Jorgensen v. Federal Home Loan Mortgage Corporation et al

Filing 38

ORDER granting 13 Motion to Dismiss for Failure to State a Claim and Plaintiff's Complaint is DISMISSED with prejudice. Signed by Judge Richard W. Story on 9/13/2013. (vld)

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

GAINESVILLE DIVISION

DAVID JOHN JORGENSEN,
Plaintiff,

v.

Civil Action No.
2: 12-CV-00236-RWS

FEDERAL HOME LOAN
MORTGAGE CORPORATION
aJk/a "FREDDIE MAC"
,
CITIMORTGAGE, INC., AND
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.
Defendants
ORDER

This case is before the Court on Defendants' motion to dismiss Plaintiffs
Complaint. (Doc. 13). Because Plaintiffs Complaint fails to state a claim upon
which relief can be granted, the Court GRANTS Defendants' motion.
Factual and Procedural Historyl

These facts are taken from Plaintiff s Complaint (Doc. 1-1), and from copies of
documents referred to in the Complaint that relate to the loan transaction, and the
foreclosure and eviction proceedings at issue, which are attached as exhibits to the
Complaint (Doc. 1-1 at 27-50) or to Defendants' motion (Docs. 13-3 through 13­
14 and Doc. 19-1). In ruling on a motion to dismiss, the court may consider
documents attached to the motion and response if those documents are central to
the complaint and not in dispute. See Harris v. Ivax Corp., 182 F.3d 799, 802 n.2
(11th Cir. 1999); Okim v. Bank ofAm., No.1 :12-cv-01759-TWT-GGB, 2012 U.S.
Dist. LEXIS 168788, at *7 (N.D. Ga. Oct. 25, 2012) (noting that the court is
authorized to consider documents attached to motions to dismiss where "the
1

On November 1, 2005, Plaintiff obtained a loan from CitiMortgage, Inc.
("CitiMortgage") in the amount of $175,000, secured by property at 4850 Sunrise
Lane, Cumming, Forsyth County Georgia 30041.2 (Doc. 1-1 at ~ 17; Doc. 13-3).
Plaintiff executed a Security Deed in favor of Mortgage Electronic Registration
Systems, Inc. ("MERS), as nominee for CitiMortgage. (See Doc. 13-3). The
Security Deed was recorded on November 3, 2005 in Forsyth County, Deed Book
4033, Pages 220-235. (Id.). On August 27, 2009, MERS assigned its interest in
the Security Deed to CitiMortgage. (Doc. 1-1 at 40). CitiMortgage recorded the
Assignment on September 4,2009 in Forsyth County, Deed Book 5522, Page 227.
(Id.).

After Plaintiff defaulted on the loan, CitiMortgage initiated foreclosure
proceedings, and on January 4, 2011, CitiMortgage foreclosed on the subject
property and thereafter transferred the property to Federal Home Loan Mortgage
Corporation ("Freddie Mac"). (Doc. 1-1 at 34-36; Docs. 13-6, 13-7). Freddie Mac
then initiated a dispossessory proceeding in the Forsyth County Magistrate Court
to obtain possession of the subject property, and the court issued a Writ of
Possession on September 29,2011. (See Doc. 1-1 at ~ 20; Doc. 1-1 at 39; Doc. 13­
document is central to Plaintiffs claims, and the authenticity of the document has

not been challenged"). The Court may also take judicial notice of public records,

such as real estate records and court filings. See Universal Express, Inc. v. 8.E. c.,

177 Fed. Appx. 52, 53 (11th Cir. 2006).

2 This property was formerly designated as "4795 Clayburn Road," the address

listed on the promissory note and security deed. (See Docs. 13-3, 13-4, 19-1).

8). Plaintiff delayed the execution of that writ by filing a number of unsuccessful
appeals, a second bankruptcy action, and the instant lawsuit. (See Doc. 1-1 at

~~

26-29; Docs. 13-9 through 13-14).
On August 22, 2012, the same day the Bankruptcy Court issued an Order
allowing Freddie Mac to pursue eviction proceedings (see Doc. 13-14), Plaintiff,
proceeding pro se, filed a "Complaint for Fraudulent Foreclosure, Declaratory
Relief, Failure to Disclose, Equitable Relief and Emergency Injunctive Relief and
Damages" in the Superior Court of Forsyth County, Georgia.

(Doc. 1-1).

