Morrall v. CitiMortgage, Inc. et al

Filing 26

ORDER granting in part and denying in part 6 Motion to Dismiss. Plaintiff's wrongful foreclosure claim based on Citi's purported failure to provide notice shall proceed, as well as Mr. Morrall's claim for declaratory relief. Accor dingly, with the exception of Plaintiff's wrongful foreclosure claim and claim for declaratory relief, the Court dismisses with prejudice all remaining claims against Defendant CitiMortgage, Inc. The 7 Motion to Dismiss, 8 Motion to Dism iss, and 9 Motion to Dismiss are dismissed with prejudice. The Clerk shall terminate parties Freddie Mac, Pendergast & Associates, P.C., and Painter, Ratterree & Adams, LLP as defendants in this action, as well as all deadlines and motions pertaining to them. Signed by Judge J. Randal Hall on 02/25/2015. (thb)

IN THE UNITED

STATES DISTRICT COURT

SOUTHERN DISTRICT OF

FOR THE

GEORGIA

AUGUSTA DIVISION

JOSEPH MORRALL,

JR.

*

Plaintiff,

*
*

v.

*

CV 114-086

*

CITIMORTGAGE, INC.; FREDDIE
MAC; PENDERGAST & ASSOCIATES,
P.C.; ELLIS, PAINTER, RATTERREE,

*
*
*

& ADAMS,

*

LLP,

*

Defendants.

*

ORDER

This matter is now before the Court on Defendants'

filed motions

Plaintiff

claims

to

dismiss.

Joseph

arising

Hephzibah,

Morrall,

from his

Georgia

foreclosure,

(Docs.

fraud,

Jr.

6,

7,

charges

8,

("the

In this action,

Defendants

former ownership

30815

9.)

of 2311

Property"),

breach of an oral contract,

separately-

with

Perot

namely

Morrall,

whose

home

Defendant

Drive,

wrongful

and violation of

the "Georgia Business & Professions Code Section 17200,
Mr.

several

citiMortgage,

Inc.

et seq."
("Citi")

foreclosed upon in December 2013, appears to contend that Citi (l)
failed to provide him notice of the initiation of proceedings under

the power of sale as required by O.C.G.A.

§ 44-14-162.2 and (2)

failed to exercise fairly and in good faith the power of sale, as
Mr.

Morrall received assurances, orally and in writing,

that the

Property would not be foreclosed upon during the period in which
Citi considered his loan modification.

For the reasons set forth

below,

the

Court

CitiMortgage,

motions

to

GRANTS

Inc.'s

dismiss

Pendergast

&

IN

Motion

filed

LLP

to

by

Associates,

Ratterree & Adams,

PART

$92,900.00
secured

5,

2004,

("the Loan")

by

the

Defendant

6),

and

GRANTS

the

Defendants

Freddie

Mac

(Doc.

7),

(Doc.

and

Ellis,

8),

Painter,

BACKGROUND

Morrall

obtained a

mortgage

located

at

2311

Perot

to ABN a

Security Deed

loan

Inc.

Drive,

(Doc. 6, Ex. A ("Deed"), at 2.)1

delivered

PART

from ABN AMRO Mortgage Group,

property

Georgia 30815.
signed and

Mr.

(Doc.

IN

9).

I.

On March

DENIES

Dismiss

P.C.

(Doc.

and

On August

(Citi Br.,

Doc.

31,

2007,

6-1,

ABN merged with and

("ABN"),

Hephzibah,

Mr. Morrall also

("the

Deed") ,

granted ABN and its successors and assigns power of sale.

3.)

for

which
(Id.

at

into CitiMortgage.

at 2.)

According to Defendants, Mr. Morrall defaulted on the Loan,
fact he does not appear to contest.

can discern,

(Id.)

To the extent the Court

Citi commenced non-judicial foreclosure proceedings at

various points in 2008, 2009, 2010, 2012, and 2013.2
is

the

a

latter

of

these

dates.

In November

At issue here

and December

2013,

Mr.

1
"The court may consider a document attached to a motion to dismiss
without converting the motion into one for summary judgment if the attached
document is (1) central to the plaintiff's claim and (2) undisputed," meaning
the "authenticity of the document is not challenged."
Day v. Taylor, 400
F.3d 1272, 1276

2

Neither

(11th Cir. 2005)

party

provides

(citations omitted).

the

Court

with

many

relevant

facts

or

a

comprehensive timeline of the default and proceedings herein contested.
Public notices appearing in The Augusta Chronicle, however, indicate that a
foreclosure sale for Mr. Morrall's property was noticed publicly in all the
aforementioned years.

Morrall

"had

numerous

Homeowner Support
modification.

communications

with

Specialist Allen Byron"

(Doc.

1, Ex.

A

about

("Compl."),

at

2013, Mr. Byron "told

[Mr.

has been extend

and the new deadline

is

December

Plaintiff's
(Id.)

