Ringold v. Bank of America, N.A. et al

Filing 33

ORDER granting in part and denying in part 24 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge Jon Phipps McCalla on 04/09/2013. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

MARY RINGOLD,
Plaintiff,
v.
BANK OF AMERICA HOME LOANS;
BANK OF AMERICA LOANS
SERVICING, LP; NATIONWIDE
TRUSTEE SERVICES, INC.,
Defendants.

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2:12-cv-02344-JPM-dkv

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS

Before the Court is Defendant Bank of America, N.A.’s
Motion to Dismiss Plaintiff’s Second Amended Verified Complaint,
filed December 19, 2012.
February 13, 2013.

(ECF No. 24.)

Plaintiff responded on

(ECF No. 26.)1

For the following reasons, Defendant’s Motion to Dismiss is
GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
This action arises out of Defendants’ foreclosure of
Plaintiff’s property.

(See Second Am. Compl., ECF No. 22,

at 1.)

1

The Response filed by Plaintiff on February 13, 2013, was to the Court’s
Order for Plaintiff to Show Cause (ECF No. 25), entered January 28, 2013.
Plaintiff’s Response to the Order contains assertions opposing Defendant’s
Motion to Dismiss. The Court construes Plaintiff’s Response to the Order to
Show Cause as a Response to Defendant’s Motion to Dismiss.

A. Factual Background
On November 27, 2006, Plaintiff Mary Ringold (“Plaintiff”
or “Ringold”) purchased a home located at 9245 Acadia Place,
Cordova, Tennessee 38108 (the “Acadia Property”).

(Id. ¶ 7.)2

Plaintiff originally financed her home through Eagle Mortgage
and Funding Corporation (“EMF Corp.”) with a Fixed/Adjustable
Rate mortgage loan of $150,192.00 and a five-year initial fixed
interest rate of 5.375%, supported by a Deed of Trust.
¶¶ 8, 11, 14-16.)

(Id.

Plaintiff was granted an escrow waiver at

closing and, as a condition for the waiver, accepted
responsibility for paying her own property taxes and homeowners
insurance directly.

(Id. ¶¶ 9-10.)

Section 3 of the Deed of Trust instrument states that the
“Lender may revoke the waiver as to any or all Escrow Items at
any time by a notice given in accordance with Section 15 and,
upon such revocation, Borrower shall pay to Lender all funds,
and in such amounts, that are then required under this Section
. . . .”

(Deed of Trust, ECF No. 22-1, at 4.)

Section 15 of

the Deed of Trust states that “[a]ll notices given by Borrower
or Lender in connection with this Security Instrument must be in
writing.”

(Id. at 10.)

EMF Corp. assigned Plaintiff’s Deed of Trust to Countrywide
Bank, N.A. (“Countrywide”), on December 9, 2008.
2

(ECF No. 22

In its Motion to Dismiss, Defendant Bank of America, N.A., states that
“[t]he facts as alleged in [Plaintiff’s] Second Amended Complaint are taken
as true for the purposes of [Defendant’s Motion to Dismiss] only.” (ECF No.
24-1 at 3 n.2.)

2

¶ 13.)

Countrywide later merged with Defendant Bank of America,

N.A. (“Defendant” or “Bank of America”).3

(Id.)

Beginning December 1, 2011, Plaintiff’s loan was set to
transition to an adjustable interest rate, subject to monthly
changes.

(Id. ¶¶ 17-18.)

In early 2009, Plaintiff began

pursuing a loan modification with Defendant through the
Neighborhood Assistance Corporation of America (“NACA”).
¶ 19.)

(Id.

NACA sent Defendant an inquiry to begin the loan

modification process for Plaintiff, requested documents from
Defendant regarding a modification of Plaintiff’s mortgage, and
requested that Defendant create an escrow account for Plaintiff
consistent with NACA’s guidelines.

(Id. ¶¶ 20-22.)

Defendant

did not respond to NACA’s inquiries, and Plaintiff did not
receive any written notice that she was to pay into escrow.
(Id. ¶ 23.)

Defendant states that, “pursuant to NACA

guidelines, [it] established an escrow account on Plaintiff’s
mortgage loan and charged Plaintiff for advances and payments
made out of that account.”

(ECF No. 24-1 at 4; see also ECF No.

