Hand v. ABN AMRO Mortgage Group, Inc. et al
Filing
26
ORDER denying 5 Motion to Dismiss; denying 22 Motion for Judgment on the Pleadings. The Complaint and Anwers are striken. Plaintiff is directed to file an Amended Complaint within 21 days of this Order. Defendants shall have 21 days to plead or otherwise respond. Signed by Judge J. Randal Hall on 12/05/2013. (thb)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
RICHARD HAND,
*
•
Plaintiff,
*
v.
*
CV 112-176
*
ABN AMRO MORTGAGE GROUP, INC.;
LASALLE BANK, N.A.; CENLAR
FEDERAL SAVINGS BANK;
CITIMORTGAGE,
*
*
and
*
INC.,
*
*
Defendants.
*
ORDER
Presently
for
judgment
pending
on
consideration,
the
before
pleadings.
case
Plaintiff's
Plaintiff
(Doc.
arises
mortgage
signed
located
at
("the Property").
AMRO
Mortgage
mortgage.1
a
out
of
the
loan.
nos.
Defendants'
5,
3928
Mike
(Compl.
31 10.)
or
22.)
motions
Upon
due
about
and
servicing of
December
Inc.
a security interest in his
Highway
7 & Ex. A.)
began
in
Deed
Augusta,
Inc.
servicing
("CMI") ,
ABN while this case was pending
(Doc. no. 1, Ex. 3 at 119, 126.)
giving
Georgia
In February 2003,
in
and CMI
the
ABN
Plaintiff's
In late 2003 and early 2004,
1 ABN merged into CitiMortgage,
2002,
and
("ABN")
Security
31,
Note
Padgett
f
Inc.
administration
On
Promissory
Group,
(Io\
substituted for
Richmond County.
are
BACKGROUND
Southern Mortgage Lending Group,
home
Court
these motions are DENIED.
I.
This
the
Plaintiff
was officially
Superior
Court
of
began
receiving
insurance,
(IcL n
practices
(Id. 55 29,
On
from
delinquency,
foreclosure.
billing
notices
April
2,
regarding
collection
maintained
that
forced-placed
efforts,
17-33, 36, 39-42.)
and
34-35,
ABN
and
possible
Plaintiff disputed ABN's
his
account
was
current.
37.)
2004,
Plaintiff and his
wife
filed a voluntary
Chapter 13 petition in the United States Bankruptcy Court for the
Southern
(Bankr.
District
S.D.
of
Ga.).
Georgia.
ABN
amount of $73,004.12.
filed
See
In
proof
of
Re
a
Hand,
No.
secured
04-11178
claim
Pursuant to the Chapter 13 plan,
in
the
Plaintiff
was to make regular post-petition payments directly to ABN as they
became due,
payments
September
and any pre-petition arrearages would be cured through
to
9,
reserved the
21,
22.)
arrearage
entirety.
the
Chapter
2004,
right
the
to
Plaintiff
claim,
Bankruptcy Court
plan
object
doc.
entered
was
an
that
no.
it
24.)
a consent
On
order
(Bankr.
10.)
though
claim.
should
no.
Plaintiff
(Bankr.
doc.
to
ABN's
be
disallowed
January
reducing
doc.
no.
On
nos.
pre-petition
its
2005,
28,
in
the
the
34.)
arrearage
On June
successful completion of the plan,
Plaintiff was
granted a discharge pursuant to 11 U.S.C. § 1328(a).
(Bankr. doc.
no.
2007, after
doc.
confirmed,
objection
claim from $4,529.35 to $1,428.95.
1,
(Bankr.
to ABN's
filed
arguing
(Bankr.
13 Trustee.
82.)
On July 1,
2007,
ABN assigned the servicing rights to
Plaintiff's
(Compl.
In
doc.
mortgage
loan
to
January
85.)
2008,
the
However,
bankruptcy
in June 2008,
reopen the bankruptcy case,
86, 88.)
Re
and Cenlar.
Hand),
Complaint
was
No.
case
was
("LaSalle") .2
closed.
(Bankr.
Plaintiff filed a motion to
which was granted.
"voluminous
purported causes
no.
23
at
Hand v.
08-01023
the
4.)
The
of
(Bankr.
Estate
("RESPA"), O.C.G.A.
(Id. at 4, 28.)
and
Adversary
Settlement
ABN AMRO Mortgage
(Bankr.
S.D.
confusing,"
action at
specific causes of action,
Real
N.A.
doc.
nos.
Plaintiff then initiated an adversary proceeding against
LaSalle,
(In
Bank,
5 114.)
no.
ABN,
LaSalle
Ga. ) .
but
Inc.
The
Adversary
counsel
clarified
(Bankr.
Adv.
a hearing.
Complaint
Group,
raised
six
doc.
bankruptcy-
as well as claims for violation of the
Procedures
Act,
12
U.S.C.
§
§ 13-1-11, breach of contract,
2601
et
seq.
and conversion.
On March 26, 2009, the Bankruptcy Court dismissed
all the causes of action arising under the Bankruptcy Code.
(Id.
at
that
7-28.)
In
doing
so,
the
Bankruptcy
Court
determined
allegations relating to pre-petition and pre-confirmation conduct
were barred by the doctrine of res judicata.
Regarding
the
non-bankruptcy
causes
of
(See id. at 8-12.)
action,
the
Bankruptcy
Court found that it lacked jurisdiction to rule on those claims.
(Id.
at 28-30.)
2 Bank of America,
N.A.
("BANA")
succeeded LaSalle's
interest
through
merger. (Doc. no. 5 at 1 n.l.) Cenlar Federal Savings Bank ("Cenlar") serviced
the mortgage during BANA's ownership of the Promissory Note and Security Deed.
(Compl. I 6.)
On
March
16,
2010,
Plaintiff
filed
a
complaint
in
the
Superior Court of Richmond County against the same Defendants from
the Adversary Proceeding:
Ex.
1.)
The
allegations,
ABN,
Complaint
including
LaSalle,
sets
179
and Cenlar.
forth
a
individually
him
Defendants
unauthorized
failed
Due
that
to
to
credit
the
of
paragraphs
and
payments
expenses,
in
misapplied
connection
disorganized
nature
is
also
difficult
been raised,
to
determine
with
of
which
as they have not been set
The causes of action,
and
Stated broadly, Plaintiff
the
the
charged
payments,
mortgage
Complaint,
difficult to provide a more thorough summary of the
It
detailed
improperly force-placed insurance,
fees
highly
plethora
numbered
over 70 exhibits, totaling 261 pages.3
claims
(Doc. no. 1,
causes
and
loan.
it
is
allegations.
of
actions
have
forth in separate counts.
instead, are lumped together in a haphazard,
confusing array of legal conclusions and factual allegations under
the
heading
briefing
"Causes
Defendants'
of
Action."
motions
(See Compl.
for
judgment
55
on
144-79.)
the
In
pleadings,
Plaintiff contends that the Complaint raises the following claims:
breach of
contract,
O.C.G.A. § 13-1-11,
conversion,
violation of
RESPA,
violation of
and violation of O.C.G.A. § 7-14-17.