[sic]

23,

2013

loan

and

Morrall]

that

modification

"via e-mail/letter that

a potential

7.)

it

would

not

was

he was working on

[his]

"Defendant[xs]

Ellis,

Painter,

eviction attorney."

while

considered."

Luis Ruiz notified Mr.

he called Brian S. Goldberg,

and

foreclose

being

Morrall

modification and

(Id.)

then received an eviction notice on December 12,

attorney,"

On November 18,

for information return

the review process could take up to 30 days."

response,

loan

that his modification program

agreement

On December 4 and 5, 2013,

[C]iti[M]ortgage

Mr. Morrall

2013.

(Id.)

In

"the Defendant foreclosure

Ratterree
(Id.)

&

Adams

("EPRA"),

Mr. Goldberg informed

Mr. Morrall that the Property had been sold at a foreclosure sale
on December 3,

2013.

On February 28,

(Id.;

2014,

Mr.

Morrall,

proceeding pro se,

suit in the Superior Court of Richmond County, Georgia.

filed

He framed

his case as a "Wrongful Foreclosure Lawsuit," and identified eight
claims:

Georgia;

Negligence;

Breach of

Violation of Business & Professions Code of

Contract;

Breach of

Note;

Fraud;

Unlawful

Eviction; Wrongful Foreclosure; and Breach of the Implied Covenant
of Good Faith and Fair Dealing.

(Compl. at 3.)

Defendants Citi

and Freddie Mac timely removed the action to this Court on April 2,
2014.

(Doc.

1.)

Immediately thereafter,

Defendants

filed the

present motions

to

dismiss,

asserting that Mr.

Morrall has

failed

to meet the requisite pleading standards of Federal Rules of Civil
Procedure 8 and 9(b)

and otherwise has not stated actionable claims

for relief under Rule 12(b)(6).

II.

Federal

Rule

MOTION TO DISMISS

of

Civil

Procedure

STANDARD

8(a)(2)

requires

that

a

pleading contain a "short and plain statement of the claim showing
that the pleader is entitled to relief."

Although this pleading

standard does not require detailed factual allegations,

"labels and

conclusions" or "formulaic recitation[s]

of the elements of a cause

of

Iqbal,

action

(2009)

will

not

(quoting

(2007)).

do."

Bell

Thus,

in

Ashcroft

Atl.

Corp.

order

to

v.

v.

556

withstand

a

662,

678

550

Twombly,

U.S.

U.S.

544,

555

motion

complaint must contain sufficient factual matter,
to

*state a

(quoting

Twombly,

550

U.S.

at

670) .

That

reasonable

inference

misconduct alleged."

Id.

that

the

is,

defendant

(citing Twombly,

dismiss,

"a

accepted as true,

claim to relief that is plausible on its

required to plead "factual content that allows
the

to

the
the

is

face.'"

plaintiff
court

liable

550 U.S.

Id.

is

to draw
for

at 556).

the

"The

plausibility standard is not akin to a probability requirement, but
it

asks

for more

than

acted unlawfully."

Id.

Furthermore,
12(b)(6),

the

a

sheer possibility

that

a

defendant

has

(citation omitted).

when considering a motion to dismiss under Rule

Court

must

test

the

legal

sufficiency

of

the

complaint, not whether the plaintiff will ultimately prevail on the
merits.

Scheuer v.

Rhodes,

416 U.S.

232,

236

(1974).

"Dismissal

of a complaint is appropriate 'when, on the basis of a dispositive
issue

of

law,

no

construction

of

support the cause of action.'"
l-.ll-CV-2747-WSD,

992 F.2d 1171,

as

true

all

1174

facts

at *2

of Educ.

(11th Cir.

alleged

factual

allegations

will

Kabir v. Statebridge Co., LLC, No.

2011 WL 4500050,

(citing Marshall Cnty. Bd.

the

1993).

in

the

v.

(N.D.

Ga.

Sept.

27,

2011)

Marshall Cnty. Gas Dist.,
Here,

the court must accept

complaint

and

construe

all

reasonable inferences in the light most favorable to the plaintiff.
See Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002).

Lastly, when plaintiffs act pro se, the pleadings are "held to

a less stringent standard than pleadings drafted by attorneys and
will,

therefore,

States,

be

liberally construed."

148 F.3d 1262,

1263

(11th Cir.

Tannenbaum v.

1998).

United

"This leniency,

however, does not require or allow courts to rewrite an otherwise
deficient

pleading in order to sustain an action."

Thomas

v.

Pentagon Fed. Credit Union, 393 F. App'x 635, 637 (11th Cir. 2010).

Indeed, pro se claimants have "no license to harass others, clog

the judicial machinery with meritless litigation, and abuse already
overloaded court dockets."

(11th Cir. 1988)

Patterson v. Aiken,

841 F.2d 386,

(internal quotation marks omitted).

387

III.