22 ¶ 25.)
Pursuant to the escrow waiver under the Deed of Trust,
Plaintiff paid the property taxes on the Acadia Property from
2007 through 2010, and maintained homeowners insurance on the
3

Plaintiff names “Bank of America Home Loans” and “Bank of America Home Loans
Servicing, LP,” as Defendants. Defendant Bank of America states that these
two entities are actually a single entity, formerly known as BAC Home Loans
Servicing, LP, which “merged with and into Bank of America, N.A.,” on July 1,
2011. (ECF No. 24 at 1 n. 1.) Bank of America, N.A., therefore, “responds
as successor by merger to BAC Home Loans Servicing, LP.” (Id.)

3

Acadia Property.

(ECF No. 22 ¶¶ 26-31.)

Plaintiff’s payment

for her 2010 property taxes, made February 24, 2011, was
returned with a letter stating that Plaintiff’s 2010 property
taxes had already been paid.

(Id. ¶ 30.)

On November 16, 2010, Plaintiff received a Notice of Intent
to Accelerate her loan and foreclose on the Acadia Property.
(Id. ¶ 33; see ECF No. 1-4 at PageID 423.)

On March 8, 2011,

Plaintiff received a Notice of Right to Foreclosure on the
Acadia Property from the trustee, Defendant Nationwide Trustee
Services, Inc. (“Defendant Trustee”).
No. 1-4 at PageID 424.)

(ECF No. 22 ¶ 34; see ECF

Plaintiff had made all mortgage

payments in full from November 27, 2006, until the property was
foreclosed in 2011, including a payment made to Defendant on
March 2, 2011.

(ECF No. 22 ¶¶ 32, 34.)

Defendant continued to

accept mortgage payments from Plaintiff throughout the
foreclosure process.

(Id. ¶ 38.)

B. Procedural Background
Plaintiff filed a Complaint against Defendants Bank of
America Home Loans, Bank of America Loans Servicing, LP, and
Nationwide Trustee Services, Inc., in the Chancery Court of
Shelby County, Tennessee (“State Court”), on October 19, 2011,
alleging violations of state law.
PageID 10.)

(See ECF No. 1-2 at

Defendant filed a Motion to Dismiss in State Court

on December 7, 2011.

(See id. at PageID 25.)

On April 2, 2012,

Plaintiff filed an Amended Complaint (see ECF No. 1-3 at
4

PageID 303), and on April 17, 2012, Plaintiff filed a Revised
Amended Complaint (see ECF No. 1-4 at PageID 385), which
included a federal-law claim against Defendants (see id. at
PageID 392-94, ¶ 33-35, 41, 42, 44).
On May 2, 2012, Defendant removed the instant action to the
District Court for the Western District of Tennessee based on
Plaintiff’s federal-law claim, pursuant to 28 U.S.C. § 1331 and
§ 1441(a).

(See ECF No. 1 at ¶¶ 10-13.)

On May 9, 2012, Bank

of America filed a Motion to Dismiss for failure to state a
claim upon which relief can be granted.

(ECF No. 4.)

On

December 5, 2012, with leave of Court (see ECF No. 21),
Plaintiff filed her Second Amended Complaint4 (ECF No. 22).

The

Court then denied as moot Bank of America’s Motion to Dismiss on
December 7, 2012.

(ECF No. 23.)

On December 19, 2012, Bank of America filed the Motion to
Dismiss presently before the Court.

(ECF No. 24.)

The deadline

for Plaintiff to file a response passed without Plaintiff filing
a response.

(See ECF No. 25.)

On January 28, 2013, the Court

ordered Plaintiff to show cause why Bank of America’s Motion to
Dismiss should not be granted.

(Id.)

Plaintiff filed a

Response to the Court’s Order to Show Cause on February 13,

4

An amended complaint supersedes the previously submitted complaint. See
Glass v. The Kellogg Co., 252 F.R.D. 367 (W.D. Mich. 2008); see also B & H
Med., LLC v. ABP Admin., Inc., 526 F.3d 257, 267 n.8 (6th Cir. 2008).
Plaintiff does not assert any federal claims in her Second Amended Complaint.
Therefore, those claims have been abandoned. The Court, however, retains
jurisdiction over this case. See Packard v. Farmers Ins. Co. of Columbus
Inc., 423 F. App’x 580, 583-84 (6th Cir. 2011).