Defendants removed the action to this Court on October 5, 2012. (See Doc. 1). In
lieu of an answer, Defendants filed the pending motion to dismiss. 3 (Doc. 13).
Plaintiff filed a response (Doc. 18), and Defendants filed a reply (Doc. 21).
Briefing is complete, and the Court now considers the merits of Defendant's
motion.
Discussion
I.

Motion To Dismiss Standard
Rule 8(a)(2) requires that a complaint contain "a short and plain statement of

the claim showing that the pleader is entitled to relief." See FED. R. CIY. P. 8(a)(2).
A claim is frivolous "where it lacks an arguable basis either in law or in fact."
Neitzke v. Williams, 490 U.S. 319, 325 (1989). To state a claim that can survive a

Defendant Pendergast & Associates, P.C. also filed a motion to dismiss (Doc. 5),
which the Court granted (see Doc. 36).
3

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.'" Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). "Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice," and "only a complaint that states a
plausible claim for relief survives a motion to dismiss." Iqbal, 556 U.S. at 678-79.
To be plausible, the complaint must contain "well-pleaded facts" that "permit the
court to infer more than the mere possibility of misconduct." Id. at 679.
"Additionally, because Plaintiff[ is] acting pro se, [his] 'pleadings are held to a less
stringent standard than pleadings drafted by attorneys and will, therefore, be
liberally construed.'" Shields v. Bank of Am., No. 2:11-CV-00267-RWS, 2012
U.S. Dist. LEXIS 30183, at

* 3 (N.D. Ga. Mar. 6,2012) (quoting Tannenbaum

v.

United States, 148 F.3d 1262, 1263 (lIth Cir. 1998)). "'This leniency, however,

does not require or allow courts to rewrite an otherwise deficient pleading in order
to sustain an action.'" Id. (quoting Thomas v. Pentagon Fed. Credit Union, 393
Fed. Appx. 635, 637 (lIth Cir. 2010)).
II.

Plaintiff's Complaint

Plaintiffs Complaint fails to satisfy the above-described pleading standards
in several respects. As an initial matter, the Court has already denied Plaintiffs
request for injunctive relief, finding Plaintiff "has not shown a substantial

likelihood of success on the merits of any of his claims" because his "Complaint
does nothing more than recite statutory language and assert bare legal
conclusions." (Doc. 36 at 7). Plaintiffs other claims for relief fare no better.
First, Plaintiffs 120-paragraph Complaint is a classic example of a
"shotgun" pleading.

A "shotgun" complaint is one where "each count

incorporate [s] by reference all preceding paragraphs and counts of the complaint
notwithstanding that many of the facts alleged were not material to the claim, or
cause of action, appearing in a count's heading."

Thompson v. RelationServe

Media, Inc., 610 F.3d 628,650 n. 22 (lIth Cir. 2010). "This circuit condemns
shotgun pleading."

Id.

Moreover, Plaintiffs "claims" consist of largely

conclusory allegations of wrongdoing by Defendants related to their efforts to
foreclose on the subject property and evict Plaintiff from it. Plaintiff generally
alleges, "This complaint asserts foreclosure (pleading) fraud, lack of standing
and/or lack of capacity to foreclose, bad faith breach of contract (deceptive and
unfair practices), tort, tortuous misrepresentation, detrimental reliance, declaratory
and injunctive relief, damages and for violations under the Fair Debt Collection
[Practices] Act (15 U.S.C. Sec. 1692c (2)(A), (5) & (10) ...." (Doc. 1-1 at 1-2).
He also cites to the Truth in Lending Act ("TILA"), Georgia's foreclosure statutes,
and "Georgia Land Registration laws" throughout his Complaint. (See generally
id. at 9-21).

