Armstrong v. Ocwen Mortgage Company et al
Filing
55
ORDER granting in part and denying in part 34 Motion to Dismiss. Count Ten of Plaintiff's second amended complaint is dismissed as moot. The remainder of Plaintiff's claims will proceed to trial. Signed by Judge William T. Moore, Jr on 3/28/2014. (loh)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
EDNA ARMSTRONG, as Attorney in
Fact for Thomas Flood, and
THOMAS FLOOD,
Plaintiffs,
CASE NO. CV41O0
V.
OCWEN MORTGAGE COMPANY; OCWEN
LOAN SERVICING, LCC; OCWEN
FINANCIAL CORP.; TAYLOR BEAN &
WHITAKER MORTGAGE CORP.; and
THE FEDERAL HOME LOAN MORTGAGE
CORP.;
Defendants.
ORDER
Before the Court is Defendants' Motion to Dismiss (Doc.
34), to which Plaintiffs have filed a response in opposition
(Doc. 36).
replies.
In addition, both parties have each filed two
(Docs. 39, 41, 46, 49.) In their motion, Defendants
seek to dismiss Plaintiff Armstrong for lack of standing and
to dismiss all counts in Plaintiffs' second amended complaint
for failure to state claims upon which relief can be granted.
For the following reasons, Defendants' Motion to Dismiss (Doc.
34)
is GRANTED IN PART
and
DENIED IN PART.
Plaintiff
Armstrong will remain as a plaintiff in this case. Count Ten'
of Plaintiffs' second amended complaint is DISMISSED AS MOOT.
The remainder of Plaintiffs' claims will proceed to trial.
BACKGROUND
This case arises from the foreclosure of Plaintiffs'
home, located at 522 West 45th Street, Savannah, Georgia (the
"Property")
•2
(Doc. 32 ¶ 27.) Plaintiff Flood holds all legal
interest in the Property, while Plaintiff Armstrong acts on
his behalf with regard to real estate transactions pursuant to
a New York short-form power of attorney. (Id. ¶ 3.) On July
23, 2007, Plaintiffs purchased the home with the assistance of
a mortgage from Defendant Taylor Bean & Whitaker Mortgage
Company ("TB&W") . (Id. ¶ 33.) The mortgage was secured by the
execution of a security deed, and provided that Plaintiffs
were required to make a payment of roughly $350 per month in
principal and interest and an additional $150 per month to an
escrow fund for real estate taxes and homeowner's insurance
1
Because Plaintiffs' second amended complaint contains two
Count Eights, Count Ten is erroneously designated as Count
Nine. (Doc. 32 ¶j 215-221.)
2
For the purposes of this motion, Plaintiffs' allegations set
forth in their complaint will be taken as true. See
Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir.
2009)
Plaintiffs have filed a notice of voluntary dismissal as to
Defendant TB&W. (Doc. 31.) Pursuant to Federal Rule of Civil
Procedure 41(a) (1) (A) (i), a plaintiff may dismiss an action by
filing "a notice of dismissal before the opposing party serves
either an answer or a motion for summary judgment." Because
Defendant TB&W has filed neither an answer nor a motion for
summary judgment, it is hereby DISMISSED from this action.
2
(the "Security Deed").
(Id.
However, Plaintiffs
¶j 33-36.)
always paid their homeowner's insurance premiums with funds
not held in the escrow account. (Id. ¶
37.)
The Security
Deed also stated that Plaintiffs would be provided with an
annual accounting of the escrow fund. (Id. ¶ 38.)
Sometime after the execution of the Security Deed,
Defendants Ocwen Financial Corporation, Ocwen Mortgage
Company, and Ocwen Loan Servicing Company, LLC, (collectively,
"Ocwen") and the Federal Home Loan Mortgage Corporation
("Freddie Mac") acquired the Security Deed and became
beneficiaries thereof. (Id. ¶J 38-42.)
In November 2007, the
escrow fund payment was increased from $150 to roughly $400.
(Id. ¶ 43.)
Plaintiffs contacted Defendant Ocwen to inquire
about the increase in the escrow fund payments, but no
explanation was provided. (Id. ¶J
45-47.)
Plaintiffs
requested an accounting of the escrow fund pursuant to their
rights under the Security Deed, but no accounting was
conducted. (Id. ¶J
Thereafter, Plaintiffs ceased
48-49.)
making mortgage payments. (Id. ¶ 50.)