5

2013, stating that counsel for Bank of America had agreed to
extend the time for Plaintiff to respond for a period of thirty
days, and containing assertions in opposition to Bank of
America’s Motion to Dismiss.

(ECF No. 26.)

The Plaintiff did

not file another response to Bank of America’s Motion to
Dismiss.
II. STANDARD OF REVIEW
A federal court sitting in diversity applies “state
substantive law and federal procedural law.”

Degussa

Admixtures, Inc. v. Burnett, 277 F. App’x 530, 532 (6th Cir.
2008) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78
(1938)).

Pursuant to Federal Rule of Civil Procedure 12(b)(6),

a defendant may move to dismiss the plaintiff’s complaint for
“failure to state a claim upon which relief can be granted.”
Federal Rule of Civil Procedure Rule 8(a) states that a
pleading, in order to state a claim for relief, must contain “a
short and plain statement of the claims showing that the pleader
is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

Under

Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp.
v. Twombly, 440 U.S. 544 (2007), a “civil complaint only
survives a motion to dismiss if it ‘contain[s] sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.’”

Courie v. Alcoa Wheel & Forged

Prods., 577 F.3d 625, 629-30 (6th Cir. 2009) (alteration in
original) (quoting Iqbal, 556 U.S. at 678).
6

The court “may not dismiss a complaint for failure to state
a claim based on disbelief of the complaint’s factual
allegations.”

Allstate Ins. Co. v. LG&E Energy, LLC, 201 F.

App’x 311, 315 (6th Cir. 2006).

The court must instead

“construe the complaint in the light most favorable to the
plaintiff, accept all its allegations as true, and draw all
reasonable inferences in favor of the plaintiff.”

In re Travel

Agent Comm’n Antitrust Litig., 583 F.3d 896, 902-03 (6th Cir.
2009) (citation omitted) (internal quotation marks omitted).
The court, however, “need not accept as true legal conclusions
or unwarranted factual inferences and conclusory allegations or
legal conclusions masquerading as factual allegations will not
suffice.”

Id. at 903 (citations omitted) (internal quotation

marks omitted).
In considering a motion to dismiss pursuant to Rule
12(b)(6), “a court may consider only matters properly a part of
the complaint or pleadings.”
336, 343 (6th Cir. 2001).

Armengau v. Cline, 7 Fed. App’x

The Sixth Circuit takes a “liberal

view of what matters fall within the pleadings.”

Id. at 344.

“[M]atters of public record, orders, items appearing in the
record of the case, . . . exhibits attached to the complaint
. . . [and] documents that a defendant attaches to a motion to
dismiss” may also be considered “if referred to in the
plaintiff’s complaint and [] central to her claim.”

Gardner v.

United States, 443 F. App’x 70, 73 (6th Cir. 2011) (quoting
7

Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001))
(internal quotation marks omitted).
III. ANALYSIS
Defendant asserts that Plaintiff failed to state a claim in
her Second Amended Complaint upon which relief can be granted
pursuant to Federal Rules of Civil Procedure 8(a) and 12(b)(6).
(See ECF No. 24 at 1.)

Plaintiff raises the following claims in

her Second Amended Complaint:

(1) Defendant breached the Deed

of Trust (ECF No. 22 ¶¶ 42-49); (2) Defendant induced Plaintiff
to breach the Deed of Trust in violation of Tennessee Code
Annotated § 47-5-109 (id. ¶¶ 50-58); (3) Defendant wrongfully
foreclosed on Plaintiff’s property (id. ¶¶ 39-41); and (4) the
Trustee’s sale of the Acadia Property should be set aside (id.
¶¶ 59-64).

Plaintiff’s claims are addressed in turn.

A. Breach of Contract
In order to establish a breach-of-contract claim under
Tennessee law, a plaintiff must prove “(1) the existence of a
contract, (2) breach of the contract, and (3) damages [that]
flow from the breach.”

Hinton v. Wachovia Bank of Del. Nat.

Ass'n, 189 F. App’x 394, 398 (6th Cir. 2006) (alteration in
original) (quoting Life Care Ctrs. of Am., Inc. v. Charles Town
Assocs. Ltd., 79 F.3d 496, 514 (6th Cir. 1996)) (internal
quotation marks omitted).
Defendant does not dispute the existence of a valid
contract but argues that Plaintiff has failed to properly plead
8

that Defendant breached that contract and that Defendant’s
alleged breach caused Plaintiff’s damages.
8.)

