Jorgensen v. Federal Home Loan Mortgage Corporation et al
Filing
36
ORDER GRANTING Defendant Pendergrast's 5 Motion to Dismiss and Plaintiff's request for preliminary injunctive relief is DENIED. Plaintiffs request for injunctive relief having been DENIED, the Clerk is DIRECTED to refer the case to the next available Magistrate Judge, pursuant to Standing Order Number 08-01. Signed by Judge Richard W. Story on 07/19/13. (sk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
DAVID JOHN JORGENSEN,
Plaintiff,
v.
FEDERAL HOME LOAN
MORTGAGE CORPORATION
a/k/a Freddie Mac,
CITIMORTGAGE, INC.,
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS,
INC., and PENDERGRAST &
ASSOCIATES, P.C.,
Defendants.
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CIVIL ACTION NO.
2:12-CV-00236-RWS
ORDER
This case comes before the Court on Defendant Pendergrast &
Associates, P.C.’s (“Pendergrast”) Motion to Dismiss [5] and Plaintiff’s request
for emergency injunctive relief, contained in the Complaint [1-1]. After
reviewing the record, the Court enters the following Order.
Background1
1
As the case is before the Court on a motion to dismiss, the facts alleged in the
Complaint are taken as true. Cooper v. Pate, 378 U.S. 546, 546 (1964).
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This case arises out of foreclosure proceedings on real property located at
4795 Clayburn Road, now known as 4850 Sunrise Lane, Cumming, Georgia,
30041 (“the Property”). (Compl., Dkt. [1-1] ¶ 17.) On November 1, 2005,
Plaintiff obtained a loan from CMI and executed a security deed in favor of
CMI, naming MERS as the nominee for CMI and its successors and assigns, in
order to secure that loan. (Defs. CMI, Freddie Mac, and MERS’s Mot. to
Dismiss (“Defs.’ Mot.”), Ex. 2 (Security Deed), Dkt. [13-3] at 3 of 16.)2 On
August 27, 2009, MERS assigned and transferred its rights, title, and interest in
the Security Deed, the Property, and the indebtedness secured thereby back to
CMI. (Compl., Dkt. [1-1] at 40 of 67.) Plaintiff appears to assert claims for
wrongful foreclosure, contractual breach of good faith and fair dealing, and
seeks injunctive relief. (See generally id.) Plaintiff initiated this proceeding by
2
The Court may take judicial notice of public records not attached to the
Complaint, including in this case the Security Deed filed in the Superior Court of
Forsyth County, when considering a motion to dismiss. Byrant v. Avado Brands, Inc.,
187 F.3d 1271, 1280 (11th Cir. 1998). This does not convert the motion into one for
summary judgment. Universal Express, Inc. v. S.E.C., 177 F. App’x 52, 53 (11th Cir.
2006) (“A district court may take judicial notice of certain facts without converting a
motion to dismiss into a motion for summary judgment. . . . Public records are among
the permissible facts that a district court may consider.”) (citations omitted).
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filing his Complaint with the Superior Court of Forsyth County. (Id. at 1 of
67.)
Defendants timely removed the case to this Court on the basis of
diversity jurisdiction, and now Defendant Pendergrast moves to dismiss
Plaintiff’s claims against it for failure to state a claim upon which relief may be
granted pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6).
(Pendergrast’s Mot. to Dismiss, Dkt. [5].) The Court sets out the legal standard
governing Defendant’s motion to dismiss before considering the motion on the
merits.
Discussion
I.
Legal Standard
When considering a Rule 12(b)(6) motion to dismiss, a federal court is to
accept as true “all facts set forth in the plaintiff’s complaint.” Grossman v.
Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir. 2000) (citation omitted).
Further, the court must draw all reasonable inferences in the light most
favorable to the plaintiff. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56
(2007) (internal citations omitted). However, “[a] pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action
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will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009)
(quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id.
The United States Supreme Court has dispensed with the rule that a
complaint may only be dismissed under Rule 12(b)(6) when “‘it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.’” Twombly, 550 U.S. at 561 (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)). The Supreme Court has replaced that rule
with the “plausibility standard,” which requires that factual allegations “raise
the right to relief above the speculative level.” Id. at 556. The plausibility
standard “does not[, however] impose a probability requirement at the pleading
stage; it simply calls for enough facts to raise a reasonable expectation that
discovery will reveal evidence [supporting the claim].” Id.