On September
19,
2011,
Defendant Ocwen informed
Plaintiffs they were in default on their mortgage and that
Plaintiffs should turn in a "Borrower Response Package" to
avoid foreclosure. (Id.
¶j 51-52.)
Plaintiffs turned in the
requested documents and received notice that an agent would
assist them in applying for a modification of their mortgage.
(Id.
¶( 53-54.)
Defendant Ocwen's response also stated that
3
no foreclosure sale would take place and that Plaintiffs would
not lose their home during the modification application
process. (Id. ¶ 55.) Over the next few months, Plaintiffs
applied for a modification and repeatedly received assurances
from Defendant Ocwen, via written correspondence and through
Defendant Ocwen's agent, that no foreclosure sale would take
place until at least thirty days after a decision on
Plaintiffs' modification application was made. (Id.
¶j 57-
67.) During this time, Plaintiffs made no mortgage payments.
(Id. ¶ 71.)
Plaintiffs never received a decision regarding their
modification application, but received notice on June 4, 2012
that the Property would be sold at foreclosure the next day.
(Id.
¶f 73-74.)
On June 5, 2012, Defendant Ocwen sold the
Property at foreclosure to itself.
(Id. ¶ 78.) Three weeks
later, on June 26, 2012, Plaintiffs received notice that the
Property was to be sold on June 5, 2012. Over the following
months, Defendants obtained dispossessory warrants and writs
of possession against Plaintiffs. (Id. ¶ 80-86.) On November
8, 2012, the Sherriff of Chatham County served Plaintiffs with
a final notice of dispossession. (Id. ¶ 87.)
On December 5, 2012, Plaintiffs filed the present action
in the Superior Court of Chatham County, Georgia and obtained
a temporary restraining order preventing their dispossession.
(Id. ¶J 94-95.) On January 17, 2012, Defendants removed this
action to this Court pursuant to 12 U.S.C. § 1452(f). On
4
January 23, 2013, this Court entered a consent order enjoining
Defendants from dispossessing Plaintiffs and requiring
Plaintiffs to make regular payments into the registry of the
Court.
On July 29, 2013, Plaintiffs filed their Second
Amended Complaint.
(Doc. 32.) On August 8, 2013, Defendants
filed this Motion to Dismiss. (Doc. 34.)
ANALYSIS
I. PLAINTIFF ARMSTRONG AS A PROPER PARTY
As an initial matter, Defendants contest whether
Plaintiff Armstrong
is
a proper party to this action.
Plaintiff Armstrong claims authority to sue based on
possession of a short-form power of attorney executed in New
York. (Doc. 32, Ex. A.) Defendants argue that, under Georgia
law, possession of a power of attorney does not authorize
Plaintiff Armstrong to bring suit in this matter. (Doc. 34,
Attach. 1 at 6-8.) Defendants also argue that, even if New
York law were to apply, the power of attorney is defective
because it did not include a necessary disclosure statement.
(Id. at 8-10.) Plaintiffs respond that New York law governs
the authority granted by the document (Doc. 36 at 5-7) and
correctly point out that the power of attorney was executed
prior to the requirement of the disclosure statement (id. at
7-8). See Powers of Attorney, ch. 644, N.Y. Gen. Oblig. Law
§ 5-1501B(d) (1), 5-1513(n) (McKinney 2009).
5
Pursuant to Federal Rule of Civil Procedure 17, a party
may bring suit on another's behalf if authorized to do so by
statute. Fed. R. Civ. P. 17(a) (1) (g). Because Georgia law
applies lex loci contractus, the Court finds that a New York
power of attorney grants its possessor all the same authority
as it would in New York state. See Gen. Tel. Co. of Se. v.
Trimm, 252 Ga. 95, 95, 311 S.E.2d 460, 461, (1984) (holding
contracts in Georgia governed by law of place where made).
Accordingly, because the New York statute would allow
Plaintiff Armstrong to bring this action, and because it was
validly executed at the time of its creation, the Court finds
no reason to dismiss Plaintiff Armstrong from this action. 4
N.Y. Gen. Oblig. Law § 5-1502A(1) (McKinney 2009).
II. MOTION TO DISMISS STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a) (2) requires a
complaint to contain "a short and plain statement of the claim
showing that the pleader is entitled to relief." "[T]he
pleading standard Rule 8 announces does not require 'detailed
factual allegations,' but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation."