(See ECF No. 24-1 at

The sufficiency of Plaintiff’s pleadings related to the

alleged breach of the Deed of Trust, and damages flowing from
that breach, are addressed in turn.
1. Breach of the Deed of Trust
Defendant asserts that under the Deed of Trust, it had the
right to “revoke the waiver as to any or all Escrow Items at any
time” with or without a reason.

(Id. at 9 (quoting Deed of

Trust, ECF No. 24-3, at 4) (internal quotation marks omitted).)
Defendant admits that Section 3 of the Deed of Trust requires
Defendant to provide written notice pursuant to Section 15
before revocation of waiver of escrow and establishment of an
escrow account.

(Id.)

Defendant, however, asserts that it was

not required to give Plaintiff notice pursuant to Sections 3 and
15 because Plaintiff “consented to an escrow account being
established, thus waiving her right to notice.”
“Waiver is an affirmative defense.”

(Id. at 7.)

Madden Phillips

Constr., Inc. v. GGAT Dev. Corp., 315 S.W.3d 800, 813 (Tenn. Ct.
App. 2009) (citing Tenn. R. Civ. P. 8.03).

A defendant

asserting an affirmative defense as a bar to relief on a claim
asserted by a plaintiff can only succeed where the facts
“conclusively establish [the] affirmative defense as a matter of
law.”

Hensley Mfg., Inc. v. ProPride, Inc., 579 F.3d 603, 613

(6th Cir. 2009).

Under those circumstances, “there is no reason
9

[for a court] not to grant a motion to dismiss.”

Id.; see Reid

v. Baker, No. 11-5473, 2012 WL 3893122, at *4 (6th Cir. Sept. 7,
2012); see also Jackson v. Smith, 387 S.W.3d 486, 491-92 (Tenn.
2012).
“In general, the doctrine of waiver is an excuse for
‘nonperformance of contractual duties or conditions.’”
GuestHouse Int’l, LLC v. Shoney’s N. Am. Corp., 330 S.W.3d 166,
201 (Tenn. Ct. App. 2010) (quoting 13 Richard A. Lord, Williston
on Contracts § 39:15 (4th ed. 2009)) (internal quotation marks
omitted).

The doctrine of waiver “applies primarily to

conditions which may be thought of as procedural or technical.”
Id. (quoting Restatement (Second) of Contracts § 84 cmt. d
(1981)).

Waiver by a party “may be proven by express

declaration . . . or by a course of acts and conduct.”

Gaston

v. Tenn. Farmers Mut. Ins. Co., 120 S.W.3d 815, 819 (Tenn. 2003)
(internal quotation marks omitted).
In this case, Defendant asserts that Plaintiff’s conduct
manifested consent to the creation of the escrow account, which
amounted to a waiver of her right to written notice of the
creation of an escrow account.

(Id. at 9-10.)

In support of

this assertion, Defendant points to the following facts
contained in Plaintiff’s Second Amended Complaint:

Plaintiff

enlisted the help of NACA, which requested an escrow account be
created for Plaintiff consistent with its guidelines (see ECF
No. 22 ¶ 22); Plaintiff acknowledges that she was penalized for
10

failing to pay the requisite fees into the escrow account (see
id. ¶ 25); and Plaintiff’s 2010 property-tax payment was
returned because the property taxes had already been satisfied
(see id. ¶ 30).

(ECF No. 24-1 at 8.)

Assuming for the purposes of this Order that Defendant’s
premise that Plaintiff’s consent to the creation of an escrow
account pursuant to NACA’s guidelines is equivalent to waiver of
her right to notice of the creation of that escrow account under
the Deed of Trust, the Court finds that the facts pointed to by
Defendant do not conclusively establish that Plaintiff consented
to the creation of the escrow account.
First, while Plaintiff states in her Second Amended
Complaint that she sought assistance from NACA in pursuing a
loan modification with Bank of America, Plaintiff does not state
that she authorized, or specifically requested, that NACA have
Bank of America set up an escrow account on her behalf.
ECF No. 22.)

(See

Further, Plaintiff asserts that Bank of that Bank

of America never responded to NACA’s inquiries; that failure to
respond could have led her reasonably to believe that the
account was not going to be established.
23.)