On April 23, 2010, Cenlar filed its Answer in Superior Court.
(Doc.
no.
1,
Ex.
3
at
41.)
On
November
22,
2011,
BANA,
as
3 Notably, the Complaint is almost identical to the Adversary Complaint
filed in the bankruptcy proceeding.
(Compare Bankr. Adv. doc. no. 1.) BANA and
Cenlar
contend
Complaint.
that
the
Complaint
is
(Doc. no. 5, Ex. 1 at 3.)
an
"exact
replica"
of
the
Adversary
Significant portions of the complaints
are identical, but they are not completely duplicative.
successor to LaSalle,
83.)
On
motion to
21,
§§
2012,
1331,
December
dismiss
filed its Answer in Superior Court.
29,
in
2011,
CMI,
as
successor
Superior Court.
(Id.
at
to
On
at
filed
ABN,
93.)
(Id.
a
November
CMI removed the case to this Court pursuant to 28 U.S.C.
1441.
(Doc.
no.
1.)
On
November
Cenlar filed a joint motion to dismiss.4
28,
2012,
(Doc. no. 5.)
BANA
and
Discovery
was partially stayed pending resolution of this motion to dismiss.
(Doc.
no.
19.)
On April 24,
on the pleadings.
II.
The
Procedure
legal
12(c)
(Doc.
no.
2013,
CMI filed a motion for judgment
22.)
MOTION FOR JUDGMENT ON THE
standards
motions
applicable
for
PLEADINGS
to
judgment
Federal
on
the
STANDARD
Rule
pleadings
of
Civil
and
Rule
12(b) (6) motions to dismiss are the same.
Roma Outdoor Creations,
Inc. v. City of Cumming,
2d 1283,
2008)
("A motion for
Ga., 558 F.
Supp.
1284
(N.D. Ga.
judgment on the pleadings is subject to the
4 Plaintiff contends that BANA and Cenlar's motion to dismiss was untimely
because it was filed after their responsive pleadings were filed contrary to
Federal Rule of Civil Procedure 12(b), which requires that 12(b)(6) motions be
made before any responsive pleading.
(Doc. no. 10 at 2.)
BANA and Cenlar argue
that their Answers complied with Georgia procedural rules and preserved their
defense that Plaintiff failed to state a claim.
Failure
to
submit
a
Rule
12(b)(6)
(Doc. no. 11 at 2 n.2.)
motion
before
pleading
is
not
necessarily fatal.
A defendant retains the right to raise the defense of
failure to state a claim by filing a motion for judgment on the pleadings,
pursuant to Rule 12(c), after the pleadings are closed but early enough not to
delay trial. Stevens v. Showalter, 458 B.R. 852, 856 (D. Md. 2011) (citing Fed.
R. Civ. P. 12(h)(2)(B)). Thus, many courts have concluded that an untimely Rule
12(b)(6) motion may be construed as a Rule 12(c) motion for judgment on the
pleadings.
Id^; see, e.g., In re Brown, 457 B.R. 919, 924 (Bankr. M.D. Ga.
2011) (concluding that the defense of failure to state a claim is not waivable
and Rule 12(b)(6) motions "filed after the pleadings are closed 'will be treated
as a motion for judgment on the pleadings based on a failure to state a claim on
which relief may be granted'" (quoting Jones v. Greninger/ 188 F.3d 322, 324
(5th Cir. 1999)). Accordingly, the Court will construe BANA and Cenlar's motion
to dismiss as a motion for judgment on the pleadings.
same standard as is a Rule 12(b)(6) motion to dismiss.")
for judgment on the pleadings,
like a motion to dismiss,
legal sufficiency of the complaint,
ultimately
232, 236
in
the
light
its
(1974).
complaint
most
Ramsey,
need
prevail
on
the
and
well-pled
not whether the plaintiff will
merits.
construe
favorable
accept
tests the
Scheuer
v.
Rhodes,
416
U.S.
The court must accept as true all facts alleged
to
312 F.3d 1222,
not
A motion
the
all
the
1225
plaintiff.
(11th Cir.
complaint's
facts.
reasonable
Ashcroft
v.
See
2002).
legal
inferences
The court,
556
the
Hoffman-Pugh
conclusions
Iqbal,
in
as
U.S.
v.
however,
true,
662,
only
678-79
(2009).
A
complaint
also
must
"contain
sufficient
factual
matter,
accepted as true,
^to state a claim to relief that is plausible on
its
at
U.S.
face.'"
544,
"factual
Id.
570
content
inference
that
alleged."
Id.
^probability
678
(citing Bell Atl.
(2007)).
that
the
The
allows
defendant
"The
plaintiff
the
court
is
plausibility
requirement,'
but
it
Corp.
is
to
liable
standard
asks
for
v. Twombly,
required
draw
for
is
more
possibility that a defendant has acted unlawfully."
the
to
550
plead
reasonable
the
misconduct
not
akin
than
Id.
a
to
a
sheer
III.
DISCUSSION
A. Shotgun Pleading
2. Arguments
BANA
pleading"
and
Cenlar
consisting
argue
of
that
the
Complaint
unorganized paragraphs
is
"shotgun
often
of
a
rambling
and incomprehensible allegations.
They contend that this warrants
dismissal
with
no.
response,
Plaintiff
prejudice.
incomprehensible,
(Doc.
argues
that
is
because
it
1
at
10-12.)
the Complaint
if
5,
Ex.
is
confusing or
Defendants'
accounting procedures do not make sense.
In
correspondence
(Doc.
no.
and
10 at 6, 8-9.)
The Court generally agrees with BANA and Cenlar that the Complaint
constitutes
is to
order
a shotgun pleading,
repleading,
as
but
concludes
that proper remedy
opposed to dismissing
the
case
with
prejudice.
2. Standard
The typical shotgun complaint "contains several counts, each
one
incorporating
predecessors."
Kellogg Corp.,
to
a
by
reference
Strategic
Income
Fund,
305 F.3d 1293, 1295
situation
where
most
of
the
allegations
LLC
v.
Spear,
(11th Cir. 2002).
the
counts
factual allegations and legal conclusions."
its
Leeds
&
This leads
"contain
Id.
of
irrelevant
The underlying
problem is that the shotgun complaint "fails to link adequately a
cause
of
action
Horizon Pharm.
to
its
Corp.,
also Anderson v.
Dist.
464
factual
predicates."
F.3d 1273,
1275
Wagner
(11th Cir.
Bd. of Trustees of Cent.
Fla.
v.
First
2006);
Cmty.
see
Coll./
77 F.3d 364,
perfect
366 (11th Cir.
example
impossible
to
of
1996)
^shotgun'
know
which
("[Plaintiffs]
pleading
allegations
support which claim(s)
for relief."
Pelletier
921
v.