Iqbal, 556 U.S. 662, 678 (2009)
.
Aschroft v.
(quoting Bell Ati. Corp. v.
The Court also sees no reason why the power of attorney would
not permit Plaintiff Armstrong to bring this suit even if
Georgia law were to apply. See O.C.G.A. § 10-6-5 ("Whatever
one may do himself may be done by an agent.").
Twombly, 550 U.S. 544, 555 (2007)) .
"A pleading that offers
labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do." Iqbal, 556 U.S.
at 678 (internal quotations omitted). "Nor does a complaint
suffice if it tenders naked assertions devoid of further
factual enhancement." Id.
When the Court considers a motion to dismiss, it accepts
the well-pleaded facts in the complaint as true. Sinaltrainal
V.
Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009).
However, this Court is "not bound to accept as true a legal
conclusion couched as a factual allegation." Igbal, 129 U.S.
at 678. Moreover, "unwarranted deductions of fact in a
complaint are not admitted as true for the purpose of testing
the sufficiency of plaintiff's allegations."
578 F.3d at 1268.
That is,
Sinaltrainal,
"[t]he rule 'does not impose a
probability requirement at the pleading stage,' but instead
simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence of the
Igbal makes clear that Twombly has been the controlling
standard on the interpretation of Federal Rule of Civil
Procedure 8 in all cases since' it was decided. Iqbal, 129 S.
Ct. at 1953 ("Though Twombly determined the sufficiency of a
complaint sounding in antitrust, the decision was based on our
interpretation and application of Rule 8 . . . [that] in turn
governs the pleading standard in all civil actions and
proceedings in the United States district courts." (internal
quotations and citations omitted)).
7
necessary element." Watts v. Fla. Int'l Univ., 495 F.3d 1289,
1295-96 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 545)
III. CONVERSION AND MONEY HAD AND RECEIVED
Defendants argue that Plaintiffs' claims for conversion
and money had and received fail because the funds allegedly
held wrongfully cannot be specifically identified. (Doc. 34,
Attach. 1 at 11.) Defendants also argue that Plaintiffs have
failed to plead facts to suggest that Defendants
misappropriated money from the escrow account or that
Defendants refused to return the money when asked. 6 (Id. at
11-12.) Plaintiffs respond that their identification of the
funds earmarked for homeowner's insurance is sufficiently
specific, that Defendants refused to apply the funds as
Plaintiffs indicated, and that Defendants' refusal to account
for the funds indicates at least plausible misuse. (Doc. 36
at 8-9.)
While the elements of conversion and money had and
received are similar under Georgia law, they are not
identical. Actions for conversion generally involve personal
6
The Court finds Defendants' additional argument that any
possible overcharge in the escrow payment would be effectively
cancelled out by the arrearage of Plaintiffs' default to be
wholly without merit. Even if Defendants' contentions were
supported by law, the determination would still be a factual
inquiry unfit for a pre-discovery, undeveloped, motion-todismiss analysis. See Tello v. Dean Witter Reynolds, Inc.,
410 F.3d 1275, 1294 (11th Cir. 2005)
8
property, but an exception for money exists in instances where
the funds are specific and identifiable. Grant v. Newsome,
201 Ga. App. 710, 710-11, 411 S.E.2d 796, 798 (1991). A claim
of money had and received, however, does not necessarily fail
simply for lack of specificity. Taylor v. Powertel, Inc., 250
Ga. App. 356, 359, 551 S.E.2d 765, 769-70 (2001) . Regardless,
in this case Plaintiffs seek money from an escrow fund
earmarked only for insurance premiums and real estate taxes.
Specifically, Plaintiffs' complaint attempts to recover only
money not used for real estate taxes. (Doc. 36 at 8-9.)
Where the funds are earmarked for a specific purpose, like an
insurance premium payment, the money
is
sufficiently
identifiable for a conversion claim. See Unified Servs. Inc.
v. Home Ins. Co., 218 Ga. App. 85, 89, 460 S.E.2d 545, 559
(1995). In addition, while the co-mingling of the two
payments in the same account may complicate the issue, it does
not necessarily defeat a claim for conversion. See Adler v.
