEC, 2012 WL
3961211, *10 (N.D. Ga. Sept. 10, 2012)(Carnes, C.J.) and collecting
cases).
Plaintiff argues that she is not challenging the assignment, but
is

rather

challenging

BAC’s

ability

to

conduct

foreclosure

proceedings, as it “did not possess any rights or authority under
either her Promissory Note or Security Deed . . . because it received
its Assignment from an entity which did not own or have any rights
7

AO 72A
(Rev.8/82)

under the Instruments.”

(Resp. [12] at 6.)

Further, plaintiff

states that she “is not claiming that the purported Assignment . . .
was somehow technically deficient or flawed as a matter of law and
thus voidable or even void.

She is contending that it never took

place as a matter of fact; that it is a nullity without legal force.”
(Id. at 7.)
This position is founded almost entirely upon the theory that
MERS derived its authority to assign the security deed from America’s
Wholesale

Lending,

company” in 2008.

which,

plaintiff

claims,

became

a

“defunct

When America’s Wholesale Lending ceased to exist,

the argument goes, so did all of MERS’s authority to transfer the
deed.

(Am. Compl. [8] at ¶¶ 12-15; Resp. [12] at 6-10.)

But

plaintiff cites no authority for this claim, nor can the Court find
any.

See Handfield v. Wells Fargo Bank, N.A., Civil Action No. 1:12-

CV-01080-RWS-LTW, 2013 WL 1501942, *5-6 (N.D. Ga. Jan. 23, 2013)
(Walker,

Mag.

J.),

adopted

2013

WL

1501940

(N.D.

Ga.

Mar.

6,

2013)(Story, J.).3

3

See also, e.g., Davis v. Countrywide Home Loans, Inc., ___ F.
Supp. 2d ___, Civil Action No. H-13-623, 2014 WL 838146, *3 n.5 (N.D.
Tex. Mar. 3, 2014)(Miller, J.) and Ghuman v. Wells Fargo Bank, N.A.,
No. 1:12-CV-00902-AWI-BAM, 2013 WL 552097, *6 (E.D. Cal. Feb. 13,
2013)(Ishii, J.); but see Joy v. MERSCORP, Inc., 935 F. Supp. 2d 848,
857-59 (E.D.N.C. 2013)(finding that allegations of assignment from
defunct company stated claim under Fair Debt Collection Practices
Act, not because of the alleged invalidity of the assignment, but
because of the alleged misrepresentations made about the foreclosure
notice).
8

AO 72A
(Rev.8/82)

The argument that plaintiff is attacking the ability of MERS to
assign the loan documents without actually attacking the assignment
itself is a difference in form but not substance, and cannot save her
claim.

Plaintiff is not an intended beneficiary of the assignment

from MERS to BAC, nor does she claim to be.

Accordingly, plaintiff

lacks standing to challenge that assignment contract.

Montgomery v.

Bank of Am., 321 Ga. App. 343, 346 (2013).
Next, plaintiff offers the argument that MERS was technically a
trustee for America’s Wholesale Lender since it held legal title for
it under the security deed. Plaintiff claims that this was improper,
as MERS is not an entity capable of acting as a fiduciary under
O.C.G.A. § 7-1–242(a).
17.)

(Am. Compl. [8] at ¶ 11; Resp. [12] at 14-

This argument has been tried and rejected by Georgia courts

before, and plaintiff does not proffer any reason for holding
differently in the present case.

See

Carr v. U.S. Bank, N.A., Civil

Action No. 1:11-CV-02781-RLV, at Order [Dkt. No. 27] at 8-9 (N.D. Ga.
Apr. 20, 2012)(Vining, J.) and Metellus v. Bank of Am., N.A., Civil
Action File No. 1:12-CV-01947-CC-GGB, 2012 WL 7763041, *3 (N.D. Ga.

In any case, this discussion is theoretical, as the reference to
“America’s Wholesale Lender” in the note refers to the trade name of
Countrywide Home Loans, which did not go defunct but rather operates
as a subsidiary of Bank of America after being acquired in 2008, and
not the independent corporation of the same name, which does appear
to have ceased operations. See Countrywide Home Loans, Inc. v. Am.’s
Wholesale Lender, Inc., No. SACV 12-00242-CJC (ANx), 2014 WL 545841
(C.D. Cal. Feb. 7, 2014)(Carney, J.).
9

AO 72A
(Rev.8/82)

Nov. 2, 2012)(Brill, Mag. J.)(collecting cases), adopted 2013 WL
1129399 (N.D. Ga. Mar. 19, 2013)(Cooper, J.).
Plaintiff finally claims that defendants did not conduct the
foreclosure sale in good faith as Georgia law requires, but rather
did so unfairly, in bad faith, and with deceptive and fraudulent
practices.

