Malone, III v. U.S. Bank National Association

Filing 7

ORDER granting 3 Motion to Dismiss for Failure to State a Claim. Signed by Judge S. Thomas Anderson on 1/30/13. (Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
OSCAR MALONE, III,

)
)
Plaintiff,
)
)
v.
)
No. 12-3019-STA
)
U.S. BANK NATIONAL ASSOCIATION,)
)
Defendant.
)
______________________________________________________________________________
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
______________________________________________________________________________
Before the Court is Defendant U.S. Bank National Association=s Motion to Dismiss (D.E. #
3) filed on November 27, 2012. Plaintiff Oscar Malone, III‟s response brief was due on or before
December 28, 2012. On January 2, 2013, the Court ordered Plaintiff to file a response by January
10, 2013. To date Plaintiff has failed to respond. For the reasons set forth below, Defendant‟s
Motion is GRANTED.
BACKGROUND
Plaintiff filed his Complaint for Temporary Injunction in Shelby County Chancery Court
on October 24, 2012, and Defendant removed the matter to the United States District Court for the
Western District of Tennessee on November 21, 2012. (Notice of Removal, D.E. # 1). Plaintiff
alleges that he is the owner of a single family residence located at 1769 Meadow Bark Cove in
Cordova, Tennessee. (Compl. ¶ 1.) Plaintiff purchased the home in 2005 for $365,000. (Id. ¶
2.) Defendant conducted a judicial foreclosure of the property on February 3, 2012. (Id. ¶ 3.) On
March 27, 2012, Defendant filed a forcible entry detainer (docket #1549818) in Shelby County
1

General Sessions Court for the purpose of evicting Plaintiff from the property. (Id. ¶ 4.)
Plaintiff alleges that he had not previously entered into or violated a mortgage contract with
Defendant, and as such Defendant had no legal right to foreclose. (Id. ¶ 5.) Moreover, Defendant
had no interest or rights in the property at the time of the foreclosure sale. (Id. ¶ 6.) According to
the Complaint, Defendant used a false “robo-signed” affidavit to execute the improper foreclosure
sale. (Id. ¶ 7.)
Based on these allegations, the Complaint asserts that Defendant violated the foreclosure
requirements of Tenn. Code Ann. § 35-5-101 et seq. (Id. ¶ 8.) The Complaint also claims that
Defendant conducted the foreclosure sale in bad faith by purchasing the property for only
$147,050.00 in violation of the Tennessee Consumer Protection Act (“TCPA”) by. (Id. ¶ 9.)
The Complaint alleges generally that Defendant knowingly and intentionally misrepresented the
fact that it had any rights in the property at the time of the foreclosure and that it had any interest to
be protected. (Id. ¶ 10.) Plaintiff claims that Defendant intentionally and in bad faith failed to
conduct a legitimate judicial sale of the property in an effort to take the property without having to
produce any legitimate basis of ownership or breach of contract. (Id. ¶ 11.) Therefore, Plaintiff
seeks injunctive relief to enjoin Defendant from evicting him from the property and a declaration
voiding the foreclosure sale.
In its Motion to Dismiss, Defendant argues that Plaintiff has failed to state any claim for
violation of the statutory requirements for foreclosure sales or the TCPA. Defendant has attached
to its Rule 12(b)(6) Motion certain exhibits, including documents recorded in the Shelby County
Register of Deeds such as the deed of trust and papers filed in state court proceedings pertaining to
Plaintiff and the subject property. Based on these records, Defendant has asserted the following
2

facts in support of its Motion to Dismiss. Defendant argues that the deed of trust states that WMC
Mortgage Corp. is the lender but also states that the “beneficiary of this Security Instrument is
MERS (solely as nominee for Lender and Lender‟s successors and assigns) and the successors and
assigns of MERS.” (Def.‟s Mot. to Dismiss, ex. 1, Deed of Trust, 3; see also id. at 1). On
September 1, 2009, MERS assigned the deed of trust to “U.S. Bank National Association, as
Trustee for Citigroup Mortgage Loan Trust, Inc. for Asset Backed Pass-Through Certificates
Series 2006-WMC1,” and this assignment was promptly recorded in the Shelby County Register
of Deeds on September 17, 2009. (Def.‟s Mot. to Dismiss, ex. 2, Assignment of Deed of Trust.)
According to Defendant, Plaintiff defaulted on his mortgage, as noted in the trustee‟s deed
recorded in the Shelby County Register of Deeds. (Def.‟s Mot. to Dismiss, ex. 3, Trustee‟s Deed,
¶ 3).
Following Plaintiff‟s default under the terms of the mortgage, Defendant initiated a
non-judicial foreclosure as set out in the trustee‟s deed. (Id.). Defendant, through its foreclosure
counsel Wilson & Associates, sent a “Notice of Right to Foreclose” to Mr. Malone on October 27,
2010. (Id. at ¶ 4). Advertisement of the foreclosure sale was done through publication as
provided in the Deed of Trust and under Tennessee statute. (Id.). The foreclosure sale date was
postponed several times with the foreclosure sale finally occurring on February 3, 2012. (Id.).
Subsequent to the foreclosure sale, Defendant filed a detainer warrant in Shelby County
General Sessions Court on March 27, 2012, to obtain possession of the property. (Def.‟s Mot. to
Dismiss, ex. 4, Detainer Warrant 1549818.) The General Sessions Court conducted a hearing and
granted judgment in favor of Defendant on May 21, 2012, and ordered that a writ of possession be

