Winston v. 360 Mortgage Group, LLC
Filing
6
OPINION AND ORDER granting Defendant 350 Mortgage Group, LLC's Motion to Dismiss 4 and denying Plaintiff Darryl Winston's Petition for TRO 2 . Signed by Judge William S. Duffey, Jr on 10/2/17. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DARRYL WINSTON,
Plaintiff,
v.
1:17-cv-1186-WSD
360 MORTGAGE GROUP, LLC,
Defendant.
OPINION AND ORDER
This matter is before the Court on Defendant 350 Mortgage Group, LLC’s
(“Defendant” or “360 Mortgage”) Motion to Dismiss [4] (“Motion”) Plaintiff
Darryl Winston’s (“Plaintiff” or “Winston”) Complaint [1.1]. Plaintiff failed to
respond to Defendant’s Motion, and it is deemed unopposed. See LR 7.1B, NDGa.
Also before the Court is Plaintiff’s “Ex Parte Verified Petition for Temporary
Restraining Order” [2] (“Motion for TRO”).
I.
BACKGROUND
On December 17, 2014, Plaintiff obtained a loan in the amount of $369,000
from Defendant. (Compl. at 2). Repayment of the loan was secured by a deed
(“Security Deed”) to real property located at 1356 Churchill Way, Marietta,
Georgia (the “Property”). (Id.). Plaintiff executed the Security Deed in favor of
Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for
Defendant and Defendant’s successors and assigns. (Id.). Under the terms of the
Security Deed, Plaintiff “grant[ed] and convey[ed] to MERS . . . and the successors
and assigns of MERS with power of sale, [the Property].” (Security Deed, Cobb
County Deed Book 15208, Page 1521-1540, at 2).1
In June 2015, Plaintiff “became delinquent in his . . . monthly mortgage
payments” and sought “loss mitigation assistance.” (Pet. for TRO [2] at 3).
On August 25, 2015, MERS assigned the Security Deed to Defendant.
(Compl. at 3; see also Cobb County Deed Book 15275, Page 5919).
On March 3, 2017, Defendant “advertised the notice of sale under power of
Plaintiff’s [P]roperty on April 4, 2017, as a result of Plaintiff’s alleged default on
the loan secured by the [P]roperty.” (Id. at 3). Plaintiff claims that the “notice did
not identify who was the holder of the Security Deed and identified [Defendant] as
the loan servicer.” (Id.). Plaintiff asserts that “Defendant continues to hold itself
1
See https://research.cobbsuperiorcourtclerk.com/Results. The Security Deed
and the Assignment were filed and recorded by the Clerk of Court for the Superior
Court of Cobb County. These documents are a matter of public record and the
Court may consider them. See 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); Bryant v. Avado
Brands, Inc., 187 F.3d 1271, 1276-1278 (11th Cir. 1999) (court may take judicial
notice of official public records and may base its decision on a motion to dismiss
on the information in those records).
2
out as the holder of the note and the security deed while claiming to be the servicer
of the loan. . . . Defendant cannot show they are a real party of [sic] interest to
foreclose or enforce the negotiable instrument as they are the servicer.” (Id. at 4).
On March 14, 2017, Plaintiff, proceeding pro se, filed in the Superior Court
of Cobb County, Georgia, his Complaint, asserting claims for fraudulent
conversion (Count I), mortgage servicing fraud (Count II), “declaratory judgment
(credit default swap)” (Count III), “unfair and/or deceptive business practices”
(Count IV), “fraud and/or attempted fraud” (Count V), and intentional infliction of
emotional distress (Count VI).
On March 31, 2017, Plaintiff filed his Motion for TRO, seeking to enjoin the
April 4, 2017, foreclosure sale.
On April 3, 2017, Defendant removed the Cobb County Action to this Court
on the basis of diversity of citizenship. (Notice of Removal [1]).2
2
Defendant also asserts that the Court has federal question jurisdiction
because Plaintiff, in his Complaint, references the Truth in Lending Act, Real
Estate Settlement Procedures Act, and the Fair Debt Collection Practices Act.
Because it is clear that the Court has subject matter jurisdiction based on diversity
of citizenship, the Court need not determine whether Plaintiff’s Complaint raises
issues of federal law sufficient to support federal question jurisdiction.