Hertling, 215 Ga. App. 769, 774, 451 S.E.2d 91, 97 (1994)
Accordingly, Plaintiffs' claims of conversion and money had
and received will not be dismissed for lack of specificity.
The Court next considers whether Plaintiffs have
sufficiently pled all the elements of their claims. For a
conversion action, Plaintiffs must normally allege (1) that
Pi
they had title to the money or the right of possession; (2)
that the Defendants are in actual possession of the property;
(3) that Plaintiffs demanded the return of the money; and (4)
that Defendants refused to return it. Johnson v. First Union
Nat'l Bank, 255 Ga. App. 819, 823, 567 S.E.2d 44, 49 (2002).
However, where a plaintiff alleges at the time the action is
brought that a defendant is still in possession of the
converted property—as is the case here—the elements of
conversion are presumed. See O.C.G.A. § 44-12-150. In
addition, the pleading requirements of conversion are
unnecessary for a claim of money had and received, since all
that is required is that the defendant be in possession of
money rightfully belonging to the plaintiff. Haugabook v.
Crisler, 297 Ga. App. 428, 432, 677 S.E.2d 355, 359 (2009).
Accordingly, the Court finds no pleading deficiencies in
either claim.
Lastly, the Court finds that Plaintiffs have alleged
sufficient facts in their complaint to imply misuse of the
funds. Plaintiffs allege both that Defendants refused to
provide an accounting of the funds and that a portion of the
funds was earmarked for an expenditure that Plaintiffs were
already paying. (Doc. 32 ¶j 101-107.) The Court finds these
facts sufficient to make misuse of the funds plausible, which
10
is all that is required to survive a motion to dismiss. See
Twombly, 550 U.S. 544, 547.
IV. WRONGFUL FORECLOSURE AND PLAINTIFFS' DEFAULT
Defendants first argue that Plaintiffs'
wrongful
foreclosure claim and claim to set aside the foreclosure are
barred because Plaintiffs are admittedly in default.
34, Attach. 1 at 12-13.)
(Doc.
Defendants also argue that
Plaintiffs' default should prevent them from enforcing any
other rights they may have under the Security Deed. (Doc. 46
at 2.) Plaintiffs respond that default alone does not
preclude a wrongful foreclosure claim (Doc. 36 at 9) and that
whether or not Plaintiffs can enforce provisions of the
Security Deed while in default depends on the cause of the
default (Doc. 49 at 2-3)
Under Georgia law, a debtor bringing a claim for wrongful
foreclosure must show (1) a legal duty owed to it by the
foreclosing party; (2) breach of that duty; (3) a causal
connection between the breach and the injury sustained; and
(4) damages. See Heritage Creek Dev. Corp. v. Colonial Bank,
268 Ga. App. 369, 371, 601 S.E.2d 842, 844 (2004). In
general, the mere fact that a debtor is in default does not
alone completely bar a wrongful foreclosure action, or the
possibility to set aside a foreclosure, because it is at least
11
plausible that a defaulting debtor could still show the above
elements.
Brown
V.
Freedman, 222 Ga. App. 213, 215, 474
S.E.2d 73, 76, (1996).
Otherwise, it would be extremely
difficult for any party wrongfully put into default by the
inappropriate action of a creditor to obtain relief. However,
these types of claims may ultimately fail if the facts show
that a plaintiff went into default through no fault of the
defendants. See Heritage Creek, 268 Ga. App. 369, 371-72, 601
S.E.2d 842, 845. Because Plaintiffs allege that default in
this case was induced by Defendants' wrongful actions, the
Court finds that whether Plaintiffs' default prevents recovery
is an issue best determined at the summary judgment stage.
Accordingly, the Court will not dismiss these claims here.
Defendants also argue that Plaintiffs have not alleged
facts showing Defendants failed to send a foreclosure notice,
only that Plaintiffs never received such notice.
Attach. 1 at 15.)
without merit.
(Doc. 34,
The Court finds this argument wholly
While "sent" and "received" have legally
distinct operative effects when interpreting the terms of a
contract, such is not at issue here. Plaintiffs merely plead
that they did not receive notice prior to foreclosure and,
consequently, they believe notice was never sent. (Doc. 32
¶ T 74-77.) This is all the law requires at this stage in the
12
litigation. Accordingly, the Court finds that the complaint
alleges sufficient facts to suggest that discovery could
reveal facts to plausibly support Plaintiffs' claim.