The gravamen of Plaintiffs Complaint appears to be that the foreclosure
proceedings, and by extension the dispossessory proceedings, were faulty because
the assignment of the Security Deed was improper, Defendants have not produced
the promissory note, and Defendants did not possess the promissory note and
therefore did not have standing to foreclose. (See Doc. 1-1). The courts have
repeatedly rejected these claims. See, e.g., Milburn v. Aegis Wholesale Corp., No.
1:12-CV-01886-RWS, 2013 U.S. Dist. LEXIS 36664, at *9 (N.D. Ga. Mar. 18,
2013) (explaining that "as a stranger to the Assignment, Plaintiff lacks standing to
challenge it"); Clarke v. Branch Banking & Trust Co., No.1: 12-CV-033 83-JEC­
RGV, 2013 U.S. Dist. LEXIS 49875, at *22 (N.D. Ga. Mar. 4, 2013) (noting that
the plaintiff s "claim appears to be an attempt to repackage a 'produce the note'
argument that has been repeatedly rejected by this court, and is therefore due to be
dismissed" (listing cases»; LaCosta v. McCalla Raymer, LLC, No.1 :10-CV-1171­
RWS, 2011 U.S. Dist. LEXIS 5168, at *15-18 (N.D. Ga. Jan. 18, 2011) (rejecting
plaintiffs wrongful foreclosure claim based on "splitting" of note and security
deed and finding that holder of security deed was authorized to exercise power of
sale); You v. JP Morgan Chase Bank, N.A., No. S13Q0040, 2013 Ga. LEXIS 454,
at *16-17 (Ga. May 20, 2013) (holding that "[u]nder current Georgia law, the
holder of a deed to secure debt is authorized to exercise the power of sale in

accordance with the terms of the deed even if it does not also hold the note or
otherwise have any beneficial interest in the debt obligation underlying the deed,,). 4
To the extent that Plaintiff cites to statutory provisions, such as the FDCPA,
TILA, Georgia's foreclosure statutes, or "Georgia Land Registration laws,"
Plaintiff fails to allege any specific facts to support his assertions that Defendants
violated those statutes. 5 His Complaint consists primarily of nothing more than
"labels and conclusions, . . . formulaic recitation of the elements of a cause of
action," Twombly, 550 U.S. at 555, and "naked assertion[s] devoid of further
factual enhancement." Iqbal, 556 U.S. at 678.
Plaintiffs allegations are remarkably similar to those in numerous other
cases that have been filed by plaintiffs (often unrepresented) in an effort to delay,
prevent or even reverse foreclosures and dispossessory actions. Such lawsuits­
Plaintiffs allegation that CitiMortgage did not hold the promissory note (see
Doc. 1-1 at ~ 25) is puzzling given that CitiMortgage was the original lender, and
Plaintiff has not alleged that CitiMortgage transferred the note. At any rate, even if
CitiMortage did not hold the note when it foreclosed on the subject property, the
You decision makes clear that CitiMortgage, as holder of the security deed, was
authorized to foreclosure.
5 Plaintiff also complains that CitiMortgage failed to modify Plaintiffs loan, even
though "RAMP guidelines require [CitiMortgage] to perform modification
services for all mortgage loans it services." (Doc. 1-1 at ~ 37). It is not clear
whether Plaintiff intended to assert a claim under the Home Affordable
Modification Program ("RAMP"), but if so, such a claim fails because "the
Eleventh Circuit has held that no implied private right of action exists under
RAMP." Okim v. Bank of Am., No. 1:12-cv-01759-TWT-GGB, 2012 U.S. Dist.
LEXIS 168788, at *13 (N.D. Ga. Oct. 25, 2012) (citing Miller v. Chase Home Fin.,
LLC, 677 F.3d 1113, 116-17 (lIth Cir. 2012)), adopted by 2012 U.S. Dist. LEXIS
167516 (N.D. Ga. Nov. 26, 2012).
4

wherein the plaintiffs often make rambling, incomprehensible and/or conclusory
allegations about mortgage industry practices such as the securitization of
mortgages, and the MERS assignment and registration system, allege that the
promissory note and the security deed have been improperly "split" or separated,
and demand to see the promissory note-have become commonplace. See, e.g.,

Curtis v. BAC Home Loans Servicing, LP, No. 5:10-CV-226-MTT, 20] 0 U.S. Dist.
LEXIS 109400, at *3-5 & n.1 (M.D. Ga. Oct. 14, 2010) (finding that "the vast
majority of the Plaintiff's allegations [related to a residential mortgage loan
transaction and similar to those made in the instant case] are wholly
incomprehensible" and noting that seven cases on that judge's docket used
virtually the same form complaint); Watts v. Ocwen Loan Servicing, LLC, No.
5:10-cv-238 (CAR), 2010 U.S. Dist. LEXIS 73486, at *1, 4 (M.D. Ga. July 21,
2010) (finding that the plaintiff's lawsuit, "the latest in a series of lawsuits filed in
his effort to forestall foreclosure," was "largely incomprehensible," and
"appear[ed] to be nothing more than an attempt to use frivolous and abusive
litigation to forestall a lawful foreclosure so that Plaintiff [could] continue to live
in a house that he ha[d] occupied, rent-free, for twenty-two months."). I