3
On August 7, 2017, Defendant moved to dismiss Plaintiff’s Complaint for
failure to state a claim.3 Plaintiff did not respond to Defendant’s Motion, and it is
deemed unopposed.
II.
DISCUSSION
A.
Legal Standard
Dismissal of a complaint, pursuant to Rule 12(b)(6), is appropriate “when,
on the basis of a dispositive issue of law, no construction of the factual allegations
will support the cause of action.” Marshall Cnty. Bd. of Educ. v. Marshall Cnty.
Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993). In considering a motion to
dismiss, the Court accepts the plaintiff’s allegations as true and considers the
allegations in the complaint in the light most favorable to the plaintiff. See
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Watts v. Fla. Int’l Univ.,
495 F.3d 1289, 1295 (11th Cir. 2007); see also Bryant v. Avado Brands, Inc.,
187 F.3d 1271, 1273 n.1 (11th Cir. 1999). The Court is not required to accept a
plaintiff’s legal conclusions as true. See Sinaltrainal v. Coca-Cola Co., 578 F.3d
3
On April 3, 2017, Plaintiff, represented by counsel, filed a petition for relief
under Chapter 13 of the United States Bankruptcy Code. In re Winston,
No. 17-56232 (Bankr. N.D. Ga. Apr. 3, 2017). On August 18, 2017, the
Bankruptcy Court entered an order lifting the automatic bankruptcy stay “for the
limited purpose of permitting the parties to continue the litigation pending in the
District Court for the Northern District of Georgia with the case number
1:17-cv-01186-wsd . . . solely to permit the District Court to reach a decision in the
pending litigation . . . .” (Id. at Doc. 40).
4
1252, 1260 (11th Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)),
abrogated on other grounds by Mohamad v. Palestinian Auth., — U.S. —,
132 S. Ct. 1702 (2012). The Court also will not “accept as true a legal conclusion
couched as a factual allegation.” See Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). The complaint, ultimately, is required to contain
“enough facts to state a claim to relief that is plausible on its face.” Twombly,
550 U.S. at 570.
To state a plausible claim for relief, the plaintiff must plead 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. “Plausibility” requires more
than a “sheer possibility that a defendant has acted unlawfully,” and a complaint
that alleges facts that are “merely consistent with” liability “stops short of the line
between possibility and plausibility of ‘entitlement to relief.’” Id. (citing
Twombly, 550 U.S. at 557); see also Arthur v. JP Morgan Chase Bank, NA,
569 F. App’x 669, 680 (11th Cir. 2014) (noting that Conley’s “no set of facts”
standard has been overruled by Twombly, and a complaint must contain “sufficient
factual matter, accepted as true, to state a claim for relief that is plausible on its
face.”). “A complaint is insufficient if it ‘tenders naked assertions devoid of
5
further factual enhancement.’” Tropic Ocean Airways, Inc. v. Floyd,
598 F. App’x 608, 609 (11th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
“To survive a motion to dismiss, plaintiffs must do more than merely state
legal conclusions; they are required to allege some specific factual bases for those
conclusions or face dismissal of their claims.” Jackson v. BellSouth Telecomms.,
372 F.3d 1250, 1263 (11th Cir. 2004); see also White v. Bank of America, NA,
697 F. App’x 1015, 1018 (11th Cir. 2014) (“[C]onclusory allegations, unwarranted
deductions of facts or legal conclusions masquerading as facts will not prevent
dismissal.”) (quoting Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188
(11th Cir. 2002)).
Complaints filed pro se are to be liberally construed and are “held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (citations and internal quotation marks omitted).
Nevertheless, a pro se plaintiff must comply with the threshold requirements of the
Federal Rules of Civil Procedure. “Even though a pro se complaint should be
construed liberally, a pro se complaint still must state a claim upon which the
Court can grant relief.” Grigsby v. Thomas, 506 F. Supp. 2d 26, 28 (D.D.C. 2007).
“[A] district court does not have license to rewrite a deficient pleading.” Osahar
v. U.S. Postal Serv., 297 F. App’x 863, 864 (11th Cir. 2008).
6
B.
Analysis4
1.
Defendant’s Standing to Foreclose on the Property
Plaintiff asserts that “Defendant continues to hold itself out as the holder of
the note and the security deed while claiming to be the servicer of the loan. . . .