DISCUSSION

As previously mentioned,

Mr. Morrall

identified eight claims

he intended to pursue on the Complaint's cover sheet:
Violation

of

Contract;

Business

Breach

Foreclosure;

Professions

Note;

and Breach of

Fair Dealing.

contains

of

&

only

(Compl.

the

Fraud;

III");

Relief.

at 3.)

following

Declaratory

(Compl. at 4-9.)

separately designate a
example,

wrongful

of

Unlawful

Georgia;

Breach

Eviction;

the Implied Covenant of

sections:

General

("Count II");

Relief

of

Wrongful

Good Faith and

The body of the Complaint,

("Count I"); Unfair Practices

("Count

Code

Negligence;

however,

Allegations;

Fraud

Breach of Oral Contract

("Count

IV");

and

Prayer

for

Accordingly, where Mr. Morrall failed to

cause

of action as a

foreclosure

—

the

Court

"Count" —
heeds

its

like,
duty

for
to

construe liberally the factual allegations to present such a claim.

A.

Wrongful Foreclosure

"In Georgia,

the essential elements of a wrongful foreclosure

claim include the following:
the

foreclosing party,

a breach of

v.

Wells

2007)).

Fargo

Mr.

Nat'1

Morrall

Ass'n,

Ga.

Mar.

647

appears

to

alleged

26,

S.E.2d

assert

injury,

a

causal

Warthen v. Litton Loan Servicing LP, No. 1:11-CV-02704,
(N.D.

the

(3)

damages."

*3

and

duty,

between

at

breach

that

connection

2012 WL 4075629,

the

(2)

(1) a legal duty owed to plaintiff by

and

(4)

2012) (citing Gregorakos

289,

a

292

claim

(Ga.

for

Ct.

App.

wrongful

foreclosure based on
failure

two separate theories:3

(1)

Citi's alleged

to provide notice of the initiation of proceedings under

the power of sale; and (2) Citi's breach of the implied covenant of

good faith and fair dealing in exercising the power of sale.
responds

simply that

it

had

the

authority

to

foreclose

Citi
on the

Property and Mr. Morrall's allegations with respect to "procedure"

are too conclusory and nonspecific to survive dismissal.

(Citi Br.

at 9.)

1.

Failure to Provide Proper Notice

In the present case, Mr. Morrall has alleged — albeit not in a
separately identified claim — that Citi did not give him notice of
the

foreclosure

(Compl.

at

4,

sale

9

and

that

he

suffered

(identifying O.C.G.A.

damages

§ 44-14-162.2

as

a

result.

and stating

that Citi[M]ortgage "never disclose [sic] to Plaintiff that subject
property was being sold December 3, 2013" and that "Plaintiff lost
his

home

requires

and

a

suffered great

secured creditor

notice of

the

advance.

O.C.G.A.

emotional distress").)

to provide

scheduled foreclosure
§ 44-14-162.2.

the

sale at
"Where

a

debtor

Georgia

law

with written

least thirty days
foreclosing

in

creditor

fails to comply with the statutory duty to provide notice of sale

3
Mr. Morrall also contends
foreclosure sale of the Subject

standing to do so."

(Compl. at 4.)

generally that Defendants "conducted a
Property without any legal authority of

In his sur-reply, however,

Mr.

Morrall

concedes that Citi "had the authority to proceed with a non-judicial sale,"
and clarifies that he merely challenges Defendants' purported failure to

follow the procedures for initiating the sale under Georgia law.
(PL's SurReply, Doc. 23, at 1-2.)
The Court, therefore, will not address any claim
based on lack of "legal authority" or "standing" as Mr. Morrall has abandoned
them.

§ 44-14-162 et seq. ,

to the debtor in accordance with O.C.G.A.
debtor

may

either

seek

to

set

aside

the

foreclosure

damages for the tort of wrongful foreclosure."

or

the

sue

for

Roylston v. Bank of

Am., N.A., 660 S.E.2d 412, 417 (Ga. Ct. App. 2008).

Accepting Mr.
the Court

Morrall's

finds that Mr.

allegations

Morrall has

of

"no notice"

See Joseph v.

Loan

2012

(N.D.

Ga.

Corp.,

Nov.

No.

6,

1:12-CV-01022-RWS,

2012);

Alexis

Sys. , Inc. , No.

1:11-CV-01967-RWS,

Mar.

Innocent

5,

2012);

03799-RWS,

2012 WL 602129,

2.

In Georgia,

2008)

("Where

under OCGA

Elec.

2012 WL 716161,

Wachovia

at *3

Mortgage

Mortgage

(N.D. Ga.

Feb.

5429639,

at

*3

Registration

at

*4

Corp.,
22,

Home

(N.D.

No.

Ga.

1:10-CV-

2012) .

Sale

a foreclosing creditor also has a duty to exercise

fairly the power of

Green Tree

v.

WL

Fed.