Defendants next argue that even if they failed to send
notice, Georgia law at the time of the foreclosure did not
require prior notice for foreclosure on second homes.
34, Attach. 1 at 13-14.)
(Doc.
Plaintiffs respond that this is a
misreading of the law and that notice was required because
Plaintiff Flood intended to use the Property as a home at the
time the mortgage was executed. (Doc. 36 at 12-15.)
Defendants counter that the Security Deed evidences Plaintiff
Flood's intent not to use the Property as his residence.
(Doc. 39 at 7-10.)
The Court finds Defendants' interpretation of Georgia's
old law to be an inappropriate conceptual leap. The statute
requires notice only for property that the debtor intends to
use as "a dwelling" at the time the mortgage is executed, but
it does not follow that such a requirement is inapplicable to
second homes. See O.C.G.A. § 44-14-162.3(a) (2009) (amended
2012). The case upon which Defendants rely to support their
interpretation involved a twelve-acre mixed commercial use
lot. See Ciuperca v. RES-GA Seven, LLC, 319 Ga. App. 61, 735
S.E.2d 107 (2012). The Court cannot find, and Defendants do
13
not provide, any case where the requirement of notice turned
on whether a property was used as a primary or secondary
residence, nor can the Court discern any reason the notice
requirement would hinge on this fact.
Nothing in Plaintiffs' complaint suggests that the
Property was ever meant to be used as anything other than a
dwelling. That is, Plaintiffs do not allege that it was to be
used as a rental property, retail establishment, or other type
of commercial space. Consequently, the Court is unable to
conclude as a matter of law that Defendants were not required
to provide Plaintiffs notice of foreclosure. While Defendants
are free to try to prove, as a factual matter, that Plaintiff
Flood never intended to use the Property as a dwelling, the
Court will leave this determination for the post-discovery
stage of litigation.
V. ESTOPPEL CLAIMS AND EQUITABLE RELIEF
Defendants contend that any promises they made to
Plaintiffs other than those in the Security Deed are
unenforceable for lack of consideration.
at 15-18.)
(Doc. 34, Attach. 1
Accordingly, Defendants reason that they had no
duty to provide Plaintiffs notice that their modification
request was denied prior to foreclosure, and that all of
Plaintiffs' estoppel claims should necessarily fail. (Id.)
14
Plaintiffs respond that estoppel claims do not hinge on the
enforceability of the underlying contract. (Doc. 36 at 18.)
In general, Defendants are correct that promises made
without new consideration are not enforceable.
§ 13-3-40(a).
See O.C.G.A.
Estoppel claims are an exception to this
principle, however, whereby a party may be estopped from
breaking a promise if the promisor should reasonably expect
that the promisee would, and in fact did, detrimentally rely
on that promise. See O.C.G.A. § 13-3-44(a). Because estoppel
claims are not governed by normal contract laws requiring
consideration, Plaintiffs' claims may not be dismissed simply
because they failed to provide new consideration for
Defendants' promises.
Defendants next argue that equitable relief is
unavailable to Plaintiffs because they come to the table with
"unclean hands" by having defaulted on the mortgage.
34, Attach. 1 at 18.)
(Doc.
Broadly speaking, the unclean hands
doctrine requires that a party seeking equitable relief must
give the other party all the equitable rights to which it is
entitled. See O.C.G.A. § 23-1-10. As stated above, however,
The Court also finds that an explicit promise not to
foreclose until a specific future event occurred, which is
what Plaintiffs allege Defendants repeatedly stated, is not
insufficiently vague so as to undermine an estoppel claim.
See Rental Equip. Grp., LLC v. MACI, LLC, 263 Ga. App. 155,
157 1 587 S.E.2d 364 367-68 (2003)
15
the Court has not made a determination as to the
cause
of
Plaintiffs' default or whether they were entitled to do so.
Accordingly, while Plaintiffs conceivably could be barred from
equitable relief if the default is found to be the result of
their own misconduct, that determination is simply premature
at this point.