(describing
"rambling
be
to
Laminack,
1,
facts
the
No.
2013)
causes
the
2:12-CV-387,
("What
inclusion of
of
presented
particular
makes
action
defendant's
such
task
of
a
and unrelated
the
claims
defending
against
1991)
replete
with
could
[to]
sift
which
were
[itself]
asserted");
^shotgun'
made
Cir.
court
at *17
facts
to
that
"district
action
virtually
intended
(11th
allegations
for
is
citation omitted));
1517-18
decide
cause
are
pleadings"
the
pleading
that
in
and
fact
2013 WL 1345193,
a
irrelevant
1465,
force
it
(internal
"factual
that
that
of
shotgun
and
material"
the
material
F.2d
"quintessential
recitations"
possibly
through
Zweifel,
in
complaint is a
(S.D.
Bates
Tex.
pleading
not
are
tied to
is
v.
Apr.
is
the
specific
indeterminate
them
not
and
significantly
impaired.").
In conjunction with failing to link causes of action to their
factual
predicates,
another
common
problem
found
in
shotgun
pleadings is failing to organize the various claims as separate
counts.
Rule 8(a)(2) requires "a short and plain statement of the
claim,"
and
Rule
promote clarity,
occurrence
10(b)
instructs
that,
"[i]f
doing
so
would
each claim founded on a separate transaction or
. . . must be stated in a separate count or defense."
Fed. R. Civ.
P. 8(a)(2),
10(b)
(emphasis added).
These rules work together to require the pleader to
present his claims discretely and succinctly, so that
his adversary can discern what he is claiming and frame
a responsive pleading, the court can determine which
facts support which claims and whether the plaintiff has
stated any claims upon which relief can be granted, and,
at trial,
relevant
Davis
v.
Coca-Cola
(11th Cir.
1082-83
the
the court can determine that evidence which is
and that
2008)
(11th
framers
is
Bottling
not.
Co.
Consol.,
(quoting Fikes v.
Cir.
of
which
1996));
the
Federal
see
City of
also
Rules
516
of
id.
Daphne,
at
Civil
F.3d
979-80
955,
79
980
F.3d 1079,
(stating
Procedure
n.57
would
that
"roll
over in their graves" upon reading a complaint containing "untold
causes of action,
Rule
10(b));
2001)
bunched together in one count"
Maqluta v.
(vacating
shotgun
all
Samples,
judgment
complaint
and
"buried"
256
F.3d
1282,
1284
remanding
for
material
contrary to
(11th Cir.
repleading
allegations
where
"beneath
innumerable pages of rambling irrelevancies" in complete disregard
of Rule 10(b)).
Additionally, shotgun complaints "often fail to specify which
claims are brought against which defendants."
Skyventure Orlando,
LLC v. Skyventure Mqmt., LLC, No. 6:09-CV-396, 2009 WL 2496553, at
*6 (M.D. Fla. Aug. 12, 2009)
In such a case,
the
(citing Magluta, 256 F.3d at 1284).
Eleventh Circuit held
that
a trial
court
properly ordered plaintiff to amend her complaint to specify which
of her claims were against which defendants and to segregate the
relevant
facts
to
each
claim.
See
Beckwith
v.
Telecomms. Inc., 146 Fed. Appx. 368, 372 (11th Cir. 2005).
Bellsouth
The
Eleventh
Circuit
"has addressed the
topic
of
shotgun
pleadings on numerous occasions in the past, often at great length
and always with great dismay."5
F.3d
at
1296
n.9.
judicial system."
2001) .
There
pleading.
judicial
Strategic Income Fund, LLC,
"[S]hotgun
pleadings
wreak
Byrne v. Nezhat, 261 F.3d 1075,
are
resources
unacceptable
shotgun
First,
many
pleadings
into
disputes
sift
Shotgun
through
allegations
pleadings,
the
are
if
facts
"divert
that
tolerated,
presented,
material
to
the
1130
not
particular
464
itself
causes
of
(many of which may be foreclosed by defenses),
out
irrelevancies
-
"a
task
that
can
be
F.3d at
courts
asserted
the
shotgun
stretched
trial
for
the
structurally
Wagner,
require
decide
of
already
are
on
(11th Cir.
consequences
prepared to use those resources efficiently."
1279.
havoc
305
to
which
action
and sift
quite
onerous."
Strategic Income Fund, LLC, 305 F.3d at 1295 & nn. 9-10 (citations
omitted);
see
also
Byrne,
261
F.3d
at
1131
("The
time
a
court
spends managing litigation framed by shotgun pleadings should be
devoted to other
cases
waiting to be heard.").
wasting trial court resources,
and
litigants'
resources,
In addition to
shotgun pleadings waste attorneys'
inexorably
broaden
the
scope
of
discovery, wrongfully extort settlements, wreak havoc on appellate
court dockets,
and undermine the public's respect for the courts.
See Davis, 516 F.3d at 981-83; Anderson, 77 F.3d at 367.
5 Indeed, since 1985 the Eleventh Circuit has "explicitly condemned
shotgun pleadings upward of fifty times." Davis, 516 F.3d at 980 n.54.
10
3. Analysis
Although the Complaint is detailed in some respects,
highly
disorganized
allegations
is
an
that
untangling
unmanageable
task.
and
Though
it is so
deciphering
the
the
Complaint
does
not incorporate allegations of prior claims into subsequent claims
as
in
a typical
shotgun
complaint,
it
exhibits
some
of
the
even
more severe symptoms of shotgun pleading.6
Contrary to Rule 10(b),
the
cause
Complaint
separate count.
F.3d at 1284.
conclusions
"Causes
of
does
not
See Davis,
Instead,
and
set
each
516 F.3d 955,
of
action
980 & n.57;
in
Magluta,
a
256
the Complaint chaotically sets forth legal
factual
Action."
forth
allegations
(See
Compl.
in
n
a single
144-79.)
section entitled
As
in
Davis,
516
F.3d at 980,
untold causes of action are "bunched together in one
count."
is
It
not
even
clear
what
causes
of
action
have
been
raised in this case.7
Additionally, the Complaint fails to clearly
specify which claims
are brought
Beckwith, 146 Fed. Appx.
2496553,
against
which
Defendants.
at 372; Skyventure Orlando,
See
LLC, 2009 WL
at *6.
Most importantly,
the Complaint fails to adequately link the
causes of action to their factual predicates.
In Wagner, 464 F.3d
at
that
1279,
"[t]he
central
problem
[was]
the
factual
6 To incorporate by reference, the claims would have to be organized into
separate counts.
Here the claims are jumbled together in one section without
any perceptible attempt at organization.
7 For example, in briefing the motions for judgment on the pleadings, the
parties bicker whether the Complaint sets forth a cause of action for violation
of O.C.G.A.
§
7-14-17.
11
particularity of the first 175 paragraphs [was]
not connected to
the otherwise generally pled claim in any meaningful way."
This
case
that
is
strikingly
similar.