Defendant cannot show they are a real party of [sic] interest to foreclose or enforce
the negotiable instrument as they are the servicer.” (Compl. at 4). It is undisputed
that Plaintiff executed the Security Deed in favor of MERS, as nominee for
Defendant and Defendant’s successors and assigns. (Id.). Under the terms of the
Security Deed, Plaintiff “grant[ed] and convey[ed] to MERS . . . and the successors
and assigns of MERS with power of sale, [the Property].” (Security Deed at 2).
On August 25, 2015, MERS assigned the Security Deed to Defendant.
(Compl. at 3; see also Assignment at 1). The Assignment states that MERS “does
4
The Court notes that Plaintiff’s Complaint is a variation of form complaints
filed by persons seeking to avoid or delay foreclosure. See, e.g., Tonea
v. Nationstar Mortg., LLC, No. 1:14-cv-02397; Porter v. Ocwen Loan Serv.,
No. 1:16-cv-4759; Pessini v. Nationstar Mortg. LLC, No. 1:17-cv-1058; Samuel
v. Nationstar Mortg., No. 1:15-cv-0350; Pritchett v. Ocwen Loan Serv., LLC,
No. 2:16-cv-175, No. 2:17-cv-18. Plaintiff’s Complaint is devoid of any
meaningful facts and his vague, conclusory allegations are wholly insufficient to
support a claim for relief. Plaintiff’s Complaint is an impermissible “shotgun
pleading” that fails to meet the requirements of Rule 8 of the Federal Rules of Civil
Procedure, and dismissal is warranted on this basis alone. See Oshar,
297 F. App’x at 864; Maldonado v. Snead, 168 F. App’x 373, 377 (11th Cir.
2006); Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001); Johnson Enters.
of Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d 1290, 1333 (11th Cir. 1998).
7
assign and set over, without recourse, to [Defendant] the described mortgage with
all interest, all liens, any rights due or to become due thereon . . . .” (Assignment
at 1). Defendant is thus entitled to exercise the power of sale in the Security Deed.
See O.C.G.A. § 23-2-114.11.
To the extent Plaintiff argues that Defendant cannot foreclose on the
Property and his mortgage is void because it was improperly securitized, this
argument has been consistently rejected under Georgia law. See, e.g., Searcy
v. EMC Mortg. Corp., No. 1:10-cv-0965, 2010 Dist. LEXIS 119975, at *2 (N.D.
Ga. Sept. 30, 2010) (“While it may well be that Plaintiff’s mortgage was pooled
with other loans into a securitized trust that then issued bonds to investors, that fact
would not have any effect on Plaintiff’s rights and obligations with respect to the
mortgage loan, and it certainly would not absolve Plaintiff from having to make
loan payments or somehow shield Plaintiff’s property from foreclosure.”).
Plaintiff has not, and cannot, assert a viable claim under any legal theory based on
Defendant’s alleged lack of authority to foreclose on the Property. Insofar as any
of his claims, including his request for injunctive relief, are based on Defendant’s
alleged lack of authority to foreclose on the Property, these claims are required to
be dismissed.
8
2.
Fraudulent Conversion (Count I)
Plaintiff cannot state a claim for conversion because the property
Defendant allegedly converted is Plaintiff’s home, and under Georgia law,
“[c]onversion does not apply to real property.” Chung v. JPMorgan Chase Bank,
N.A., 976 F. Supp. 2d 1333, 1347 (N.D. Ga. 2013) (citing Levenson v. Ward, 668
S.E.2d 763 (Ga. Ct. App. 2008) (“An action for conversion and trover will not lie
to recover real property.”)). Plaintiff has not, and cannot, state a claim for
fraudulent conversion based on Defendant’s alleged conversion of the Property,
and Plaintiff’s fraudulent conversion claim is required to be dismissed.