(See ECF No. 22 ¶¶ 20-

Accepting Plaintiff’s allegations as true, and construing

the facts in the light most favorable to Plaintiff, Defendant
has not “conclusively established” that Plaintiff consented to
the creation of an escrow account, thus waiving her right to
notice of the creation of that account.
11

Additionally, the other facts to which Defendant points do
not conclusively establish “consent” to the creation of an
escrow account.

The fact that Plaintiff acknowledges that she

was later penalized for failing to pay the appropriate fees into
the escrow account does not lead to the conclusion that she
consented to the creation of the account.

Instead, it suggests

that, at some point, Plaintiff became aware of the existence of
the account.

There is nothing in Plaintiff’s Second Amended

Complaint that states when Plaintiff became aware of the
penalties.

Similarly, the fact that Plaintiff’s property-tax

payment was returned does not conclusively establish that
Plaintiff consented to the creation of the escrow account,
particularly in light of the fact that the return of the
property tax payment occurred after the creation of the escrow
account and after the acceleration of the loan.
Because Defendant has not established that Plaintiff waived
her right to notice by consenting to the creation of an escrow
account, and because Plaintiff asserts in her Second Amended
Complaint that she did not receive notice, the Court finds that
Plaintiff has sufficiently pled a breach of the Deed of Trust
instrument.
2. Damages
Defendant asserts that Plaintiff has not properly alleged
damages as a result of the alleged breach of the Deed of Trust.
(See ECF No. 24-1 at 8, 11.)

Defendant’s assertion, however,
12

depends on its argument that Plaintiff waived her right to
notice under the Deed of Trust.

Plaintiff asserts that

Defendant’s breach of the Deed of Trust’s notice provision was
the proximate cause of the foreclosure of the Acadia Property.
(ECF No. 22 ¶¶ 46-49.)
Having already determined that Plaintiff has sufficiently
pled a breach of the Deed of Trust, the Court finds that
Plaintiff has put forth sufficient facts to state a claim for
damages resulting from the alleged breach of the Deed of Trust.
In summary, Plaintiff has put forth sufficient facts to
raise a breach-of-contract claim under Tennessee law.
Defendant’s Motion to Dismiss is DENIED as to this claim.
B. Wrongful Foreclosure
Defendant asserts that Plaintiff has not alleged facts
sufficient to raise a plausible wrongful-foreclosure claim.
(See ECF No. 24-1 at 8.)

While there are no specific elements

for wrongful foreclosure, Tennessee courts generally examine
whether contractual or statutory requirements were met in the
foreclosure of the property in question.

See Hutchens v. Bank

of Am. N.A., No. 3:11-CV-624, 2012 WL 1618316, at *9-10 (E.D.
Tenn. May 9, 2012); Lee v. EquiFirst Corp., No. 3:10-cv-809,
2010 WL 4320714, at *10 (M.D. Tenn. Oct. 26, 2010).
Plaintiff does not allege that Defendant violated any
statutory requirements related to foreclosure of the Acadia
Property.

(See ECF No. 22.)

Plaintiff does, however, assert
13

that the foreclosure was based on Defendant’s wrongful failure
to provide notice that it had created an escrow account.
¶ 40.)

(Id.

Defendant’s wrongful act then led to the acceleration

and eventual foreclosure of the Acadia Property.

(Id.)

Having

already determined that Plaintiff’s breach-of-contract claim has
been sufficiently pled, the Court finds that Plaintiff has
sufficiently pled a claim for wrongful foreclosure.
Defendant’s Motion to Dismiss is DENIED as to Plaintiff’s
wrongful-foreclosure claim.
C. Inducing a Breach of Contract
Defendant asserts that Plaintiff cannot state a claim
against Defendant upon which relief can be granted for inducing
a breach of contract.

In support of this assertion, Defendant

argues that this cause of action applies only to third parties,
and does not apply to parties to the contract.

(ECF No. 24-1 at

12-13.)
Under Tennessee law, “a party to a contract cannot be
liable for tortious interference with that contract.”

Cambio

Health Solutions, LLC v. Reardon, 213 S.W.3d 785, 789 (Tenn.
2006); see also Purisch v. Tenn. Technological Univ., 76 F.3d
1414, 1420 (6th Cir. 1996) (“A party to a contract cannot be
held liable for procuring the breach of that contract.”).
Plaintiff asserts that Defendant induced Plaintiff to
breach the contract, in violation of Tennessee Code Annotated
Section 47-50-109.