"[T]he
problem
[is]
not
[Plaintiff] did not allege enough facts, or failed to recite magic
words;
the
great
problem
deal
of
[is]
factual
that
while
[Plaintiff]
allegations,
the
introduce[s]
[Complaint
does]
clearly link any of those facts to its causes of action."
1280.
Further,
causes
of
a proper complaint
action;
elements of
the
it
should
claims
link
a
not
Id.
at
should not only link facts to
specific
asserted.
Id.
at
facts
to
1279.
each
In
this
of
the
regard,
the Complaint completely misses the target.
Faced with
sift
through
these
the
critical
deficiencies,
Complaint's
179
the
paragraphs
Court
and
refuses
70
to
exhibits,
hunting and pecking for allegations that could be material to each
cause
of
action.
pleadings,
the
In
briefing
parties
the
attempt
motions
to
for
gather
judgment
the
and
nature
of
Plaintiff's
claims,
factual predicates,
are still in disarray.
established
complaint
that
a
may
not be
opposition to a motion to dismiss.
Thomasville,
(M.D. Ga. Aug.
Ga.,
No.
7:07-CV-173,
as
amended
Walker v.
2008
well
Moreover,
WL
by
the
Complaint's
scattershot allegations and create order from the chaos.
the scope
on
However,
as
their
it is wella brief
in
SunTrust Bank of
4004714,
at
*3
n.l
26, 2008).
Plaintiff argues that the Complaint is not a shotgun pleading
because
Defendants
addressed
his
12
claims
in
their
Answers
and
motions
for
However,
judgment
the
fact
on
that
the
pleadings.
Defendants
(Doc.
attempted
no.
at
8.)
respond
to
10
to
the
Complaint does not negate the fact that it is a shotgun pleading.
See
Davis,
516
at
983-84
purporting
complaint
F.3d
to
combine
eight plaintiffs,
statement
("[D]efense
in
one
counsel,
count
faced
multiple
with
claims
a
of
should have moved the court for a more definite
pursuant
to
Federal
Rule
of
Civil
Procedure
12(e),"
rather than filing a responsive answer.); Anderson,
77 F.3d at 367
(criticizing
of
defendants
for
more definite statement);
Rule
12(e)
answer
motion
the
amended
effect joined the
for
filing
Byrne,
a more
complaint
answer
instead
261 F.3d at 1129
definite
in
this
statement
fashion,
plaintiff in setting the
moving
for
("By eschewing a
and
the
choosing
to
defendants
in
stage for
the
immense
and unnecessary expenditure of resources evident in this case.").
4. Remedy
Though the Complaint is a shotgun complaint,
the case should
not be dismissed with prejudice, as urged by BANA and Cenlar.
proper remedy is to order repleading.
Wagner,
The
464 F.3d at 1280.
District courts have a "supervisory obligation to sua sponte order
repleading pursuant to Federal Rule of Civil Procedure 12(e)
when
a shotgun complaint fails to link adequately a cause of action to
its factual predicates."
1133
Id. at 1275; see also Byrne,
261 F.3d at
("As we have stated on several occasions over the past twelve
years, if, in the face of a shotgun complaint, the defendant does
not move the district court to
require a more definite statement,
13
the court,
sua
in the exercise of its inherent power,
sponte
and
order
a
repleader.");
Davis,
must intervene
516
F.3d
at
984
(same).
Indeed,
error.
failure to order repleading may constitute reversible
See,
dismissal
of
clearly in
definite
e.g.,
Wagner,
this
Rule
case
464 F.3d at 1280
because
these
("We disagree with the
observations
sound
12(e)'s remedy of ordering repleading for a more
statement
of
the
claim,
rather
than
in
Rule
remedy of dismissal for failure to state a claim," at
there
was
"no
complaint.");
and
remanded
plaintiffs
repeated
Magluta,
with [shotgun]
more
failure
...
256 F.3d-at
to
1284
draft
12(b) (6)'s
least where
a
conforming
("In the past when faced
complaints like this one, we have vacated judgments
with
to
instructions
replead
their
that
the
claims.
district
That
is
court
the
require
appropriate
disposition here." (citations omitted)).
5. Repleading" Instructions
In
filing
an
Amended
another shotgun complaint.
Complaint,
Plaintiff
must
not
file
The Amended Complaint should set forth
each cause of action in a separate count and clearly specify which
causes of action apply to which Defendants.
Within each separate
count,
Plaintiff should allege factual support for every cause of
action
asserted,
causes
of action.
and, more
specifically,
Plaintiff must
not
for each element of the
rely
on
legal
conclusions
unconnected to the factual predicates of his claims and should
avoid incorporating factual allegations by reference.
14
In short,
Plaintiff must spend time organizing the allegations before filing
the
Amended
Complaint.
Also,
Plaintiff
should
make
sure
the
Amended Complaint's exhibits are organized and clearly labeled.8
Implicit in any court's order to replead "is the notion that
if
the
plaintiff
filing
a
strike
his
his
repleader
case
Byrne,
fails
261
explicit.
with
pleading
and
to
F.3d at
Before
the
or,
consider
comply
same
1133.
on
the
imposition
Here,
the
court's
deficiency —
depending
the
with
the
of
monetary
the Court makes
assure
that
the
evidentiary support.
261 F.3d at 1133 n.113
claims
are
See Fed.
R.
warranted
Civ. P.
by
notion very
the
law
court's
inherent
and
11(b)
have
see also Byrne,
(District court should strike complaint and
Observing these guidelines
litigation
should
Additionally,
could in good faith make
the representations required by Fed. R. Civ. P. 11(b)."9
"satellite
dismiss
Plaintiff
11(b);
by
should
fulfill her obligations under Rule
instruct counsel to replead "if counsel
added)).
—
sanctions."
this
be careful to comply with the Court's instructions.
and
court
circumstances,
filing the Amended Complaint,
Plaintiff's counsel must
order
under Rule 11,
power,"
and
should curtail
28 U.S.C.
minimize
§
counsel's
(emphasis
the need for
1927,
and
or the
client's
"exposure to a criminal contempt citation"10 and "post-litigation
8 As filed on the docket,
many labels on the Complaint's exhibits have
been partially or completely cut off along the bottom margin of the document.
9 Therefore,
Plaintiff may choose to not replead certain claims if they
are not sufficiently supported by fact or law.
10 "If use of an abusive tactic [like shotgun pleadings] is deliberate and
actually impedes the orderly litigation of the case, to wit: obstructs justice,
15
tort actions for abuse of process or malicious prosecution."
at
Id.
1133.
In the subsequent sections, the Court will make more specific
observations
regarding
the
Complaint's
allegations
and
issues
raised in the motions for judgment on the pleadings and responses
thereto.
Due
Complaint,
the
to
the
Court
overall
cannot
structural
express
merits of the claims asserted.11
However,
help
definitive
of
the
on
the
opinion
See Wagner, 464 F.3d at 1279-80.
by addressing specific deficiencies at this time,
the
during
a
deficiencies
parties
to
repleading.
avoid
This
committing
will
the
hopefully
same
narrow
mistakes
the
promote
judicial efficiency over the course of this
Chapman
v.