(Am. Compl. [8] at ¶¶ 24-28.)

Lacking any detail of

specific wrongful conduct, these allegations too fail to establish a
plausible wrongful foreclosure claim.

See Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 570 (a claim is plausible when it is
supported with facts that “allow[] the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged”)).
It is clear from the face of the security deed that MERS
possessed the authority to assign the deed to another entity, which
it permissibly did when it made the assignment to BAC.

(Mot. to

Dismiss [11] at Ex. A, at 3-4); see LaCosta v. McCalla Raymer, LLC,
Civil Action No. 1:10-CV-1171-RWS, 2011 WL 166902, *3 (N.D. Ga. Jan.
18, 2011)(Story, J.). BAC, therefore, lawfully possessed plaintiff’s
security

deed

and

the

unequivocal

authority

to

foreclose

upon

plaintiff’s property that it contained. (Contra Am. Compl. [8] at ¶¶
19-21.)

To the extent that plaintiff claims that BAC must have a

beneficial

interest

in

plaintiff’s

proceedings, You instructs otherwise.

loan

to

conduct

foreclosure

(Id.); You, 293 Ga. at 74.

Thus, plaintiff’s complaint fails to state a plausible claim for
10

AO 72A
(Rev.8/82)

wrongful foreclosure.
C.

Plaintiff’s Allegations Pertaining To MERS’s Status As
Grantee-As-Nominee Fail To Plausibly State A Claim For
Fraud Or Wrongful Foreclosure

Plaintiff makes a number of arguments regarding MERS’s status
under the security deed as grantee-as-nominee of America’s Wholesale
Lender, which she uses to support her count of wrongful foreclosure
and first count of fraud.

Plaintiff argues that because of its dual

status, MERS is both an agent and principal, the security deed is
ambiguous, and MERS materially misrepresented its role and authority
with regards to the security deed--none of which the Court finds
convincing.

(Am. Compl. [8] at ¶¶ 6, 9-10, 29-44; Resp. [12] at 17-

20.)
Most of plaintiff’s arguments about MERS’s grantee-as-nominee
status are taken--in some instances verbatim--from Culhane v. Aurora
Loan Servs. of Neb., 826 F. Supp. 2d 352 (D. Mass. 2011).

Other than

the reasoning being dicta in that opinion, which, despite “giv[ing]
the MERS system its most searching inquiry,” ultimately granted
summary judgment to the foreclosing entity, Culhane is not binding
upon this Court.

Culhane, 826 F. Supp. 2d at 378-79.

Nor does it

persuade that the Court should deviate from the numerous opinions of
Georgia courts applying Georgia law that hold that MERS’s status as
grantee-as-nominee did not dispossess it of the authority to transfer
loan documents or exercise the powers contained with them.
11

AO 72A
(Rev.8/82)

See,

e.g., Morgan v. Ocwen Loan Serv., LLC, 795 F. Supp. 2d 1370, 1375
(N.D. Ga. 2011)(stating that the argument that a deed is void because
MERS is named as the “grantee-as-nominee” is “unsupported by Georgia
law.”) and Larose, 321 Ga. App. at 467-68.

As a consequence, MERS’s

dual status does not save plaintiff’s wrongful foreclosure claim.
MERS’s status also does not support plaintiff’s first fraud
count.

There, plaintiff alleges that MERS inserted itself into the

security deed, and despite “affirmatively represent[ing] to Plaintiff
that it was contractually prohibited from and had no independent
right to assign, foreclose, aid in foreclosing, or to do any act with
respect to exercising any rights under Plaintiff’s promissory note or
security deed on its own”, did indeed assign the note and security
deed to BAC.

(Am. Compl. [8] at ¶¶ 31-35.)

Besides rehashing her

failed status claim, plaintiff’s allegations of fraud fail to state
a claim for relief because they lack particularity.

FED. R. CIV. P.