The plaintiff in Watts advanced theories similar to those advanced by Plaintiff in
the instant case: "(1) that the assignment of the loan to Defendant was somehow
wrongful or fraudulent; and (2) that the security interest was void because
Defendant failed to produce the original signed Note and Security Deed to
Plaintiff." Watts, 2010 U.S. Dist. LEXIS 73486, at *2.
1

The Court finds the instant Complaint similarly deficient, and therefore,
Plaintiff has failed to satisfy the pleading requirements of Rule 8, Twombly and
Iqbal, even taking his pro se status into account. See Washington v. CSX Transp.
(R.R.), No. CV408-247, 2009 U.S. Dist. LEXIS 12903, at *4-5 (S.D. Ga. Mar. 9,

2009) ("[T]he Twombly pleading standard, even when applied to pro se plaintiffs,
simply does not permit a Court to 'reverse-engineer' a plaintiffs conclusion that
he is entitled to relief. Instead, the plaintiff must plead facts and law showing why
he is entitled to relief. He thus must assert non-conclusory allegations supporting
the elements of his claims."), adopted by 2009 U.S. Dist. LEXIS 39308 (S.D. Ga.
May 8, 2009).
The Court acknowledges that where a "more carefully drafted complaint
might state a claim," the court must allow a pro se plaintiff "at least one chance to
amend the complaint before the district court dismisses the action with prejudice,"
unless amendment would be futile. Lee v. Alachua Cnty., 461 Fed. Appx. 859, 860
(11th Cir. 2012) (unpublished decision). The Court finds, however, that a more
carefully drafted complaint would not state a claim, and that it would be futile to
allow Plaintiff to amend his Complaint. The Complaint is utterly devoid of facts to
support Plaintiff s claims, and Plaintiff made no showing in response to
Defendants' motion to dismiss that, with additional factual enhancement, he could

state a claim against these Defendants. 6 Furthermore, the documents relevant to
the foreclosure proceedings fail to demonstrate the plausibility of a claim based on
those proceedings.
Accordingly, Defendants' motion to dismiss (Doc. 13) is GRANTED, and
Plaintiffs Complaint is DISMISSED with prejudice. 7 See} e.g., McFarland v.
BAC Home Loans Servicing} LP, Civil Action No. 1:ll-CV-04061-RWS, 2012
U.S. Dist. LEXIS 82638 (N.D. Ga. June 14, 2012) (granting defendant's motion to
dismiss pro se plaintiff s similar complaint alleging wrongful foreclosure and to
quiet title, and dismissing complaint with prejudice); Woodberry v. Bank of Am.,
NA., No. 1:ll-CV-3637, 2012 U.S. Dist. LEXIS 4197 (N.D. Ga. Jan. 12,2012)
(same).

Plaintiff asserts in his response that upon completion of a "forensic audit," he will
be able to correct his pleading deficiencies. (Doc. 18 at 3-4). Such audits have
been discredited and are insufficient to rehabilitate an otherwise deficient pleading.
See Lefont v. SunTrust Mortg., Inc., No. 2:10-CV-0360RWS-SSC, 2011 U.S. Dist.
LEXIS 15772, at *12 n.6 (N.D. Ga. Jan. 26, 2011) (noting that the Federal Trade
Commission issued a "Consumer Alert" regarding such audits), adopted by 2011
U.S. Dist. LEXIS 15766 (N.D. Ga. Feb. 16, 2011); see also Demilio v. Citizens
Home Loans, Inc., No. 3:12-CV-81 (CAR), 2013 U.S. Dist. LEXIS 11469, at *9
(M.D. Ga. Jan. 29, 2013) (refusing to consider "Certified Forensic Loan Audit" as
it is "more likely the product of 'charlatans who prey upon people in economically
dire situation,' rather than a legitimate recitation of Plaintiff s factual allegations"
(quoting In re Norwood, No. 10-84443-PWB, 2010 Bankr. LEXIS 3811, at *5
(Bankr. N.D. Ga. Oct. 21, 2010)).
7 Because the Court finds that Plaintiff s Complaint fails to state a claim on which
relief can be granted, it is unnecessary to reach Defendants' other arguments in
support of dismissal, including their contentions about Plaintiffs bankruptcy
proceedings.
6

IT IS SO ORDERED this!?~day of September, 2013.

United States District Judg