To the extent Plaintiff’s conversion claim is based on his argument that
Defendant never “put forth any consideration in the alleged contract” and that
Plaintiff was not loaned any money, so he does not owe a debt, could not have
defaulted on his mortgage, and thus cannot be foreclosed upon, this “no money
lent” or “vapor money” theory had been consistently rejected by this Court and
other courts throughout the country. See, e.g., McCrary v. Nationstar Mortg.,
No. 1:15-cv-1235, 2015 U.S. Dist. LEXIS 186099, at *12-13 (N.D. Ga. Nov. 25,
2015) (“So-called ‘vapor money’ claims are based on the notion that a borrower’s
repayment obligation is negated, because of the allegation that the lending bank did
not fund the loan through actual deposits of legal tender but rather ‘created’ the
9
appearance of a loan through bookkeeping entries. Courts have uniformly rejected
those and similar nonsensical arguments.”) (collecting cases); Yeboah v. Bank of
N.Y. Mellon, No. 1:12-CV-02139, 2012 WL4759246, at *5 (N.D. Ga. Aug. 30,
2012) (explaining that plaintiff’s allegation that he, not the original lender, “‘was
the depositor’ . . . is commonly known as the ‘vapor money’ theory or a ‘no money
lent’ claim,” and “[s]uch claims fail as a matter of law”) (collecting cases), adopted
by 2012 WL 4759242 (N.D. Ga. Oct. 5, 2012). Plaintiff’s conversion claim is
dismissed for this additional reason.
3.
Declaratory Judgment (Credit Default Swap) (Count III)
Plaintiff alleges that “[t]he Loan was insured by a credit default swap
agreement (the ‘CDSA’), which resulted in payout of the Loan’s outstanding
balance upon Plaintiff’s default.” (Compl. at 16). He further alleges that he is
entitled to a declaratory judgment “that Defendant is not entitled to the self help
remedy of nonjudicial foreclosure” because “the true owner of the Loan was made
whole by the CDSA and consequently, suffered no loss or harm by Plaintiff’s
purported default.” (Id. at 17). Plaintiff fails to provide any factual or legal basis
for this claim, and “courts have uniformly rejected claims that securitization,
insurance, or credit default swaps negate a borrower’s obligations or a creditor’s
ability to foreclose.” Williams v. Ocwen Loan Serv., LLC, No. 1:14-CV-3531,
10
2015 U.S. Dist. LEXIS 180550, at *26-27 (N.D. Ga. July 31, 2015) (collecting
cases), adopted by 2015 U.S. Dist. LEXIS 180551 (N.D. Ga. Aug. 26, 2015).
The Court notes further that Plaintiff already defaulted on his loan
obligations and it is undisputed that Defendant already initiated foreclosure
proceedings. No uncertainty exists about any future action by Plaintiff. A
declaratory judgment is unavailable because “all material rights have accrued
based on past events and what Plaintiff seeks is an advisory opinion on the validity
of the future act of another party.” See Milani v. One West Bank FSB, 491
F. App’x 977, 979 (11th Cir. 2012) (citing Logan Paving Co. v. Peoples Bank
& Trust, 395 S.E.2d 287, 288 (Ga. Ct. App. 1990)); id. (“[T]o pursue properly a
declaratory judgment under Georgia law ‘a party must establish that a declaratory
judgment is necessary to relieve himself of the risk of taking some future action
that, without direction, would jeopardize his interests.’”) (quoting Porter
v. Houghton, 542 S.E.2d 491, 492 (Ga. 2001)). Plaintiff’s claim for declaratory
relief is required to be dismissed.
4.
Unfair and/or Deceptive Business Practices (Count IV)
Plaintiff alleges that “Defendant engaged in unfair and/or deceptive business
practices under the Georgia Fair Business Practices Act of 1975 by charging the
Plaintiff False Servicer Fees.” (Compl. at 17).
11
The Georgia Fair Business Practices Act (“FBPA”) prohibits “[u]nfair or
deceptive acts or practices in the conduct of consumer transactions and consumer
acts or practices in trade or commerce.” O.C.G.A. § 10–1–393(a). The FBPA
does not apply to transactions that occur in regulated areas of activity, such as loan
lending and servicing. See O.C.G.A. § 10-1-396(1) (FBPA does not apply to
“actions or transactions specifically authorized under laws administered by or rules
and regulations promulgated by any regulatory agency of this state or the United
States”); James v. Bank of America, N.A., 772 S.E.2d 812, 816 (Ga. Ct. App.