Defendants also argue that Plaintiffs have not properly
alleged that they detrimentally relied on Defendants' promises
or that the reliance was reasonable. (Doc. 34, Attach. 1 at
16-18.) Again however, the Court finds that an analysis into
these questions is simply inappropriate at this stage of the
litigation. Clearly, Plaintiffs have alleged that they
detrimentally relied on Defendants' promises not to foreclose
when Plaintiffs withheld their mortgage payments which led to
the foreclosure. (Doc. 32 ¶J 69-71.) The Court sees no
reason to evaluate the factual arguments of the parties at
this stage to determine whether the reliance was or was not
objectively reasonable
. 8
8
The Court notes, however, that it is unconvinced of
Plaintiffs' contention that an estoppel claim's reasonable
reliance requirement invariably necessitates a jury. (Doc. 41
at 6.) While it is certainly a factual inquiry, the Court may
revisit these claims at the summary judgment stage to
determine whether Plaintiffs have produced facts such that a
reasonable jury could find in Plaintiffs' favor. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986)
IMi
VI. BREACH OF CONTRACT
Plaintiffs' complaint
states
that Defendants are in
breach of contract for failing to provide an accounting of the
escrow fund as required by the Security Deed.
¶l 179-80.)
(Doc. 32
Defendants argue that Plaintiffs have pled no
facts that could show an accounting would reveal "impropriety
or misapplication of the escrow funds" and thus no damages are
apparent. (Doc. 34, Attach. 1 at 20.) As Defendants
correctly point out, any breach of contract claim must
sufficiently allege both a breach of the contract as well as
actual and proximate damages on behalf of the non-breaching
party. See TechBios, Inc. v. Champagne, 301 Ga. App. 592,
595, 688 S.E.2d 378, 381 (2009) . Plaintiffs respond that the
unexplained increase in the escrow payment suggests that an
accounting could reveal improper charges, and that they are
entitled to determine through discovery whether money has been
improperly withheld. (Doc. 36 at 21-22.)
The Court finds that Plaintiff has alleged sufficient
facts, taken as true, that demonstrate they could have been
overcharged in their payments to the escrow fund. In
addition, the Security Deed states that "[i]f there is a
surplus of Funds held in escrow . . . Lender shall account to
Borrower for the excess funds. . . ." (Doc. 32, Ex. E at 5.)
17
Because an accounting of the fund would not only reveal these
overcharges, but also require Defendant to repay the excess
funds, the Court finds the failure to perform an accounting
would constitute a breach of contract that may allow
Plaintiffs to prove actual damages. Accordingly, Plaintiffs'
breach of contract claim should not be dismissed.
VII. DECLARATORY RELIEF, FEES, AND PUNITIVE DAMAGES
Lastly, Defendants contend that Plaintiffs have not
specified what type of declaratory judgment they seek, and
that none of Plaintiffs' allegations support claims for either
punitive damages or attorney's fees. 9 (Doc. 34, Attach. 1 at
20-21.) The Court finds these contentions facially incorrect.
Plaintiffs have clearly stated they seek a declaration of
their rights concerning the escrow fund and that Defendants
had no legal right to foreclose on the Property. (Doc. 32 at
35-36.) Further, Georgia law is clear that actions for
wrongful foreclosure or conversion may support an award of
attorney's fees and punitive damages. See Bibb Dist. Co. v.
Stewart, 238 Ga. App. 650, 656, 519 S.E.2d 455, 461 (1999),
Decatur Inv. Co.
V.
McWilliams, 162 Ga. App. 181, 181, 290
Defendants also state that these claims should be dismissed
because they necessarily rely, on the success of Plaintiffs'
other claims. (Doc. 34, Attach. 1 at 20-21.) Because the
Court has not dismissed Plaintiffs' other claims, this
argument is now moot.
18
S.E.2d 526, 527 (1982) .
Accordingly, Plaintiffs' prayers for
attorney's fees and punitive damages will not be dismissed.
However, Defendants' request to dismiss as moot Plaintiffs'
claim for an in junction against foreclosure (Doc. 34, Attach.
1 at 21), to which Plaintiffs have not objected, should be
granted.
CONCLUSION
For the following reasons, Defendants' Motion to Dismiss
(Doc. 34)
is GRANTED IN PART and DENIED IN PART.
Plaintiff
Armstrong will remain as a plaintiff in this case. Count Ten
of Plaintiffs' second amended complaint is DISMISSED AS MOOT.
The remainder of Plaintiffs' claims will proceed to trial.
SO ORDERED this
280
day of March 2014.
WILLIAM T. MOORE, JR//
UNITED STATES DISTRI'T COURT
SOUTHERN DISTRICT OF GEORGIA
19
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