AI
Transp.,
(urging district
courts
229
F.3d
"to take
1012,
a
1027
it may
(11th
again
issues
case.
12
Cir.
and
See
2000)
firm hand and whittle
cases
down to the few triable claims" in cases with shotgun pleadings).
B.
One
Res
Judicata
issue
raised by BANA and Cenlar is whether
claims are barred by
(1)
Plaintiff's
the Bankruptcy Court's January 28,
Order on Plaintiff's objection to ABN's arrearage claims
2005
(bankr.
the perpetrator could be cited for criminal contempt." Id. at 1131-32 (footnotes
omitted).
11 The Court stresses that the observations in the following sections are
not final adjudications on the merits, and the Court will evaluate the Amended
Complaint as it stands by itself, if and when appropriate.
12 The Court does not address all of the issues raised in the motions for
judgment on the pleadings and responses thereto. Instead, the Court focuses on
specific pleading deficiencies and aspects of the case which have the potential
to significantly narrow the issues.
Some of the issues raised simply require
better pleading (and briefing) before the Court can even attempt to determine
the legal sufficiency of the claims asserted.
16
doc.
no.
34),
granting ABN,
or
(2)
the Bankruptcy Court's March 26,
LaSalle,
and Cenlar's motion to dismiss
2009 Order
Plaintiff's
Adversary Complaint (bankr. adv. doc. no. 23).
"Under res
judicata,
also known as claim preclusion,
a final
judgment on the merits bars the parties to a prior action from relitigating a cause of action that was or could have been raised in
that
action."
(11th Cir.
if
the
In
2001) .
re
Piper
Aircraft
Corp.,
244
F.3d
1289,
1296
Claim preclusion may be properly applied only
following
prerequisites
are
met:
"(1)
the
prior
decision
must have been rendered by a court of competent jurisdiction;
there
must
have
been
a
final
judgment
on
the
merits;
(2)
(3)
both
cases must involve the same parties or their privies; and (4)
both
cases must involve the same causes of action."13
next
determines
whether
the
claim
in
have been raised in the prior action;
judicata applies."
Id.
the
suit
"The court
was
or
could
if the answer is yes, res
At all times, the burden is on the party
asserting res judicata (here, Defendants)
filed suit is barred.
new
Id.
to show that the later-
Id.
The Bankruptcy Court's March 26,
2009 Order in the adversary
proceeding declined to rule on Plaintiff's non-bankruptcy claims
(i.e.
the same claims raised in the present case)
jurisdiction.
for lack of
(See Bankr. Adv. doc. no. 23 at 28-30.)
Thus, that
Order cannot represent a final judgment on the merits by a court
13 Claims
are part
of the
same cause of action
for
claim preclusion
purposes when they arise out of "the same transaction or series of transactions"
or "the same nucleus of operative fact."
17
Id. at 1296-97.
of
competent
jurisdiction,
and
the
first
two
elements
of
claim
preclusion have not been met.
However,
resolving
the
Bankruptcy
Plaintiff's
confirmation
was
entered
Order
objection
arrearage
prelusion elements.
by
a
claims
a
to
of
final
ABN's
doc.
competent
judgment
898
court's
same
F.2d
order
effect
merits.");
to
the
(Plaintiff
they
confirming
as
that
objections
Cenlar).
1550
any
a
plan
bankruptcy
claims
same
was
parties
and ABN),
as
well
the
merits
301,
the
Second,
of
is
given
on
6th Cir.
overruling
order).
Third,
ABN's
the
2003)
this
(CMI,
case
action
BANA,
Fourth, both cases involve the same cause of action
arise
transactions")
out
to
of
"the
the
extent
same
that
address pre-confirmation arrearages
transaction
or
the
in
claims
and conduct by
the
debtor's
bankruptcy
privies
II,
bankruptcy
judgment
(B.A.P.
the
the
Plaintiff's
("[A]
final
in
claim
the Order
order
those
pre-
Justice Oaks
1990)
303
Order
and
First,
In re
court's
as
all
reorganization
final
as
meet
34.)
Cir.
court's
a
to
Cf.
of
298 B.R.
2005
jurisdiction.
on
(11th
district
In re Morton,
(holding
involves
1544,
28,
pre-petition
no.
objection to ABN's arrearage claims.
Ltd.,
January
appears
(See Bankr.
court
represents
Court's
series
this
and
(as
of
action
Defendants.
14 The Bankruptcy Court made a similar determination during the adversary
proceeding.
In ruling on the bankruptcy causes of action, the Bankruptcy Court
stated:
Any
issue
regarding the pre-confirmation allocation of payments
and should have been, addressed at the hearing on
the objection to the claim.
In [this adversary proceeding], Debtors
could have been,
[including Plaintiff]
filed an objection to claim,
18
asserting they
Thus,
in
this
action,
any
claim predicated
on
pre-confirmation
conduct by Defendants is precluded because it "was or could have
been
raised"
by
Plaintiff when
objecting
to ABN's
claim in
the
bankruptcy proceeding.
As
BANA
and
Cenlar
rightly
meaningful
attempt
in
his
Defendants'
pre-confirmation
point
out,
to
Complaint
and
Plaintiff
distinguish
post-confirmation
makes
no
between
conduct.
At
least some of the claims in the "Causes of Action" section appear
to
be
predicated
on
2004 confirmation.
Defendants'
(See,
e.g.,
conduct
Compl.
before
the
SISI 147-50.)
September
9,
In repleading,
Plaintiff should avoid relying on pre-confirmation conduct as the
factual predicates for the claims asserted.15
BANA and Cenlar also
their
motion
collateral
to
raise
dismiss.
estoppel
a
collateral
However,
requires
that
an
estoppel
unlike
claim
identical
defense
in
preclusion,
issue
have
been
actually litigated and decided in a prior proceeding by the same
parties or their privies.
See U.S. v. Weiss,
(11th
the
Cir.
2006).
As
Bankruptcy
were not liable for an arrearage claim.
467 F.3d 1300, 1308
Court
never
actually
A hearing was set and the
parties entered into a consent order whereby the Debtors acknowledged
an arrearage of $1,428.95.
As such, the issue of pre-confirmation
arrearage was addressed and resolved by this previous court order and
cannot be relitigated now.
(Bankr. Adv. doc. no. 23 at 9 (citations omitted)); see also id. at 10-11
(noting that ABN's proof of claim itemized pre-petition and preconfirmation expenses relating to Plaintiff's mortgage loan).
15 Plaintiff may, of course, provide a factual and procedural background
that encompasses pre-confirmation conduct, but the claims themselves should be
predicated on post-confirmation conduct to avoid claim preclusion issues.
19
litigated
and
decided
the
legal
sufficiency of
Plaintiff's
non-
bankruptcy causes of action, collateral estoppel is inapplicable.