9(b); Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir.
2001).
The particularity requirement “serves an important purpose in
fraud actions by alerting defendants to the ‘precise misconduct with
which they are charged’ and protecting defendants ‘against spurious
charges of immoral and fraudulent behavior.’” Id. (quoting Durham v.
Bus. Mgmt. Assocs., 847 F.2d 1505, 1511 (11th Cir. 1988)).
plaintiff has not provided defendants with these details.
12

AO 72A
(Rev.8/82)

Here

Rather,

she has simply pled conclusory allegations about the nature of the
security deed and the days upon which it and the assignment contract
were executed.

Plaintiff has not provided anything that cannot be

gleaned from the face of the contracts at issue, other than her
allegation

that

MERS

represented

that

“it

was

contractually

prohibited” from foreclosing upon her property or assigning the
security

deed,

security deed.
A, at 3-4.)

which

directly

contradicts

the

language

of

the

(Am. Compl. [8] at ¶ 33; Mot. to Dismiss [11] at Ex.

True, plaintiff need not prove her fraud claim in her

pleading and the Court must read Rule 9(b) in conjunction with Rule
8, but even given these considerations plaintiff has not pled
sufficient allegations to support her fraud claim.

See Hill v.

Morehouse Med. Assocs., Inc., No. 02-14429, 2003 WL 22019936, *3
(11th Cir. 2003)(per curiam)(describing the pleading requirements for
fraud).
Plaintiff’s fraud claim fails for the additional reason that it
is barred by the statute of limitations.

If MERS did indeed make the

representations that plaintiff alleges, she would have been made
aware of the fraud on May 8, 2002 when she executed the security
deed.

This

is

so

because

MERS’s

alleged

contradict the deed’s language, as noted above.

statements

directly

Nash v. Ohio Nat’l

Life Ins. Co., 266 Ga. App. 416, 417-18 (2004)(stating that the
statute of limitations for a fraud claim is four years, which is
13

AO 72A
(Rev.8/82)

subject to equitable tolling).

Thus, plaintiff’s complaint fails to

state a claim for either wrongful foreclosure or fraud with regards
to MERS’s status as grantee-as-nominee and its representations about
its role and authority under the security deed.
D.

Plaintiff Fails To Sufficiently Allege A TILA Violation

The final cause of action alleged in plaintiff’s complaint is a
TILA violation.

(Am. Compl. [8] at ¶¶ 57-63.)

Specifically,

plaintiff claims that BAC violated 15 U.S.C. § 1641(g) and its
implementing regulation, 12 C.F.R. § 262.39, by failing to provide
her notice within thirty days of becoming a secured creditor, and
that it could not legally conduct a foreclosure sale in Georgia as a
result.

(See id. at ¶¶ 59-60 and Resp. [12] at 28-31); 15 U.S.C. §

1641(g)(2009)(requiring new owners or assignees of a debt to provide
notice to the borrower within thirty days); 12 C.F.R. § 226.39
(2011)(establishing disclosure requirements).
Again, this claim is untimely.

The assignment of plaintiff’s

loan documents from MERS to BAC occurred on April 29, 2009, but §
1641(g) was not enacted until May 20, 2009.

Prevent Mortgage

Foreclosures and Enhance Mortgage Credit Availability, Sec. 404, PL
111-22, 123 Stat. 1632 (May 20, 2009); Truth in Lending, 74 Fed. Reg.
60143-01 (Nov. 20, 2009)(codified at 12 C.F.R. pt. 226); (Am. Compl.
[8] at ¶ 13; Resp. [12] at 3, 28; Mot. to Dismiss [11] at Ex. B).
Since § 1641(g) has no retroactive application, it does not impose
14

AO 72A
(Rev.8/82)

disclosure obligations upon BAC with respect to the assignment from
MERS.

See

AT&T

Corp.

V.

Hulteen,

556

U.S.

701,

712-13

(2009)(describing presumption against retroactivity); Landgraf v. USI
Film Prods., 511 U.S. 244, 265-80 (1994)(same); Jara v. Aurora Loan
Servs., 852 F. Supp. 2d 1204, 1208-09 n.6 (N.D. Cal. 2012); and
Angelini v. Bank of Am., Civil No. 11-3011-CL, 2011 WL 2433485, *5
(D. Or. Apr. 27, 2011)(Clarke, Mag. J.).

Thus, plaintiff has failed

to plead a plausible claim for relief under TILA.