Failure to Exercise Fairly and in Good Faith the
Power of

v.

v.

true,

sufficiently stated a claim

for wrongful foreclosure on this theory.
Mortg.

as

sale.

Servicing,
a

grantee

§ 23-2-114

deed to secure debt,

O.C.G.A.

LLC,
does

662
not

to exercise

§ 23-2-114;

S.E.2d 141,

see also DeGolyer

147

comply with the

(Ga.

Ct.

App.

statutory duty

fairly the power of

sale

in a

the debtor may sue for damages for the tort of

wrongful foreclosure.").

In asserting a separate claim for fraud,

Mr. Morrall alleges that Citi told him, orally and in writing, that
it

would not

foreclose

on the property during

modification request was under review.
lender makes

some

affirmative

(Compl.

misrepresentation

the

time

at 5, 7.)
that

his

loan

When a

renders

the

foreclosure sale unfair,

a claim for wrongful foreclosure may stand

independently of

a

Mellon,

1:13-CV-2701-TWT,

Feb.

N.A.,

21,

No.

claim

fraud.

Watts

v.

Bank

2014 WL 695222,

all,4

the

facts

of

his

case

are

at *3

(N.D. Ga.

distinguishable

a

bank

told

the

plaintiff

in

writing

payments in order to receive a loan modification.
at

*3.

There,

from

the

§ 23-2-114 claims to move

forward in the loan modification dispute context.

5429639,

New York

Morrall seeks to recover under this theory

precedent in this Circuit that permits

example,

of

2014) .

To the extent Mr.

at

for

a claim for wrongful

In Joseph,

to

stop

for

making

Joseph, 2012 WL

foreclosure existed

because the bank failed to exercise its power of sale fairly and in

good faith by telling the

then

foreclosing

CitiMortgage,
assurances

anyway.

Inc.,

over

the

the

Id.
bank

course

of

modification to the plaintiff.
5:10-CV-435

2011).

MTT,

2011

WL

to stop making payments but

plaintiff

Similarly,

made
two

repeated
years

in

oral

that

it

Stimus
and

would

Stimus v. CitiMortgage,

2610391,

at

*l-3,

*5

(M.D.

the payments

grant

a

Inc., No.

Ga.

Id.

July

1,

and negotiated the checks, but

CitiMortgage accepted

the plaintiff never

received any paperwork regarding the loan modification.

Mr.

written

The plaintiff faithfully made payments pursuant to their

tentative oral modification agreement.

4

v.

Morrall

identifies "Breach of

the

Implied Covenant of

Id. at *3.

Good Faith

and Fair Dealing" as his eighth enumerated claim on the cover page of his
Complaint, but there is no corresponding argument within the Complaint's
body.

The

court

held

that

these

facts

were

sufficient

plaintiff's wrongful foreclosure claim.
In this

making

case,

payments

establish a

Citi

on

did nothing

his

causal

loan,

and

to

as

connection between

l:12-CV-3532-TWT,

9, 2014) .

sustain

prevent

such,

Mr.

Mr.

Citi's

Morrall

Morrall

from

cannot

purported breach of

See Chadwick v. Bank of Am.,

2014 WL 4449833,

at *5

(N.D. Ga.

Sept.

The parties agree that Mr. Morrall failed to pay.

Citi Br.

at

3

altogether);
authority to

tendered

(stating that Mr. Morrall

PL's

Sur-Reply

foreclose).)

any

amount

at

1

Mr.

owing.

the

Id. at *5.

good faith and the loss of his home.
N.A. , No.

to

stopped making payments

(conceding that

Morrall

Solely

(See

does

not

entering

Citi

had

allege

into

the

that

he

modification

negotiations would not have excused him from making payments under
the terms of
him a

the Deed,

modification.

CV-2854-RWS,

2013

and Citi was under no obligation to grant

Freeman v.

WL

2637121,

reconsideration denied,

Ga. Oct.

31,

2013);

" [p] recedent
respond

to

from
a

(citation omitted);

at

*4

Fargo Bank,

(N.D.

Ga.

l:12-CV-2854-RWS,

Chadwick,

this

loan

No.

Wells

modification

request

see also Moore v.

June

No.

11,

not

at *5

(N.D.

(noting that

require

prior

1:12-

2013),

2013 WL 5885908

2014 WL 4449833,

Court . . . does

N.A.,

to

a

bank

to

foreclosure")

McCalla Raymer,

LLC,

916 F.

Supp. 2d 1332, 1343 (N.D. Ga. 2013) ("[S]eeking a loan modification
does

not

give

Plaintiff

foreclosure.")(citations

a

cause

omitted).

of

action

Ultimately,

for
Mr.

wrongful
Morrall's

failure to tender the amount due is a complete bar to recovery for

10

wrongful foreclosure based on this theory,

as without such payment

it cannot be said that Citi's purported "bad faith" representations
or negotiations caused his damages:

own damages by failing to pay.

Mr.

Morrall instead caused his

Chadwick,

2014 WL 4449833,

at *5

(citations omitted).