C. Breach of Contract
The elements for a breach of contract claim in Georgia16 are
(1)
breach and
right to
LLC v.
the
breached."
243,
246
308 Ga.
damages
"specific
App.
316,
(3)
to a party who has
Co.
(2011).
the
Duke Galish,
The plaintiff must
provision
which
was
v. Dep't of Transp.,
allegedly
218 Ga.
App.
(1995).
reviewed
motions
Plaintiff,
for
the
as
Complaint
judgment
to
on
the
as
to
breached.
which
parties'
pleadings,
Court
of
the
avoid
have
it
Complaint's
Further,
which provisions
To
the
the
the breach of contract claim.
confusion
and
and
Defendants,
conclusions
been
320
contractual
Holloway Constr.
Having
the
resultant
complain about the contract being broken.
Manton,
identify
(2)
apparent
arrived
at
paragraphs
on
that
divergent
relate
to
there is a great deal of
of the
repetition
is
briefing
contract
of
this
have
allegedly
predicament,
the
Amended Complaint must be better organized and more clear.
The Complaint,
contract
such
as
by
in part,
charging
attorney's
alleges that Defendants breached the
Plaintiff
fees
in
unauthorized
connection
proceeding and property inspection fees.
58,
163-64,
170-74.)
with
and
the
expenses,
bankruptcy
(See Compl. OT 144, 157-
Plaintiff merely identifies various charges
16 The contract at issue, the Security Deed,
(See Compl.,
fees
Ex. A 1 14.)
20
is governed by Georgia law.
and brazenly asserts
contract.
that
charges
are
in violation
of the
This manner of pleading is unacceptably conclusory.
the Amended Complaint,
articulate
contract.
these
how
Plaintiff should - if permitted by Rule 11
these
Plaintiff
In
charges
should
constitute
consider
a
whether
breach
the
Security Deed contradict Plaintiff's allegations.
of
terms
of
the
the
For example:
If Borrower [fails to make certain payments, breaches
the agreement,] or there is a legal proceeding that may
significantly affect Lender's rights in the Property
(such as a proceeding in bankruptcy . . .), then Lender
may do and pay whatever is necessary to protect the
value
of
the
Property and Lender's
rights
in
the
Property ....
Any amounts disbursed by Lender under
this paragraph shall become an additional debt of
Borrower and be secured by this Security Instrument.
These
amounts
shall
bear
interest
from
the
disbursement at the Note rate, and at the
Lender shall be immediately due and payable.
(Compl., Ex. A SI 7 (emphasis added)).
date
of
option
of
According to this term, the
Security Deed expressly allows Defendants to charge Plaintiff fees
in order to protect their interests in a bankruptcy action.
The Complaint also alleges that Defendants failed to credit
payments and misapplied payments made by Plaintiff.
35 148-55,
178-79.)
the pleadings,
In response to the motions
payments
premiums,
for judgment on
Plaintiff argues that these allegations support a
breach of contract claim.
at 7, 10.)
(See Compl.
(See Doc. no. 10 at 10-11;
Doc. no. 23
The Security Deed provides that the Lender shall apply
in
(2)
the
to
following
any
order:
taxes,
(1)
special
to
mortgage
insurance
assessments,
leasehold
payments, ground rents, or hazard insurance,
21
(3) to interest due
under
the
Note,
(4)
to principal
charges under the Note.
of the
Note,
(Compl., Ex. A. 3 3.)
and
(5)
to
late
At no point in the
Complaint or in briefing the motions for judgment on the pleadings
has Plaintiff adequately explained how Defendants'
payments
breached
this
provision
or
other
application of
provisions
of
the
Security Deed.
Plaintiff
also
argues
that
Defendants
breached
by charging Plaintiff for force-placed insurance.
8-9.)
Action"
but
these
allegations
are
84-92,
Deed,
charge
not
found
section and are not presented in
the applicable contractual terms.
(Doc. no. 23 at
the
100-01,
Lender
Plaintiff
104,
is
113.)
permitted
for
the
(See Compl.
Under
to
hazard
the
pay
4,
7.)
in
the
"Causes
of
conjunction with any of
33 23,
terms
for
insurance
of
hazard
if
carry hazard insurance approved by the Lender.
2,
contract
The Complaint contains numerous references to forced-placed
insurance
70,
the
52-54,
the
Security
insurance
Plaintiff
69-
did
and
not
(See id., Ex. A 35
Plaintiff alleges that ABN sent numerous notices that
it would be force-placing insurance and that it had force-placed
insurance.
of
the
(See id^ 33 69-70,
notices
(See id.)
ask
Plaintiff
Plaintiff does
insurance for one year.
84-86,
to
allege
88-89,
send proof
100-01,
of
113.)
coverage
to
Many
ABN.
that he carried his own hazard
(See id. 3 90.)
However,
Plaintiff never
alleges that he notified ABN about this insurance policy or that
the insurance policy and provider were approved by ABN as required
22
by the
Security
Deed.
(See
id.,
Ex.
A
3
4.)
As
a
result,
the
force-placed insurance allegations are critically deficient.
Though not
for
judgment
"Causes
to
on
the
of Action"
specific
alleges:
two
relied upon by Plaintiff
pleadings,
section of
provisions
"Contrary to
paragraph
the
the
Security
defendants to plaintiff."
(Id.
3 166.)
Security Deed page two number four."
(Id.
paragraphs
a
paragraphs
First,
in
the
Plaintiff
the Security Deed page
delinquency
note
and
sign
of
supplemental
pages
to
two
Deed.
requirements of
notice
asked
are
briefing the motions
the Complaint which actually refer
no
never
three,
of
there
in
was
Second,
as
issued
"Plaintiff was
referenced
3 167.)
cited contain no reference
by
to
in
the
However,
the
a notice
of
delinquency or supplemental note.
In
summary,
allegations
are
many
of
conclusory
Plaintiff's
and
appear
actual terms of the Security Deed.
to
breach
be
of
contract
foreclosed
by
the
Yet, given the discombobulated
state of the initial Complaint, it is impossible to unravel which
allegations support this claim and tie those allegations to their
factual
predicates.
The
Court
will
not
tolerate
such
sloppy
pleading in the Amended Complaint.
D. Conversion
Conversion
involves
an
"unauthorized assumption and exercise
of the right of ownership over personal
another, in hostility to her rights."
App.
613,
615 (2004) .
property belonging
to
Habel v. Tavormina, 266 Ga.
"If [the defendant] has a right to assert
23
ownership,
the
constitute
conversion."
possession
of
exercise
demand
of
for
its
283,
Ga.
dominion
Id.
disputed
and
and
v.
2004)
is
When
not
no
a
wrongful
someone
property,
thus
return
Johnson
(N.D.
(1976));
the
of
dominion
property."
1372
act
comes
there
conversion
refusal
to
Citimortgage,
Inc.,
(citing McDaniel
v.
is
"in
351
White,.
(2007)
("Demand
and
refusal
is
lawful
absence
the
Supp.
