Thomas v. Bank of America, N.A.
Filing
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ORDER denying Plaintiff's 2 Motion for Temporary Restraining Order and Defendant's 3 Motion to Dismiss is GRANTED. Signed by Judge Richard W. Story on 9/30/2013. (cem)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
HUBERT THOMAS,
Plaintiff,
v.
BANK OF AMERICA, N.A.,
Defendant.
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CIVIL ACTION NO.
1:13-CV-2530-RWS
ORDER
This case is before the Court on Plaintiff’s Motion for Temporary
Restraining Order [2] and Defendant Bank of America, N.A.’s (“BANA”)
Motion to Dismiss [3]. After reviewing the record, the Court enters the
following Order.
Background1
Plaintiff initially filed his Complaint [1-1] and Motion for Temporary
Restraining Order [2] in the Superior Court of Dekalb County on July 1, 2013.
1
As this case is before the Court on a motion to dismiss, the Court accepts as
true all well-pleaded facts in the Complaint. Bryant v. Avado Brands, Inc., 187 F.3d
1271, 1273 n.1 (11th Cir. 1999).
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BANA timely removed the action to this Court under 28 U.S.C. §§ 1332, 1367,
1441, and 1446. (Notice of Removal, [1].)
This dispute involves property located at 115 Brook Hollow Drive,
McDonough, Georgia 30252 (“Property”). To purchase the Property, Plaintiff
took out a loan in the amount of $147,250.00. He contemporaneously executed
a security deed in favor of BANA to secure repayment of the loan (“Security
Deed”) [1-1]. At some point thereafter, Plaintiff fell behind on his mortgage
payments and began negotiating short sale options with BANA. During
negotiations, BANA instituted non-judicial foreclosure proceedings. Plaintiff
received notice from BANA’s attorney, Rubin Lublin, LLC, that a foreclosure
sale was scheduled for July 2, 2013. However, Plaintiff filed suit on July 1 and
the sale did not occur.
Plaintiff seeks to enjoin BANA from foreclosing on the Property and
requests damages for wrongful foreclosure. (Compl., [1-1]; Motion for
Temporary Restraining Order, [2]2.) BANA moves to dismiss under Federal
2
Plaintiff’s Motion for Temporary Restraining Order largely mirrors Plaintiff’s
prayer for equitable relief (Count I) in his Complaint.
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Rule of Civil Procedure (“Rule”) 12(b)(6). Plaintiff did not file a response to
BANA’s motion; therefore, it is deemed unopposed. N.D. Ga. L.R. 7.1(B).
Discussion
I.
Plaintiff’s Motion for Temporary Restraining Order
A temporary restraining order (“TRO”) is an “extraordinary and drastic
remedy.” Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir. 1985).
To obtain a TRO, a movant must demonstrate: (1) a substantial likelihood of
success on the merits of the underlying case, (2) the movant will suffer
irreparable harm in the absence of an injunction, (3) the harm suffered by the
movant in the absence of an injunction would exceed the harm suffered by the
opposing party if the injunction issued, and (4) an injunction would not disserve
the public interest. Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts,
Inc., 299 F.3d 1242, 1246-47 (11th Cir. 2002). For the reasons set forth in Part
II.B, infra, Plaintiff has failed to show a substantial likelihood of success on the
merits. Therefore, Plaintiff’s Motion for Temporary Restraining Order is
DENIED.
II.
BANA’s Motion to Dismiss
A.
Legal Standard
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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
allegations,” mere 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, 129 S. Ct. at 1949). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
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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.
“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.
B.
Analysis
1.
Claim for Equitable Relief (Count I)
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Plaintiff’s request for equitable relief appears to be based on two theories:
(1) insufficient notice under the terms of paragraph 22 of the Security Deed;
and (2) breach of an alleged obligation by BANA to negotiate a short sale with
Plaintiff instead of initiating non-judicial foreclosure proceedings. (Compl., [11] ¶¶ 5, 11, 15-16.) The Court agrees with BANA that these claims lack merit.
On February 15, 2013, Plaintiff and his wife received a Notice of Intent
to Accelerate and Foreclose from BANA. ([3-4] at 2 of 4.) The Notice
complies with the requirements of paragraph 22 of the Security Deed.
Specifically, it provides: (1) notice of Plaintiff’s default, (2) the action required
to cure default, (3) a date by which default must be cured, and (4) notice that
failure to cure will result in acceleration of the sum secured by the Security
Deed and sale of the Property. Additionally, after Plaintiff failed to cure, he
received a Notice of Acceleration and Foreclosure from BANA’s foreclosure
counsel, Rubin Lublin, LLC, which included a copy of the Notice of Sale Under
Power. ([1-1] at 32 of 43.) Therefore, Plaintiff’s claim that he was not given
proper notice under the terms of the Security Deed fails.
Second, despite Plaintiff’s claim to the contrary, BANA was under no
contractual or legal obligation to negotiate a short sale or a loan modification
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with Plaintiff. The Security Deed granted BANA the power of sale and BANA
rightfully initiated foreclosure proceedings after Plaintiff failed to cure his
default. ([3-2] at 4 of 19.) Therefore, Plaintiff has failed to state a plausible
claim for equitable relief and Count I is DISMISSED.
2. Claim for Damages based on Wrongful Foreclosure (Count II)
BANA argues that under Georgia law, Plaintiff’s wrongful foreclosure
claim is improper because the foreclosure sale has not yet occurred. (Def.’s
MTD Br., [3-1] at 5.) The Court agrees. See Edwards v. BAC Home Loan
Servicing, L.P., No. 1:11-CV-2465-RWS, 2012 WL 4327052, at * 1 (N.D. Ga.
Sept. 14, 2012) (“ . . . Plaintiffs may not state a claim for wrongful foreclosure
where no foreclosure sale has actually occurred.”). Therefore, Plaintiff’s claim
for damages based on wrongful foreclosure is DISMISSED.3
3
To the extent Count II may be construed as a claim for attempted wrongful
foreclosure, the Court agrees with BANA that Plaintiff has not pled sufficient facts to
support such a claim. See Aetna Finance Co. v. Culpepper, 320 S.E.2d 228, 232 (Ga.
Ct. App. 1984) (Plaintiff must show that the foreclosing party made “a knowing and
intentional publication of untrue and derogatory information concerning [his] financial
condition, and that damages were sustained as a direct result of this publication.”).
Here, there is no dispute that Plaintiff was several months in arrears on his mortgage
payments, so any publication regarding Plaintiff’s default was true.
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Conclusion
Based on the foregoing, Plaintiff’s Motion for Temporary Restraining
Order [2] is DENIED and Defendant’s Motion to Dismiss [3] is GRANTED.
SO ORDERED, this 30th day of September, 2013.
_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
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