B.

Fraud

"[I]n

(Count I)

all

averments

of

fraud or

mistake,

the

circumstances

constituting fraud or mistake shall be stated with particularity."
Fed.

R.

Civ.

plaintiffs

P.

9(b).

in

To

Georgia

sufficiently plead

must

establish

representation by a defendant,

plaintiff,

2011)

No.

claim

for

elements:

"a

fraud,

false

scienter,

intention to induce the

to act or refrain from acting,

plaintiff

LLC,

five

a

justifiable reliance by

and damage to plaintiff."
l:ll-CV-2747,

Kabir v.

2011 WL 4500050,

at *6

Statebridge Co.,

(N.D.

Ga.

Sept.

27,

(quoting Baxter v. Fairfield Fin. Servs., 704 S.E.2d 423, 429

(Ga. Ct. App. 2010)).

This rule alerts defendants to the precise

misconduct

they

with

which

against spurious
Barclay's

charges of

Nominees,

Fla. Sept.

30,

No.

2008)

are

charged

fraudulent

04-60897,

and

protects

behavior.

Steinberg

2008 WL 4601043,

at

Court

compliance

of Appeals

with Rule

*11

v.

(S.D.

(citing Brooks v. Blue Cross Blue Shield of

Fla., Inc., 116 F.3d 1364, 1370-71 (11th Cir. 1997)).

Circuit

defendants

9(b)

further mandates

must

set

forth:

that

(1)

a

The Eleventh

complaint

in

precisely what

statements were made in what documents or oral representations or

11

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.
4500050,

has

above.

the

Complaint

satisfied

Although

paragraphs

the

he

stating

heightened

failed

"who,

liberally,

to

what,

Court

pleading

include

when,

the

the

where,

Mr.

Byron

November 18,

and Ms.

that

Citi

considered

his

loan

Compl.

7.)

He

fraudulent"

2013

as

without

further

a

Mr.

states

specialist

represented

outlined

requisite
and

to

how"

Mr.

factual

under

the

Specifically, he

him via

phone

on

2013 and via e-mail/letter on December 4 and 5, 2013,

respectively,

at

Ruiz

finds

standard

designated claim for fraud, he does so elsewhere.

alleges

2011 WL

at *6.

Construing
Morrall

Kabir,

as

not

modification
contends

foreclose

request

such

or

during

the

time

application.

statements

were

Morrall's

part

knowledge.

" [Citi]

of

(Id.

intentionally

their

pattern

and

at

"false

5.)
made

Mr.
the

practice

to

it

(See
and

sale had already been scheduled for December

that

a

would

3,

Morrall
support

deceive

borrowers such as Plaintiff into relying to their detriment so they
could foreclose on homes before borrowers could seek other remedies

or

options."

[Citi]

(Id.

at

4.)

Furthermore,

he

alleges

that

" [i] f

had not purported to engage in a loan modification process

the Plaintiff would have focused his time on seeking alternatives

12

to foreclosure other than loan modification,

such as reorganization

under

a

[b] ankruptcy law."

(Id.

at

Mr.

Morrall

Morrall's fraud allegations fail to

state a

lost his home to Citi's benefit.

Nevertheless,

claim

upon

which

Mr.

this

Homeward Residential,
curiam),

the

dismissal

of

Court

Inc.,

Eleventh

7.)

As

(See id.

can

grant

at 1.)

relief.

500 F. App'x 882

Circuit

the plaintiffs'

Court

result,

of

In

McGowan

(11th Cir.
Appeals

2012)

(per

affirmed

fraud/misrepresentation claim,

v.

the

which

alleged their loan servicer attempted to foreclose even though the

parties had entered into a temporary forbearance agreement.

Id.

at

are

884-85.

The

Court

found

that

"forbearance

agreements

unenforceable for lack of consideration under the pre-existing duty

rule,

which provides that

what

he

is

already

Ma]n agreement on the part of one to do

legally

bound

to

do

is

consideration for the promise of another.'"
Trust Bank v. White,

618 S.E.2d 9, 11-12

the

the

Court

concluded

the plaintiffs'
that

the

loan

breached

Id.

sufficient

(citing Citizens

(Ga. Ct.

agreements

a

App.

were

2005)).

not

As

binding,

fraud/misrepresentation claim — which alleged only
servicer

rightfully dismissed.
Mr.

forbearance

not

breached

promised

to

forbear

—

was

Id. at 885.

Morrall's

fraud

some

of

type

that

claim

likewise

forbearance

alleges

agreement,

oral

only

or

that

Citi

otherwise.

Although Citi's purported promise to forbear from foreclosure was

adequate consideration to consummate this "agreement," Mr. Morrall
offered nothing in return.

He was in default under the note.

13

Even

his promise to pay the debts already owed would be insufficient to
make the "agreement" enforceable.

(quoting

Citizens

Phillips

v.