140 Ga.
Inc.,
necessary
not
unauthorized
the
F.
does
into
no
return
see also Williams v. Nat'1 Auto Sales,
285
and
of
personal
2d
1368,
App.
287 Ga.
only
a
118
App.
when
defendant comes into possession of the property lawfully.
the
What is
meant by defendant coming lawfully into possession of the property
is, where he finds it,
he
obtains
the
and retains it for the true owner,
possession of
the
property,
by
or where
the permission
or
consent of the plaintiff." (emphasis in original)).
According to the allegations here,
into
possession
Therefore,
of
Plaintiff
Plaintiff's
must
allege
Defendants initially came
check
and
payments
eventually
lawfully.
prove
the
following elements: (1) ownership or title in the plaintiff to the
disputed
property,
or
the
possession of the property;
by the defendant;
the property;
and
(5)
the
(4)
value
(3)
(2)
plaintiff's
right
to
immediate
actual possession of the property
demand by the plaintiff for the return of
the defendant's refusal to return the property;
of
the
property.
Eleison Composites,
LLC
Wachovia Bank, N.A., 267 Fed. Appx. 918, 923 (11th Cir. 2008).
24
v.
Plaintiff's
misapplication
expenses;
of
(2)
and
(3)
59,
168-69,
claims
for
payments
to
conversion
charges
failure
to credit payments.
177.)
in
adequately
contrary
charge
bankruptcy,
the
conversion claim,
element:
to
explain
to
premised
unauthorized
on
(1)
fees
and
"suspense" account;
(See Compl.
33 148-55,
157-
Regarding the misapplication of payments,
Defendants
interests
for
misapplication of payments to a
Court explained in Section III.C.
allows
are
how
and
that the Security Deed expressly
Plaintiff
the
Defendants'
Security
the
fees
Complaint's
to
allegations
application
Deed.
Thus,
protect
of
when
their
do
payments
applied
not
were
to
the
Plaintiff has not sufficiently alleged the first
ownership
disputed property.17
or
right
to
immediate
possession
of
the
Regarding the failure to credit payments, the
allegations are more straightforward, but Plaintiff still needs to
isolate and present
specific instances of Defendants'
failure
to
credit payments and properly tie the facts to each element of the
conversion claims.
Both motions for judgment on the pleadings call attention to
Plaintiff's
failure
to
plead
the
third
element:
demand
for
the
return of the property.
In response,
Plaintiff argues that "Hand
has
attempts
have
documented
numerous
to
his
payments
properly
17 In responding to BANA and Cenlar's motion for judgment on the pleadings,
Plaintiff
states:
"Hand has
attached sufficient
documents
to
the
complaint
to
prove that unauthorized fees and expenses were assessed to his account. . . .
When taken as true, these allegations will state a claim for conversion."
(Doc.
no. 10 at 13.)
It is not the Court's duty to sift through over two hundred
pages of exhibits and build Plaintiff's case for him.
The Complaint must
clearly link factual allegations to each element of each claim as applied to
each Defendant.
25
applied to his
[Complaint]
Again,
- the biggest of which was
filed in Bankruptcy Court."
(Doc.
the Adversary
no.
23
at
14-15.)
the Court will not sift through the Complaint's 70 exhibits
searching
As
account
to
for
the
authority
some
evidence
Adversary
that
of
Plaintiff's
Complaint,
the
Adversary
that
demand
Plaintiff
Complaint
Plaintiff's
on
has
Defendants.
identified
satisfies
the
no
demand
element.18
CMI
argues
because
money
conversion,
cannot
unless
identifiable
fund.
be
the
the
conversion
subject
allegedly
(Doc.
no.
of
converted
22
at
claims
a
civil
money
13.)
are
is
improper
action
a
Similarly,
for
specific,
BANA
and
Cenlar argue that Plaintiff fails to allege exactly how much money
has been converted or attempt to itemize or calculate this figure.
(Doc.
no.
11 at
"there can be
there
is
7.)
no
an
Defendants are
conversion action
exception
compromises "a specific,
Powertel,
Inc.,
250 Ga.
for
the
separate,
App.
356,
partially correct.
for money damages
conversion
of
for money,"
money
identifiable fund."
359
(2001) .
that Defendants converted specific checks,
Although
if
it
Taylor v.
Plaintiff alleges
and the Georgia Supreme
Court has held that "a specific check or negotiable instrument can
be
the
subject
of
conversion,"
because
it
designates
specific
18 Currently, the issue of whether the Adversary Complaint constitutes a
demand is inadequately briefed.
If the issue is presented again after
repleading, the Court expects better briefing by both parties.
As a starting
point, the parties should reference: Harpagon Co., LLC v. Freeman, 281 Ga. 531,
532 (2007); McDaniel v. White, 140 Ga. App. 118, 119 (1976); Stephens v.
Millirons Garage, Inc., 109 Ga. App. 832, 833 (1964); King v. Loeb, 93 Ga. App.
301, 305 (1956); cf. SunTrust Bank v. Hightower, 291 Ga. App. 62, 67 (2008).
26
amounts of money for use for specific purposes.
Co.
v. McArthur Elec,
*10-11
v..
(N.D.
Ga.
Jan.
Wachovia Bank,
Moreover,
conversion
similar
30,
claims
LP,
conversion
lender's
claim
at
conversion
sufficient
case.
credit
of
fact
lender's
alleged
v.
law
BAC
existed
motion
2012)
on
as
to
351
to
failed
in
Home
judgment
Johnson,
lender
that
(M.D. Ga.
summary
payments);
mortgage
plaintiff
1325-26
for
issues
Inc.
found
Georgia
Blackburn
2d 1316,
genuine
have
under
See
Ctr.,
at
(2003)).
Georgia
motion
(denying
where
819-20
in
F. Supp.
properly
2007 WL 295535,
(citing Decatur Auto
817,
this
lender's
to
1372
claim
to
where
failure
2d
2007)
legally
914
mortgage
1:06-CV-1512,
courts
were
circumstances
(denying
No.
N.A., 276 Ga.
district
Loans Servicing,
Supp.
Inc.,
Manhattan Constr.
F.
dismiss
to
apply
payments to his account even after plaintiff made repeated demands
to
have
the
support
applied).
Plaintiff's
arguments,
the
funds
Though these
conversion
claims
authorities
and
rebut
the Court cannot truly gauge the legal
conversion
claims
until
their
factual
appear to
Defendants'
sufficiency of
predicates
are
more
clearly alleged.
CMI
also
argues
that
some
of
Plaintiff's
are barred by the statute of limitations.19
12.)
"Actions
for
the
recovery
of
conversion
(Doc. no. 22 at 11-
personal
property,
damages for the conversion or destruction of the same,
brought within
four years
after the right of
19 Plaintiff did not respond to this argument.
27
claims
or
for
shall be
action accrues."
(See Doc. no. 23 at 14-15.)
O.C.G.A.
§
9-3-32.
