Johnson v. MidFirst Bank
Filing
9
OPINION AND ORDER granting 4 Motion to Dismiss for Failure to State a Claim. Signed by Judge Clarence Cooper on 9/2/2014. (tcc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
NICHOLAS N. JOHNSON,
Plaintiff,
vs.
MIDFIRST BANK,
Defendant.
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CIVIL ACTION NO.
1:14-CV-0573-CC
OPINION AND ORDER
This matter is before the Court on MidFirst Bank’s Motion to Dismiss [Doc.
No. 4]. For the reasons that follow, the Court GRANTS the Motion to Dismiss.
I.
BACKGROUND
Plaintiff Nicholas N. Johnson (“Plaintiff”), who is proceeding in this action
pro se, is the owner of property located at 185 Wyndmont Way, Covington, Georgia
30016 (the “Property”). (Compl. ¶ 2.) On or around May 1, 2007, Plaintiff obtained
a loan in the amount of $249,925.001 from First Horizon Home Loan Corporation to
purchase the Property and executed a promissory note evidencing the same. (Id. ¶
4, Ex. A.) To secure the promissory note, Plaintiff conveyed the Property to
Mortgage Electronic Registration Systems, Inc. (“MERS”) as nominee for First
Horizon Home Loan Corporation by means of a security deed (the “Security Deed”).
(Id., Ex. A.) On October 19, 2009, and allegedly unbeknownst to Plaintiff, MERS
transferred and assigned the Security Deed to MidFirst Bank via an assignment. (Id.
¶ 5; MidFirst Bank’s Mot. to Dismiss, Ex. A.) MidFirst Bank is also the current
servicer of Plaintiff’s mortgage loan. (Compl. ¶ 5.)
Plaintiff began to experience financial difficulties and subsequently requested
that MidFirst Bank, as servicer of the mortgage loan, modify the loan. (Id. ¶¶ 6, 7.)
The current value of the Property, according to the Newton County Tax
Assessor, is $149,600.00. (Notice of Removal [Doc. No. 1], Ex. C.)
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Unable to reach a resolution with MidFirst Bank, Plaintiff alleges he then sent a
qualified written request to MidFirst seeking contact information for the secured
creditor of the mortgage loan, but MidFirst allegedly never seriously considered the
request and ignored the same. (Id. ¶¶ 8, 9.)
Now, according to Plaintiff, MidFirst Bank has been and is acting as the
secured creditor of his loan, has falsely and unlawfully called the loan into default,
and has begun to proceed with a wrongful attempted foreclosure. (Id. ¶¶ 9, 10, 13,
17.) Plaintiff alleges that MidFirst Bank is “a mere mortgage servicer,” which has
no assignment of the security deed, no right to call his loan into default, and no right
to initiate foreclosure proceedings under Georgia law. (Id. ¶¶ 13, 14, 15, 17.)
Plaintiff further alleges that he has no contractual obligation to pay MidFirst Bank
any money, although MidFirst Bank has demanded payment in full. (Id. ¶¶ 17, 18.)
Plaintiff states that Defendant’s actions have caused him “much unnecessary
harm and damage.” (Id. ¶ 12.) Specifically, Plaintiff alleges that he is losing all the
money that he put into his property, his credit has been destroyed, he has had to file
for bankruptcy, and he must expend additional funds looking for a new place to
live. (Id. at p. 7.)
Plaintiff brings causes of action in this lawsuit for wrongful attempted
foreclosure, violation of the Real Estate Settlement Procedures Act (“RESPA”),
intentional infliction of emotional distress, and punitive damages. MidFirst Bank
presently moves the Court pursuant to Federal Rule of Civil Procedure 12(b)(6) to
dismiss Plaintiff’s Complaint in its entirety.
II.