Trust

Atl.

Accordingly,

Bank

Bank,

S.E.2d

Trust

&

618
Co.,

309

Citi's

alleged

foreclose . . . constitutes

broken

promise"

and

See McGowan,

at

11-12);

S.E.2d

813,

nothing

more

Morrall's

claim

be

DISMISSED.

than

of

See

see

814

"agreement"

Mr.

alleged promise must

500 F. App'x at 885

also

(1983).

not

an

to

unenforceable,

fraud

based

Phillips,

309

on

this

S.E.2d at

814.

C.

Violation of the "Georgia Business & Professions Code
17200"

In

Count

(Count II)

II,

Mr.

Morrall

identifies

ten

acts

related to "mortgage loan servicing, assignments[,]

of

trust,

[and]

foreclosure

of

residential

or

practices

notes and deeds

properties"

in

which

Defendants purportedly engaged that constitute "per se violations
of Georgia Business and Professions Code

17000."

No

43

such

code

regulates

exists

Georgia

in

Georgia.

"Professions

Title
and

address general business practices,

of

(Compl.
the

Businesses,"

at

Georgia

but

unfair competition,

6.)
Code

does

not

etc.

To

the extent Mr. Morrall intends to invoke the Georgia Fair Business
Practices

Act

("GPBPA"),

O.C.G.A.

§

10-1-393

et

seg. ,

and

pretermitting whether his enumerated allegations are supported with
sufficient

factual

matter

to

satisfy Rule

8,

Mr.

Morrall

state a claim in this case for a violation of the GFBPA.

14

cannot

The

GFBPA

does

not

apply

specifically authorized under

to

"actions

or

laws administered by

transactions

or

rules

and

regulations promulgated by any regulatory agency of this state or
the

United

States."

O.C.G.A.

§

10-1-396(1).

"Because

the

servicing of mortgages and foreclosure sales are regulated by other
state and federal rules and statutes, claims relating to either are
exempt

from

the . . . [GFBPA]."

Jackman

v.

Hasty,

No.

1:11-CV-

2485-RWS, 2011 WL 854878, at *6 (N.D. Ga. March 8, 2011).

Defendant Citi suggests that Mr. Morrall appears to invoke the
California

Business

&

Professions

Code,

which

prohibits

"any

unlawful, unfair or fraudulent business act or practice and unfair,

deceptive, untrue or misleading advertising."
(citing Cal. Bus. & Prof. Code § 17200).)

(Citi Br. at 11-13

Again,

to the extent Mr.

Morrall intends to invoke California's unfair competition laws,

and

pretermitting whether his enumerated allegations are supported with
sufficient

factual

matter

to

satisfy Rule

8,

Mr.

Morrall

cannot

state a claim in this case for such a violation.

Section

17200

"does

not

support

claims

by

non-California

residents where none of the alleged misconduct or injuries occurred
in California."

1231,

1239

(S.D.

Zarrella v.

Fla.

2011)

Pac.

Life

(quoting

Ins.

Co.,

Churchill

755 F.

Vill.,

Supp.

2d

L.L.C.

v.

Gen. Elec. Co., 169 F. Supp. 2d 1119, 1126 (N.D. Cal. 2000)).
Morrall is a resident of Georgia

(see Compl.

24),

New

and

Defendant

Citi

is

a

York

at

1; see also Doc.

corporation

principal place of business in Missouri (Doc. 1, U 10).
15

Mr.

with

its

"Courts

have allowed out-of-state purchasers to sue California defendants,

but

only

when

Zarrella,
Morrall,

755

there

was

F.

Supp.

however,

makes

alleged
2d

no

at

misconduct

1239

within

(citations

allegations

California."

omitted) .

whatsoever

that

Mr.

Defendant

Citi's purported misconduct occurred in California.
Construing Count II as liberally as the Court may, Mr. Morrall
has

failed

to

state

an

actionable

claim

and

thus

it

is

due

to

be

DISMISSED.

D.

Breach of Oral Contract

In Count III, Mr.

(Count III)

Morrall contends that Citi breached its oral

promise to forebear foreclosure while it considered or reviewed his
"loan modification agreement."

(See Compl.

at 7.)

Specifically,

he asserts that he "had numerous communications" with Mr. Byron and
Mr. Ruiz,

who "reiterated and assured Plaintiff that they would not

proceed or continue with foreclosure process with regard to Subject

Property while

they were

reviewing

Plaintiffs

[sic]

request

for

loan modification . . . pursuant to HAMP," but Citi "breached that
promise by foreclosing anyway."

(Id.)

Oral and unwritten agreements regarding any commitment to lend

money or any interests in lands — including reinstating a mortgage,
refinancing a mortgage, or forbearing from foreclosure proceedings
-

are unenforceable under the Georgia Statute of Frauds.

v. Fed. Home Mortg.
(citations omitted);

Corp., 572 F. App'x 719, 723
Jean v. Am. Home Mortg.