(See ECF No. 22 ¶¶ 50-58.)
14

Defendant,

however, is a party to the contract that Plaintiff alleges
Defendant induced her to breach.

As a result, Plaintiff cannot

hold Defendant liable for inducing a breach of the contract.
The Court finds that Plaintiff has failed to state a claim upon
which relief can be granted as a matter of law.
Defendant’s Motion to Dismiss is GRANTED as to Plaintiff’s
claim for inducing a breach of contract.
D. Setting Aside Trustee Sale
Defendant asserts the foreclosure was completed in
compliance with the Deed of Trust.

(See ECF No. 24-1 at 13.)

As a result, there was no irregularity, misconduct, fraud, or
unfairness to Plaintiff that would allow a court to set aside
the foreclosure sale.

(Id. at 14.)

In Tennessee, foreclosure sales are not set aside lightly.
Young v. Bank One, N.A., No. M2003-01359-COA-R3-CV, 2004 WL
2098284, *1 (Tenn Ct. App. Sept. 20, 2004).

“The same reasons

which allow a court to enjoin the enforcement of a mortgage
should also be applicable in a situation where the court is
asked to set aside a foreclosure.”
S.W.2d 413, 415 (Tenn. 1969).

Held v. Tenn. Title Co., 448

These grounds include

(1) when [the mortgage] was obtained on fraud; (2)
when there has been a total failure of consideration;
(3) when the complainant is not bound, by reason of
some accident, or mistake, in its execution, against
which Equity will relieve; (4) when the debt secured
by the instrument has been fully paid; or (5) is
barred by the statute of limitations.

15

Id. (citation omitted) (internal quotation marks omitted).

If

one of these grounds is not present, there must be “fraud[] or
unfairness on the part of the trustee or the mortgagee that
caused or contributed to an inadequate price, for a court of
equity to set aside the sale.”

Holt v. Citizens Cent. Bank, 688

S.W.2d 414, 416 (Tenn. 1984) (emphasis added).
Plaintiff asserts that she was not behind on her mortgage,
property-taxes, or homeowner-insurance payments and that
Defendant was still accepting payments from Plaintiff.
No. 22 ¶¶ 60, 62.)

(See ECF

Plaintiff further asserts that the Defendant

Trustee knew, or had reason to know, that Bank of America
continued to accept payments from Plaintiff and that Plaintiff
should not have been subject to foreclosure.

(Id. ¶¶ 61-62.)

Plaintiff states that, as a result, Plaintiff’s foreclosure “was
done with irregularity and unfairness on the part of the trustee
and the mortgagee.”

(Id. ¶ 63.)

In Paragraph 63, Plaintiff recites the language contained
in Holt for setting aside a foreclosure sale.

(Id.)

Plaintiff,

however, has not put forth any facts suggesting that the price
received for the Acadia Property was in any way inadequate.

As

a result, Plaintiff has not raised a plausible ground to set
aside the foreclosure sale under Holt.
Plaintiff has, nevertheless, set forth facts sufficient to
raise a claim for wrongful foreclosure, see supra pp. 13-14, and
incorporates this claim into her request to set aside the
16

foreclosure sale.

(See ECF No. 22 ¶ 59.)

It appears to the

Court that, under Held, wrongful foreclosure constitutes a
ground to set aside a foreclosure sale.

See Lebs P’ship, Ltd.

V. Nw. Mut. Life Ins. Co., No. 965, 1992 WL 25001, at *4 (Tenn.
Ct. App. Feb. 14, 1992) (citing Held, 448 S.W.2d at 415).

The

Court finds that, because Plaintiff has sufficiently pled a
claim for wrongful foreclosure, Plaintiff has further raised a
plausible ground to set aside the foreclosure sale.
Defendant’s Motion to Dismiss is DENIED as to Plaintiff’s
request for the Court to set aside the foreclosure sale.
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss is
GRANTED IN PART as to Plaintiff’s claim for inducing a breach of
contract; and DENIED IN PART as to Plaintiff’s other claims.
SO ORDERED this 9th day of April, 2013.

s/ Jon P. McCalla
JON P. McCALLA
CHIEF U.S. DISTRICT JUDGE

17