STANDARD OF REVIEW
A court may grant a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) if the complaint does not “contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). The
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complaint need not contain “detailed factual allegations,” but it must “give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Twombly, 550 U.S. at 555 (quotation and citation omitted). Something “more than
labels and conclusions, and a formulaic recitation of the elements of a cause of
action” is required. Id. at 555. Additionally, “the tenet that a court must accept as
true all of the allegations contained in a complaint is inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678 (citation omitted).
“Determining whether a complaint states a plausible claim for relief will . . .
be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. But where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has
alleged–but it has not ‘shown’–‘that the pleader is entitled to relief.’” Iqbal, 556 U.S.
at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (other citation omitted). Likewise, dismissal
is warranted under Rule 12(b)(6) if, assuming the truth of the factual allegations of
plaintiff’s complaint, there is a dispositive legal issue that precludes relief. Neitzke
v. Williams, 490 U.S. 319, 326, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989); Brown v.
Crawford County, 960 F.2d 1002, 1010 (11th Cir. 1992).
In addition to considering the properly-pleaded allegations of the complaint,
the court can consider “documents incorporated into the complaint by reference,
and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues
& Rights, Ltd., 551 U.S. 308, 322, 127 S. Ct. 2499, 168 L. Ed. 2d 179 (2007). Eleventh
Circuit law further provides as follows:
[W]here the plaintiff refers to certain documents in the complaint and
those documents are central to the plaintiff’s claim, then the Court may
consider the documents part of the pleadings for purposes of Rule
12(b)(6) dismissal, and the defendant’s attaching such documents to the
motion to dismiss will not require conversion of the motion into a
motion for summary judgment.
Brooks v. Clue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997)
(per curiam). The court’s “duty to accept the facts in the complaint as true does not
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require [the court] to ignore specific factual details of the pleading in favor of
general or conclusory allegations.” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 120506 (11th Cir. 2007).
“Indeed, when the exhibits contradict the general and
conclusory allegations of the pleading, the exhibits govern.” Id. at 1206 (citation
omitted).
III.
ANALYSIS
A.
Wrongful Attempted Foreclosure
To properly state a claim for wrongful attempted foreclosure under Georgia
law, the plaintiff must allege sufficient facts to state a plausible claim that the party
attempting to foreclose made “a knowing and intentional publication of untrue and
derogatory information concerning the debtor’s financial condition, and that
damages were sustained as a direct result of this publication.” Aetna Fin. Co. v.
Culpepper, 171 Ga. App. 315, 319, 320 S.E.2d 228 (1984) (citations omitted).
In this case, Plaintiff has not stated a plausible claim for wrongful attempted
foreclosure. Absent from the Complaint are sufficient factual allegations indicating
that MidFirst Bank made a knowing and intentional publication of untrue
information concerning Plaintiff’s financial condition.
Plaintiff attaches a
foreclosure notice to the Complaint, (Compl., Ex. C), but Plaintiff does not allege that
MidFirst Bank published this foreclosure notice to a third party. Plaintiff does
mention in a conclusory fashion that his credit has been destroyed, but there is no
allegation that MidFirst Bank reported negative information concerning Plaintiff’s
financial condition to any credit bureau.
Even if Plaintiff’s Complaint could be construed to allege that MidFirst Bank
published the foreclosure notice or otherwise published negative information
concerning Plaintiff’s financial condition, Plaintiff cannot plausibly claim that the
information is untrue. In this regard, while Plaintiff challenges MidFirst Bank’s
status as a secured creditor, Plaintiff does not dispute that he is behind on his
mortgage-related financial obligations. Indeed, Plaintiff alleges that MidFirst Bank
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has demanded payment in full but states he has no contractual obligation to pay
MidFirst Bank. (Compl. ¶¶ 17, 18.) Thus, despite his conclusory statements to the
contrary, Plaintiff has admitted that he is in default on his mortgage loan. Given his
defaulted status, Plaintiff cannot prevail on his wrongful attempted foreclosure
claim. See Alexander v. Bank of America, N.A., No. 2:13-CV-0067-RWS, 2014 WL
106349, at *5 (N.D. Ga. Jan. 10, 2014) (dismissing attempted wrongful foreclosure
claim where the plaintiff did not dispute his default on the underlying obligation but
simply disputed whether the defendant was the proper entity to call his loan into
default).