16

Desouza

(11th Cir. 2014)

Servicing,

Inc.,

No.

1:11-CV-1101-WSD,

2012

WL

1110090,

at

(citing James v. Safari Enters., Inc.,
App.

Ct.

2000); Allen v.

App.

1998);

enforce

a

Desouza,
Bank,

Tucker Fed.

O.C.G.A.

promise

that

fails

Morrall's

S.E.2d 58,

59

claim

Mr.

that

Bank,

to

(N.D.

Ga.

Mar.

30,

537 S.E.2d 103, 104
510 S.E.2d 546,

§ 13-5-30).

572 F. App'x at 723

427

*4

(Ga. Ct.

546-47

"A plaintiff cannot

satisfy the

2012)

statute

of

(Ga.

sue

to

frauds."

(citing Studdard v. George D. Warthen

(Ga.

Ct.

App.

Bryon's

or

1993)).

Mr.

Accordingly,

Ruiz's

verbal

Mr.

pledges

created contracts that Citi subsequently breached fails as a matter
of

law and must be DISMISSED.

E.

Declaratory Relief (Count IV)

Count IV of Mr.

Morrall's Complaint states that "[a]n actual

dispute exists between Plaintiff and Citi[M]ortgage . . . as to the

ownership

of

the

amount, if any,
prior to

Subject

[of]

Property,

leins

foreclosure."

[sic]

and

validity,

if

any,

that were on the Subject Property

(Compl.

at

8.)

He

continues,

"[d]ue

this dispute as to the rights,

and interests of parties,

matter,

that the Court enforce

Plaintiff request

[sic]

and

to

in this

[sic]

these

rights with issuance of injunctions or restraining orders as may be
necessary

to

place

the

parties

respect to their interests."
To
Court

the

DENIES

wrongful

extent

Mr.

foreclosure

claim

their

proper

position

with

(Id.)

Morrall

Defendants'

in

requests

motions

to

survives.

17

declaratory

dismiss

To

the

as

relief,

Mr.

extent

the

Morrall's

Mr.

Morrall

seeks

injunctive

relief,

he

has

failed

to

demonstrate

(1)

a

substantial likelihood of success on the merits of the underlying
case,

(2)

that he will suffer irreparable harm in the absence of an

injunction,

(3)

that the harm suffered by him in the absence of an

injunction

would

injunction

were

exceed

the

harm

to

and

(4)

that

issued,

disserve the public interest.
v.

1-800

Contacts,

Inc.,

299

the

opposing

an

party

injunction

of

would

Johnson & Johnson Vision Care,
F.3d

" [A] preliminary injunction is an

1242,

1246-47

an

(11th Cir.

not
Inc.

2002).

xextraordinary and drastic remedy

not to be granted unless the movant clearly carries the burden of
persuasion as to the four prerequisites.'"
Registration Sys.,

*5

(N.D.

Ga.

Inc.,

Feb.

No.

19,

2:12-CV-00023-RWS,

2013),

appeal

2013)(citing Zardui-Quintana v. Richard,
Cir.

Lesman v. Mortg.

Elec.

2013 WL 603895,

dismissed,

(May

768 F.2d 1213,

1216

at

15,
(11th

1985)).

Even though the Court finds Mr. Morrall has stated a claim for
wrongful foreclosure based on lack of notice and thus may prevail
on the merits,

injunction

he

he

has

would

not

demonstrated

suffer

that

irreparable

foreclosure sale has already occurred and,

can discern,
24).

Mr.

Morrall

has

harm

in

of

the

absence

any

kind.

an

The

to the extent the Court

already been dispossessed

(see Doc.

Injunctive relief at this stage would serve no purpose.

18

of

F.

Relief

Mr. Morrall seeks, inter alia,

In the Complaint,
damages,

punitive

damages,

(See Compl. at 8-9.)

and

cancellation

l:10-CV-3657-JEC,

2012)
to

2012

(listing cases).

dismiss

Mr.

the

foreclosure.

All of these potential damages are available

in a suit for wrongful foreclosure.
No.

of

compensatory

WL

Campbell v. Bank of Am. , N.A. ,

879222,

at

*6

(N.D.

Ga.

Mar.

On the present record, Defendants'

Morrall's

claims

for

these

forms

of

12,

motions

relief

are

DENIED.

Mr. Morrall also requests attorney's fees.

he has

elected to proceed pro se,

them.

Paulo

3557703,

at

Fla. , No.

v.

*6

OneWest

(N.D.

10-62398,

cases

litigants'

requests
The

Ga.

FSB,

July 18,

2012 WL 526790,

(collecting

statutes).

Bank,

however,

in

which

for

Court

the

No.

at *3

thus

Mot en v.
(S.D.

Eleventh

GRANTS

fees

As

is not entitled to

1:13-CV-3695-WSD,

2014);

attorney's

he

(Compl. at 9.)

Fla.