2015) (holding that “because residential mortgage transactions are regulated by
both state and federal law, the FBPA does not apply”); Stewart v. Suntrust Mortg.,
Inc., 770 S.E.2d 892, 897–98 (Ga. Ct. App. 2015) (finding that plaintiff’s FBPA
claim fails in part because the mortgage industry is regulated); Sheppard v. Bank
of America, NA, 542 F. App’x 789, 793 (11th Cir. 2013) (“As construed by
Georgia courts, it appears the FBPA does not apply to transactions that occur in
regulated areas of activity, such as loan lending and servicing”). Plaintiff has not,
and cannot, state a claim for violation of the FBPA based on Defendant’s servicing
of his mortgage, and Plaintiff’s FBPA claim is required to be dismissed.5, 6
5
Even if Plaintiff could assert a claim for violation of the FBPA based on the
servicing of his mortgage, Plaintiff fails to assert that he gave Defendant the
required 30-day notice before filing his Complaint. See O.C.G.A. § 10-1-399(b);
12
5.
Fraud and/or Attempted Fraud (Count V)
Plaintiff alleges that Defendant “misrepresented the true balance of the Loan
and their true status as servicer and/or creditor of the Loan, with knowledge or
reckless disregard of the statements’ falsity, in each of the Monthly Statements,
Notice of Default, Payoff Letter and Notice(s) of Foreclosure.” (Compl. at 18).
Plaintiff claims that he “relied on these representations by continuing to deal with
Defendant as their [sic] lender, including directing their [sic] modification
application(s) [sic],” which “caused damages to Plaintiff in the form of pecuniary
loss and mental anguish.” (Id.).
Walker v. JPMorgan Chase Bank, N.A., 987 F. Supp. 2d 1348, 1354 (N.D. Ga.
2013); Steed v. Fed. Nat. Mortg. Corp., 689 S.E.2d 843, 849 (Ga. Ct. App. 2009);
Brown Realty Assoc., Inc. v. Thomas, 389 S.E.2d 505, 510 (Ga. Ct. App. 1989).
Plaintiff’s FBPA claim is required to be dismissed for this additional reason.
6
In connection with his FBPA claim, Plaintiff asserts that “Defendant has
violated the FDCPA, U.S.C. § 1692f [sic] because it has engaged in conduct of
which the natural consequence of which is to harass, oppress, or abuse Plaintiff in
connection with the alleged attempt to collect on this debt and foreclosure of
Plaintiff’s property.” (Compl. at 17). The FDCPA only applies to “debt
collectors,” and Plaintiff fails to allege any facts to support that Defendant is a
“debt collector” for purposes of the FDCPA. See 15 U.S.C. § 1692a(6) (defining
“debt collector” as “any person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose of which is the
collection of any debts, or who regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due another”); Davidson
v. Capital One Bank (USA), N.A., 797 F.3d 1309, 1313 (11th Cir. 2015) (plaintiff
must plead factual content that allows the court to draw a reasonable inference that
defendant is a “debt collector” under the FDCPA). Plaintiff fails to state a claim
for violation of the FDCPA.
13
In Georgia, a plaintiff alleging fraud must show: “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
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).
Plaintiff’s conclusory allegations are not sufficient to support a fraud claim.
Plaintiff fails to describe with sufficient particularity the allegedly false statement
made, the manner in which it misled Plaintiff, or what Defendant gained by
14
allegedly making the false statement. Plaintiff further fails to allege that he relied
upon a false representation, or that such reliance was justifiable. Plaintiff alleges
merely that Defendants “misrepresented the true balance of the Loan and their true
status as servicer and/or creditor of the Loan,” that he relied on these
misrepresentations “by continuing to deal with Defendant” and sending Defendant
a modification application, and that Defendant caused him “pecuniary loss and
mental anguish.” (Compl. at 18).7 Plaintiff has not pled the elements of fraud with
the specificity required under Rule 9 of the Federal Rules of Civil Procedure and
he otherwise fails to state a claim for fraud under Georgia law. See Baxter,
704 S.E.2d at 429; Thomas, 393 F. App’x at 638; Albert, 2011 WL 1085148 at *2.
Plaintiff’s fraud claim is required to be dismissed.
6.
Mortgage Servicing Fraud (Count II)
Plaintiff fails to allege any facts about Defendant’s alleged misconduct in
servicing Plaintiff’s loan. Rather, Plaintiff’s “mortgage servicing fraud” claim
consists of nineteen (19) paragraphs of illogical, convoluted allegations about the
mortgage loan servicing industry in general. To the extent Plaintiff “asks this court
7
Plaintiff fails also to show that he suffered damages because of Defendant’s
alleged fraud, particularly because it appears Plaintiff had been living in the
Property without successfully making any mortgage payments since June 2015.