Further, to the extent Plaintiff argues that the untrue information in the
foreclosure notice is MidFirst Bank’s representation of itself as the secured creditor,
this argument fails. The Assignment of Security Deed that MidFirst Bank has
attached to its Motion to Dismiss establishes that MidFirst Bank is the rightful
holder of the Security Deed and has the contractual authority to foreclose on the
Property. As such, there can be no dispute as to the truth of MidFirst Bank’s
representation of itself as the secured creditor at the time that it presented the
foreclosure notice.
For all of the reasons stated above, Plaintiff’s claim for wrongful attempted
foreclosure is due to be dismissed.
B.
Intentional Infliction of Emotional Distress
To maintain a claim of intentional infliction of emotional distress under
Georgia law, a plaintiff must allege that (1) the defendant’s conduct was intentional
or reckless, (2) the conduct was extreme and outrageous, (3) there was a causal
connection between the wrongful conduct and the emotional distress, and (4) the
emotional distress suffered was severe. Bridges v. Winn-Dixie Atlanta, Inc., 176 Ga.
App. 227, 230, 335 S.E.2d 445 (1985). The standard for an intentional infliction of
emotional distress claim is very high, and the burden on the plaintiff is a stringent
one. Id. at 229. Whether a defendant’s conduct is extreme and outrageous is a
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question of law. Yarbray v. S. Bell Tel. & Tel. Co., 261 Ga. 703, 706, 409 S.E.2d 835
(1991).
In the instant case, the facts alleged do not indicate that MidFirst Bank
engaged in conduct that was either extreme or outrageous. Plaintiff’s claim for
intentional infliction of emotional distress is predicated on the same alleged facts
that purportedly supported the claim for wrongful attempted foreclosure. As the
Court determined above, however, MidFirst Bank lawfully attempted to collect on
the mortgage note and then lawfully attempted to institute foreclosure proceedings.
Since the claim for wrongful attempted foreclosure fails and MidFirst Bank did not
otherwise engage in conduct that was extreme or outrageous, Plaintiff’s claim for
intentional infliction of emotional distress also fails. See Mayrant v. Deutsche Bank
Trust Co. Americas, Civil Action No. 1:10-CV-3094-TWT, 2011 WL 1897674, at *3
(N.D. Ga. May 17, 2011) (finding no reckless, extreme, or outrageous conduct where
the defendant had exercised its contractual right to foreclose on the plaintiff’s
property pursuant to the power of sale in the security deed).
C.
RESPA
Plaintiff’s RESPA claim also is without merit. RESPA mandates that a loan
servicer respond to a borrower’s Qualified Written Request (“QWR”), if that request
meets certain requirements and seeks “information relating to the servicing of such
loan.” 12 U.S.C. § 2605(e). In order to state a claim for a violation of this section of
RESPA, a plaintiff must allege facts to support that: (1) the defendant is a loan
servicer; (2) the plaintiff sent the defendant a valid QWR; (3) the defendant failed to
adequately respond within the statutory period of 20 days or 60 days; and (4) the
plaintiff is entitled to actual or statutory damages. Tonea v. Bank of America, N.A.,
- - - F. Supp. 2d - - -, No. 1:13-CV-1435-WSD, 2014 WL 1092348, at *12 (N.D. Ga. Mar.
18, 2014)
Here, Plaintiff’s RESPA claim fails first because the letter Plaintiff sent to
MidFirst Bank does not qualify as a QWR under RESPA. The letter attached to
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Plaintiff’s Complaint seeks information regarding the identity of the secured creditor
and/or the secured creditor’s authorized agent. The information requested is
beyond information about the mere servicing of his loan and thus is not a proper
request.
Liggion
v.
Branch
Banking
and
Trust,
Civil
Action
No.