Accordingly, the

Court GRANTS IN PART defendants’ Motion to Dismiss [11] with respect
to plaintiff’s claims of wrongful foreclosure, fraud with respect to
MERS, and a TILA violation.
E.

Plaintiff’s Second Allegations Of Fraud Are More Accurately
Characterized As A Claim Of Promissory Estoppel, For Which
Plaintiff Has Pled Sufficient Allegations

Plaintiff asserts a second count of fraud in her complaint,
which is based upon the alleged misrepresentations of BAC.
Compl. [8] at ¶¶ 45-56.)

(Am.

Plaintiff claims that BAC “guaranteed that

Plaintiff’s mortgage would be modified if she paid a lump sum of
$17,000.00 on her account”, that she made such a payment, but that
BAC denied her modification and conducted foreclosure proceedings
instead.

(Id. at ¶¶ 46-48.)

Further, plaintiff alleges that BAC

knew that its statements regarding a loan modification were false,
that it made them with the “intent and purpose of deceiving [her]”,
and that she reasonably relied upon those representations.
15

AO 72A
(Rev.8/82)

(Id. at

¶¶ 49-52.) Because BAC was an agent for defendants, plaintiff claims
that they are liable for its conduct.

(Am. Compl. [8] at ¶ 53.)

As stating a claim for fraud, plaintiff’s second count fails for
the same reason as does her first: she has not pled it with
particularity.

Plaintiff provides superficial details about the

statements made by BAC and the months in which they were made, but
more specificity is required when claiming fraud. (Id. at ¶¶ 46, 4950.)

Plaintiff has not provided who made the statements, what the

content was, or the specific date upon which they were made.
However, plaintiff’s allegations do plausibly state a claim of
promissory estoppel.

To establish a claim of promissory estoppel

under Georgia law, plaintiff must show (1) that BAC made a promise;
(2) that BAC should have expected plaintiff would rely upon that
promise; (3) that plaintiff actually did rely upon that promise; (4)
and that injustice can be avoided only by enforcement of the promise.
O.C.G.A. § 13-3-44(a); DPLM, Ltd. v. J.H. Harvey Co., 241 Ga. App.
219,

220-21

(1999).

If

the

above

allegations

plausibly support a claim for promissory estoppel.

are

true,

they

See Benjamin v.

BAC Home Loans Serv., LP, No. CV 211-101, 2012 WL 1067999, *5-6 (S.D.
Ga. Mar. 29, 2012)(Wood, C.J.); contra Miller v. Chase Home Fin.,
LLC, 677 F.3d 1113, 1117 (11th Cir. 2012)(affirming denial of
promissory estoppel claim because plaintiff did not allege that Chase
promised to permanently modify the loan).
16

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(Rev.8/82)

Georgia law recognizes promissory estoppel as an exception to
the statute of frauds, so defendants’ argument on that point does not
require plaintiff’s claim be dismissed.

(See, e.g., Br. in Support

of Mot. to Dismiss [11] at 18); Hemispherx Biopharma, Inc. v. Mid-S.
Capital, Inc., 690 F.3d 1216, 1229-30 (11th Cir. 2012); SKB Indus.,
Inc. v. Insite, 250 Ga. App. 574, 577-78 (2001); but see Johnson v.
Univ.

Health

Servs.,

Inc.,

161

F.3d

1334,

1340-41

(11th

Cir.

1998)(reliance on unwritten promise not reasonable when it offered “a
complex, multi-faceted aid package worth over $1 million”).
F.

Plaintiff’s Claims For Fees, Costs, And Punitive Damages
Survive

Because plaintiff has pled allegations sufficient to support a
plausible claim for relief, her requests for attorneys’ fees, costs,
and punitive damages survive defendants’ Motion to Dismiss.

(Am.

Compl. [8] at 17, ¶ 54); Racette v. Bank of Am., N.A., 318 Ga. App.
171, 181 (2012).
Motion

to

Accordingly, the Court DENIES IN PART defendant’s

Dismiss

[11]

with

respect

to

plaintiff’s

promissory

estoppel claim and requests for attorneys’ fees, costs, and punitive
damages.
CONCLUSION
For the foregoing reasons, defendants’ Motion to Dismiss [11] is
GRANTED IN PART AND DENIED IN PART.

17

AO 72A
(Rev.8/82)

SO ORDERED, this 28th day of March, 2014.

/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE

18

AO 72A
(Rev.8/82)