(See Pet. For TRO [3.3] at ¶ 1; In re Winston, 17-56232-WLB, Doc. 39.1 (Bankr.
N.D. Ga. Aug. 8, 2017)).
15
for discovery” to support his mortgage servicing fraud claim (Compl. at 17, 20),
the Eleventh Circuit has observed that the “clear intent [of Rule 9] is to eliminate
fraud actions in which all the facts are learned through discovery after the
complaint is filed,” Friedlander v. Nims, 755 F.2d 810, 813 n.3 (11th Cir. 1985).
Plaintiff’s conclusory assertions do not satisfy the pleading requirements of Rule 9
and Plaintiff otherwise fails to state a claim for fraud under Georgia law. See
Baxter, 704 S.E.2d at 429; Thomas, 393 F. App’x at 638; Albert, 2011 WL
1085148 at *2. Plaintiff’s mortgage servicing fraud claim is required to be
dismissed.8
8
In his Complaint, Plaintiff also makes passing references to the Real Estate
Settlement Procedures Act (“RESPA”) and the Truth in Lending Act (“TILA”).
(See Compl. at 3). To the extent Plaintiff claims that Defendant violated RESPA
by failing to respond to his February 10, 2017, Qualified Written Request
(“QWR”) (see Compl. at 3), Plaintiff filed his Complaint on March 14, 2017—at
most, 21 business days after he mailed his QWR—and thus his RESPA claim is
premature. See Compl. at 3; 12 U.S.C. § 2605(e)(2) (requiring servicer to respond
“[n]ot later than 30 days (excluding legal public holidays, Saturdays, and Sundays)
after the receipt from any borrower of any [QWR]”).
Plaintiff further cannot state a claim for rescission under TILA because the
Property at issue is Plaintiff’s home, and the right of rescission does not apply to
residential mortgage transactions. See 15 U.S.C. § 1635(e)(1) (right of recision
does not apply to “residential mortgage transactions”); 15 U.S.C. §1602(x)
(“residential mortgage transaction” means a transaction in which a mortgage [is
obtained] against the consumer’s dwelling to finance the acquisition or initial
construction of such dwelling”). To the extent Plaintiff claims that Defendant
violated TILA by failing to respond to his request for “disclosure” and “validation
of the debt,” even assuming his letter constitutes a valid request under TILA,
Plaintiff fails to show that he suffered actual damages resulting from Defendant’s
16
7.
Intentional Infliction of Emotional Distress (Count VI)
Plaintiff alleges that “Defendant’s acts and/or omissions were done
intentionally and/or with gross indifference to Plaintiff’s rights. Plaintiff’s
emotional distress includes, but is not limited to, extreme humiliation, anxiety and
loss of sleep. As a result of the Defendant’s conduct, fraud and lack of disclosure,
Plaintiff has suffered compensatory, general and special damages.” (Compl. at 18).
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)).
alleged failure to respond. See Turner v. Beneficial Corp., 242 F.3d 1023, 1028
(11th Cir. 2001) (“[D]etrimental reliance is an element of a TILA claim for actual
damages . . . plaintiff must present evidence to establish a causal link between the
financing institution’s noncompliance and his damages.”); see also Che v. Aurora
Loan Serv., 847 F. Supp. 2d 1205, 1209 (C.D. Cal. 2012) (dismissing claim for
failure to plead actual damages resulting from alleged TILA violation because
damages resulted from plaintiff “allow[ing] her loan to go into default”).
17
The core of Plaintiff’s claim is that Defendant “attempt[ed] to take
Plaintiff’s real property through foreclosure when they have no legal right to do
so.” (Compl. at 18). This is simply not the kind of action that rises to the level of
extreme, outrageous, atrocious or intolerable conduct required to support a claim
for intentional 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.
8.
Petition for Temporary Restraining Order and 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
18
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
the merits, he cannot demonstrate likely or actual success on the merits, and his
petition for injunctive relief is required to be denied.
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendant 350 Mortgage Group, LLC’s
Motion to Dismiss [4] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff Darryl Winston’s Petition for
TRO [2] is DENIED.
SO ORDERED this 2nd day of October, 2017.
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