1:11–CV–1133–WSD, 2011 WL 3759832, at *3 (N.D. Ga. Aug. 24, 2011) (“Plaintiff’s
information document requests are not a proper qualified written request under
RESPA because they do not relate to the servicing of the loan.”). Because Plaintiff
does not allege that MidFirst Bank failed to respond to servicing-related requests,
the RESPA claim is due to be dismissed.
Plaintiff also fails to allege facts suggesting that he suffered actual damages
specifically stemming from MidFirst Bank’s alleged failure to respond to the QWR.
This failure is fatal to Plaintiff’s RESPA claim. See Dynott v. Nationstar Morg., LLC,
Civil Action No. 1:13-CV-1474-WSD, 2014 WL 1028886, at *19 (N.D. Ga. Mar. 17,
2014) (dismissing RESPA claim because plaintiff failed “to allege any facts that
would suggest that he suffered actual damages from Nationstar’s alleged failure to
respond to his QWR, in violation of 12 U.S.C. § 2605(e)”); Yates v. GMAC Mortg.
LLC, Civil Action No. 1:10–CV–2546–RWS, 2010 WL 5316550 at *4 (N.D. Ga. Dec. 17,
2010) (dismissing RESPA claim with prejudice because plaintiff failed to “articulate
any facts showing how Defendant’s failure to respond or inadequate response to the
RESPA requests resulted in any damages or the amount of such damages”); Sellers
v. Bank of America, N.A., Civil Action No. 1:11-CV-3955-RWS, 2012 WL 1853005, at
*8 (N.D. Ga. May 21, 2012) (dismissing RESPA claim because Plaintiffs failed to
allege entitlement to actual or statutory damages).
Accordingly, because Plaintiff has not alleged sufficient facts to state a
plausible claim for relief against MidFirst Bank for a violation of RESPA, this claim
must be dismissed.
D.
Punitive Damages
Because all of Plaintiff’s substantive claims lack merit, Plaintiff’s claim for
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punitive damages also is due to be dismissed. Duncan v. CitiMortgage, Inc., No.
1:13-CV-1493-TWT, 2014 WL 172228, at *14 (N.D. Ga. Jan. 15, 2014) (“Georgia courts
have consistently recognized that a claim for punitive damages is effective only if
there is a valid claim for actual damages to which it could attach, and that punitive
damages may not be recovered if the party’s substantive claims have failed.”); Dunn
v. BAC Home Loan Servs., L.P., No. 1:12-CV-1047-TWT, 2013 WL 1755808, at *4
(N.D. Ga. Apr. 23, 2013) (“The Plaintiffs’ claims for punitive damages and attorney
fees are derivative to their substantive claims and, therefore, should be dismissed
because of the failure of the substantive claims.”).
IV.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS MidFirst Bank’s Motion
to Dismiss [Doc. No. 4] and DISMISSES this action with prejudice.2
SO ORDERED this 2nd day of September, 2014.
s/ CLARENCE COOPER
CLARENCE COOPER
SENIOR UNITED STATES DISTRICT JUDGE
The Eleventh Circuit has held that a district court ordinarily must give a pro
se litigant at least one opportunity to amend before dismissing a complaint with prejudice.
Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991), overruled in part by Wagner v. Daewoo
Heavy Indus. Am. Corp., 314 F.3d 541 (11th Cir. 2002) (en banc) (overruling Bank with
respect to counseled complaints but not pro se complaints). Here, however, the facts that
Plaintiff has alleged in his Complaint, coupled with the documents that both Plaintiff and
Defendant have presented, convince the Court that any amendment to the Complaint
would be futile. In such circumstances, granting Plaintiff an opportunity to amend is not
required. Id.; see also Bettencourt v. Owens, 542 Fed. App’x 730, 2013 WL 5450978, at *4
(11th Cir. Oct. 2, 2013) (“A court must ... afford a plaintiff an opportunity to amend his pro
se complaint before dismissing with prejudice unless an amendment would be futile.”).
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