"As
a
general
rule,
a
right
of
action
wrongful conversion accrues on the date of the conversion."
v.
Tucker,
Georgia
1992);
224
Marble
Ga.
App.
406
Corp.,
Holdings
404,
(1997);
960
F.2d
see also Kornegay v. Thompson,
(Conversion "statute of
Defendants'
conduct
is
four
before
years
March 2010.
(See Compl.
can
faith
in
good
statute
of
conduct
should
SISI
limitations,
be
in
2003,
the
these
Fed.
R.
alleged
of
Unless
that
see
2004,
filing
148-53.)
represent
not
Therrell
1560
157 Ga. App.
Logan
(11th
558,
559
v.
Cir.
(1981)
from the date of
At least some of the conversion claims are
predicated on
than
1555,
limitation began to run
demand and refusal.").
more
accord
for
as
the
2005,
which
Complaint
Plaintiff's
claims
Civ.
and
counsel
conversion
fall
within
11(b),
P.
then
in
in
the
the
this
Amended
Complaint.20
E. RESPA
In the Complaint,
of
RESPA
have
Plaintiff fails to specify which provisions
allegedly been
violated.
Consequently,
Plaintiff
fails to give Defendants adequate notice of the claim as required
by Federal Rule of Civil
alleges:
"Debtor's
Defendants'
debtor's
failure
account
loan
to
Procedure 8(a)(2).
is
subject
remove
results
in
to
the
The Complaint only
provisions
unauthorized fees
a
RESPA
defendants to damages under said act."
RESPA.
and expenses
violation
(Compl. n
of
and
from
subjects
175-7 6.)
20 To the extent permitted by Federal Rule of Civil Procedure 15(c),
Amended Complaint will relate back to the date of the original Complaint.
28
the
Aside from being conclusory and failing to reference specific
RESPA
provisions,
this
allegation
RESPA violation.
Under
certain duties
respond to
from a
to
borrower.
12
First,
does
U.S.C.
a
§
not
state
2605(e),
a
not
claim
loan
qualified written
Plaintiff does
a
response
to
corrections
in
a
the
QWR,
a
loan
account,
servicer
provide
the
a
servicer has
request
("QWR")
clearly allege which
of his communications to Defendants constitutes a QWR.21
in
for
may
make
borrower
Second,
appropriate
with
a
written
explanation or clarification of the reasons the servicer believes
the
account
is
information
correct,
requested
2605(e)(2)(A-C).
provided
by
Because
"detailed
"or"
provide
the
the
borrower
See
borrower.
Plaintiff
information
earlier
regarding
with
U.S.C.
12
alleges
debtor's
that
the
§
Cenlar
account,"
in
response to a QWR (Compl. 1 135 & Ex. SSS) , it appears that Cenlar
complied with its duty to respond under RESPA.
In response to BANA and Cenlar's motion for
pleadings,
Plaintiff
numerous ways.
argues
(See Doc.
that
no.
Defendants
10 at 12-13.)
violated
Yet,
violations are actually alleged in the Complaint.
CMI's
motion
for
judgment
on
the
judgment on the
pleadings,
RESPA
in
none of those
In response to
Plaintiff
concedes
21 Plaintiff alleges that he received a delinquency notice from ABN in
February 2004.
(Compl. $ 36.)
He allegedly sent that notice back to ABN with
a
hand-written
notation
that
he
did
not
understand
why
the
account
was
delinquent, did not want to lose his home, and "if there is anything else we can
provide you with, please call or send letter." (Id. 1 37, & Ex. R.)
Plaintiff
further alleges that "[t]his letter was a [QWR] as defined by RESPA."
(IcL 5
38.)
Additionally, Plaintiff alleges that Cenlar responded to a very detailed
QWR sent by Plaintiff's counsel in July 2007.
(See id. 1 135, & Ex. SSS.)
It
remains unclear which QWR is the predicate of Plaintiff's RESPA claim.
If the
RESPA claim is replead, this deficiency must be corrected.
29
that
the
RESPA violations
limitations,
12
23 at 14.)
Yet,
U.S.C.
are
outside
§ 2614.
(See
the
Doc.
applicable
no.
22
at
statute of
16;
Doc.
it is unclear whether Plaintiff is conceding that
all of his RESPA claims are barred or just those against CMI.
of
the
no.
above-referenced
deficiencies
and
issues
must
be
All
clarified
through repleading.
F.
O.C.G.A.
§
13-1-11
The Complaint alleges that "Defendants are attempting or have
previously
attempted
complying
O.C.G.A.
(Compl.
163.)
SI
to
collect
13-1-11
The
fees
and/or
surrounding
the
and
underlying
allegations
explanation of this statutory claim.
expenses
provide
without
contract."
no
further
This allegation is vague and
conclusory; it does not establish the factual basis for the claim
or even identify which provision of the statute has allegedly been
violated.
On repleading,
Plaintiff should plead the factual and
legal predicates of this claim with greater specificity.22
G.
O.C.G.A.
§ 7-4-17
Under Georgia law, payments made upon debts "shall be applied
first
to the discharge of any interest due at the time,
balance,
if
principal."
this
any,
The
be
applied
O.C.G.A. § 7-4-17.
statute,
22
shall
Court
the
Complaint
recognizes
that
to
the
reduction
and the
of
the
Without any explicit reference to
alleges
Plaintiff
that
has
"Defendants
attempted
to
are
provide
in
more
specificity in responding to the motions for judgment on the pleadings. But the
Court declines to address any substantive legal issues raised by Plaintiffs and
Defendants in the briefing until the claim is pleaded more thoroughly.
The
Court also notes that the legal issues raised deserve better briefing.
30
violation of Georgia law regarding the application of payments,"
and are "not properly applying said payments toward the payment of
(Compl. 11 178-89.)
principal and interest."
reference
the
sufficient
despite
statute,
notice
of
Plaintiff's
allegations
in
the
how Defendants'
statute.
these
a
allegations
claim
under
arguments
Complaint
to
do
not
section
the
that
By failing to even
give
7-4-17.
contrary,
clearly
application of payments was
Defendants
or
Moreover,
there
adequately
are
no
explain
inconsistent with the
These deficiencies must be corrected through repleading.
III.
CONCLUSION
Based upon the foregoing, Defendants' motions for judgment on
the pleadings (doc.
Answers are hereby
Amended
Complaint
instructions and
Order.
nos.
5,
STRICKEN.
in
22)
are DENIED.
The Complaint and
Plaintiff is DIRECTED to file an
compliance
with
the
authorities within twenty-one
above-referenced
(21)
days of this
Once the Amended Complaint is filed, Defendants shall have
twenty-one (21) days to plead or otherwise respond.
ORDER
December,
ENTERED
at
Augusta,
Georgia,
this
J^— day
2013.
HONQEAEirE^J.
RANDAL HALL
UNITEj/ STATES DISTRICT JUDGE
tERN
31
DISTRICT OF GEORGIA
of
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?