Additionally, because Plaintiff is proceeding pro se, his “pleadings are
held to a less stringent standard than pleadings drafted by attorneys and will,
therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998). “This leniency, however, does not require or
allow courts to rewrite an otherwise deficient pleading in order to sustain an
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action.” Thomas v. Pentagon Fed. Credit Union, 393 F. App’x 635, 637 (11th
Cir. 2010). Utilizing this framework, the Court considers the claims raised in
Plaintiff’s Complaint.
II.
Analysis
A.
Pendergrast’s Motion to Dismiss [5]
In Plaintiff’s Complaint, he includes Pendergrast with the other
Defendants in his allegations that they “are engaged in the same kind of unfair
and deceptive business practices[,]” (Compl., Dkt. [1-1] ¶ 56) alleges “[Freddie
Mac] and [Pendergrast]’s advertisement [of the foreclosure sale] failed to fall
within the guidelines set out by Georgia’s General Assembly[,]” (id. ¶ 85) and
that “[Defendants] and [Pendergrast] have filed, or caused to be filed false and
fabricated and forged assignments of mortgage[.]” (Id. ¶ 113.) These are the
only mentions of Pendergrast in Plaintiff’s Complaint. Plaintiff fails to allege
any conduct on the part of Pendergrast outside of the allegations that
Pendergrast’s advertisement of the foreclosure sale was inadequate and that
Pendergrast allegedly filed fraudulent or forged documents in connection with
the assignment of the Security Deed from MERS to CMI. (Id. ¶¶ 85, 113.)
Plaintiff has failed to indicate anywhere in his Complaint how the
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advertisement was inadequate, and Plaintiff has in fact included evidence of the
validity of the assignment within his Complaint. (See Id. at 40 of 67.) In any
event, Plaintiff does not have standing to challenge the validity of the
assignment as he is a third party to it. See Rosenhaft v. BAC Home Loans
Servicing, LP, No. 1:11-CV-2519-TWT, 2012 WL 484842, at *2 (N.D. Ga.
Feb. 14 2012) (“BAC has the right to foreclose on the property because the
Security Deed is assignable. . . . Furthermore, the Plaintiff does not have
standing to challenge the assignment from MERS to BAC because she was not
a party to the assignment.”).
After thoroughly reviewing the record, the Court finds that Plaintiff has
failed to plead any facts in support of his allegations regarding Pendergrast and
has failed to do more than set forth “‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
555). Therefore, the Court finds that Pendergrast’s Motion to Dismiss [5] is
due to be GRANTED.
B.
Plaintiff’s Request for Emergency Injunctive Relief
Plaintiff seeks injunctive relief in order to stay imminent foreclosure and
eviction. Before a court will grant a motion for injunctive relief, the moving
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party must show:
(1) a substantial likelihood of success on the merits; (2) that
irreparable injury will be suffered unless the injunction issues; (3)
that the threatened injury to the movant outweighs whatever damage
the proposed injunction may cause the opposing party, and (4) that if
issued the injunction would not be adverse to the public interest.
All Care Nursing Serv., Inc. v. Bethesda Mem’l Hosp., Inc., 887 F.2d 1535,
1537 (11th Cir. 1989) (citation omitted). “Of these four requisites, the first
factor, establishing a substantial likelihood of success on the merits, is most
important . . . .” ABC Charters, Inc. v. Bronson, 591 F. Supp. 2d 1272, 1294
(S.D. Fla. 2008). After thoroughly reviewing the record, the Court finds that
Plaintiff’s Complaint does nothing more than recite statutory language and
assert bare legal conclusions. As such, Plaintiff has not shown a substantial
likelihood of success on the merits of any of his claims. Since Plaintiff has
failed on the most important of the requisites to the grant of an injunction, the
Court finds that Plaintiff is not entitled to injunctive relief. Therefore,
Plaintiff’s request for injunctive relief is due to be DENIED.
Conclusion
In accordance with the foregoing, Defendant Pendergrast’s Motion to
Dismiss [5] is GRANTED, and Plaintiffs’ request for preliminary injunctive is
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DENIED. Plaintiff’s request for injunctive relief having been DENIED, the
Clerk is DIRECTED to refer the case to the next available Magistrate Judge,
pursuant to Standing Order Number 08-01.
SO ORDERED, this 19th day of July, 2013.
_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
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