Circuit

under

Defendants'

2014

WL

Broward Cnty.,
Feb.

16,

denied

fee

motions

2012)

pro

se

shifting
in

this

limited respect.

G.

Defendant Freddie Mac

Although Mr. Morrall names Freddie Mac as a defendant, he does
not mention Freddie Mac even once in the body of his Complaint or
briefs.

The Court finds that Mr.

Morrall has failed to satisfy the

basic requirement of notice pleading under Rule 8 with regard to

19

his

claims against

Freddie Mac,

Freddie Mac are DISMISSED.

H.

only

Pendergast
S.

instance

in

his

in

which

Complaint

Goldberg [,]

the

claims

against

7.)

Defendant Pendergast & Associates, P.C.

The

Brian

(Doc.

and therefore all

is

Mr.

as

Morrall

follows:

Defendant

("Pendergast")

mentions

Defendant

"[P]laintiff

foreclosure

call[ed]

attorney,"

informed him that his house was sold on December 3, 2013.

at

7.)

Mr.

Morrall

does

interest in the Property,

representation

or

Mr.

the

sale

allege

that

Pendergast

foreclosed the Property,

promises,

allegation that
foreclosure

not

or

owed

Morrall spoke
does

not

him

any

who

(Compl.

had

any

made any false

duty.

The

single

to a Pendergast attorney after

satisfy

the

basic

requirements

of

notice pleading under Rule 8 and fails to raise any plausible claim
for relief.

Therefore,

the

P.C.'s Motion to Dismiss.

I.

Defendant Ellis,

Court GRANTS Pendergast & Associates,

(Doc.

8.)

Painter,

As with Defendant Pendergast,
Morrall

mentions

call [ed]

. .

Defendant

. Ellis,

Painter,

EPRA

Ratterree & Adams,

the only instance in which Mr.
is

as

follows:

Morrall

does

not

allege

"[P]laintiff

Ratterree & Adams LLP[,]

[sic] eviction attorney regarding this matter."

Mr.

LLP

that

EPRA had

any

Defendants

(Compl.

at

7.)

interest

in

the

Property,

foreclosed the Property, made any false representation or

promises,

or

owed him any duty.

The

single allegation that Mr.

Morrall called EPRA after the foreclosure sale does not satisfy the

20

basic requirements of notice pleading under Rule 8 and fails to
raise any plausible claim for relief.
Ellis,

Painter,

Ratterree & Adams,

Therefore,

the Court GRANTS

LLP's Motion to Dismiss.

(Doc.

10.)

IV.

CONCLUSION

Based on the foregoing, the Court GRANTS IN PART and DENIES IN

PART

Defendant

Plaintiff's

CitiMortgage,

wrongful

Inc.'s

foreclosure

Motion

to

Dismiss

claim based on

failure to provide notice SHALL PROCEED,

Citi's

(Doc.

6).

purported

as well as Mr. Morrall's

claim for declaratory relief.

As

to

the

remaining Defendants

that the Eleventh Circuit Court of

and claims,

the

Court notes

Appeals has held that where a

"more carefully drafted complaint might state a claim," the court
must allow a pro se plaintiff "at

complaint

before

the

district

least one chance to

court

dismisses

prejudice," unless amendment would be futile.
510 F.3d 1307,

1112

(11th Cir.

1310

(11th Cir.

1991) .

2007);

Bank v.

the

amend the

action

with

Cockrell v. Sparks,
Pitt,

928 F.2d 1108,

A more carefully drafted complaint would

not state plausible claims in this case for breach of the duty of

good

faith and fair dealing,

fraud,

breach of an oral

contract,

injunctive relief, or attorney's fees: these claims are barred as a
matter of law.

Nor would a more carefully drafted complaint state

claims in this

case

Associates,

P.C.,

against Defendants Freddie Mac,

and

Ellis,

Painter,

21

Ratterree

&

Pendergast &
Adams,

LLC.

Indeed,

the

Complaint

is

wholly

devoid

of

facts

to

support

any

claim against them.

Accordingly,
foreclosure
DISMISSES

WITH

LLP

(Doc.

defendants

and

claim

PREJUDICE

claims

P.C.

9) .
in

exception

all

for

of

Plaintiff's

declaratory

remaining

relief,

claims

wrongful
the

against

Court

Defendant

The Court further DISMISSES WITH PREJUDICE all

Inc.

Plaintiff's

Associates,

the

claim

CitiMortgage,

of

with

(Doc.

The
this

against Freddie Mac
8),

and Ellis,

Painter,

Clerk SHALL TERMINATE
action,

as

well

as

(Doc.

all

7),

Pendergast

Ratterree

these

&

& Adams,

three parties as

deadlines

and

motions

pertaining to them.

ORDER ENTERED at Augusta,
February,

Georgia,

this

£%S^* day of

2015.

HONQRASGE J. R^NE&L HAUL

UNITED/STATES 'DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA

22