3

issued. (Id.). Plaintiff appealed that decision to the Shelby County Circuit Court. (Def.‟s Mot.
to Dismiss, ex. 5, Notice of Appeal.) Before the Circuit Court, Defendant served requests for
admissions to Plaintiff on June 21, 2012, to which Plaintiff never responded. (Def.‟s Mot. to
Dismiss, ex. 6, Requests for Admissions filed in CT-002612-12.) The Requests included a
statement that Plaintiff defaulted on his mortgage payments due under the note. (Id. ¶ 3.)
Defendant ultimately filed a motion to dismiss the appeal, arguing that Plaintiff failed to comply
with statutory surety requirements for appeals from General Sessions Court to Circuit Court.
Plaintiff never filed a response to that motion, and the Circuit Court granted it following a hearing
on September 14, 2012. (Def.‟s Mot. to Dismiss, ex. 7, Order Granting U.S. Bank‟s Motion to
Dismiss.) The Circuit Court remanded the case to General Sessions Court with an order for a
Writ of Possession to be issued after 30 days on or after October 15, 2012. (Id.) Rather than
appealing the Circuit Court‟s decision, Plaintiff filed a new unverified complaint in Shelby County
Chancery Court on October 24, 2012, and Defendant removed the Complaint to federal court.
As for the merits of Plaintiff‟s pleadings, Defendant contends that Plaintiff has failed to
state any plausible claim. Defendant argues that Plaintiff‟s allegation that Defendant lacked any
interest in the subject property has no factual support in the Complaint. Furthermore, Defendant
has attached public documents available in the Shelby County Register of Deeds demonstrating
that Defendant was the assignee of Plaintiff‟s deed of trust in 2009. Under the circumstances,
Plaintiff has failed to state any claim premised on the notion that Defendant had no interest in
Plaintiff‟s property. Defendant next argues that Plaintiff‟s allegations that Defendant conducted a
judicial foreclosure sale but also violated Tennessee statutory requirements for non-judicial
foreclosure sales appear to be contradictory. In the alternative, Plaintiff fails to plead any facts to
4

support his claim, to specify which statute Defendant violated, or to allege how Defendant violated
the statute. Defendant also argues that Plaintiff has failed to state a claim for violation of the
TCPA.

According to Defendant, the TCPA does not apply to the conduct of foreclosure

proceedings. Finally, Defendant argues that Plaintiff‟s claim is barred as res judicata. Plaintiff
failed to raise his claims before the Shelby County General Sessions Court or the Circuit Court for
Shelby County. Therefore, dismissal of Plaintiff‟s claims with prejudice is warranted.
STANDARD OF REVIEW
A defendant may move to dismiss a claim “for failure to state a claim upon which relief can
be granted” under Federal Rule of Civil Procedure 12(b)(6). When considering a Rule 12(b)(6)
motion, the Court must treat all of the well-pled allegations of the complaint as true and construe
all of the allegations in the light most favorable to the non-moving party. 1 However, legal
conclusions or unwarranted factual inferences need not be accepted as true.2 “To avoid dismissal
under Rule 12(b)(6), a complaint must contain either direct or inferential allegations with respect
to all material elements of the claim.”3
Under Rule 8 of the Federal Rules of Civil Procedure, a complaint need only contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” 4 Although
this standard does not require “detailed factual allegations,” it does require more than “labels and

1

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Saylor v. Parker Seal Co., 975 F.2d 252,
254 (6th Cir. 1992).
2

Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987).

3

Wittstock v. Mark a Van Sile, Inc., 330 F.3d 899, 902 (6th Cir. 2003).

4

Fed. R. Civ. P. 8(a)(2).
5

conclusions” or “a formulaic recitation of the elements of a cause of action.”5 In order to survive
a motion to dismiss, the plaintiff must allege facts that, if accepted as true, are sufficient “to raise a
right to relief above the speculative level” and to “state a claim to relief that is plausible on its
face.”6 “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”7
ANALYSIS
The Court holds that Plaintiff‟s Complaint has failed to state any claim, making dismissal
pursuant to Rule 12(b)(6) proper. The Court will consider each of the causes of action alleged in
the Complaint in turn.
I. Defendant’s Right to Foreclose
First, Plaintiff has alleged that Defendant has “knowingly and intentionally misrepresented
the fact that it had any rights to the property at the time of foreclosure or that it had any interest to
be protected” based on the allegation that “Plaintiff has not previously entered into or violated any
mortgage contract with the Defendant.”8 Defendant characterizes this claim as a standing issue
and argues that Plaintiff has failed to plead any facts to support the claim. Defendant further
5

Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). See also Reilly v. Vadlamudi, 680 F.3d 617, 622 (6th Cir. 2012) (quoting
Twombly, 550 U.S. at 555).
6

Twombly, 550 U.S. at 555, 570.

7

Iqbal, 556 U.S. at 678.

8

Compl. ¶¶ 10, 5. To the extent that Plaintiff‟s pleadings sound in misrepresentation or
fraud, Plaintiff has failed to plead the cause with the requisite particularity. Power & Tel. Supply
Co., Inc. v. SunTrust Banks, Inc., 447 F.3d 923, 931 (6th Cir. 2006) (holding that under Tennessee
law a claim for intentional misrepresentation is analyzed in the same way as a claim for fraud and
must meet Rule 9(b)‟s particularity requirements).
6

argues that Plaintiff‟s claim is undermined by a publicly recorded assignment in 2009 showing that
MERS assigned the deed of trust to Defendant.

Defendant has produced a copy of the

assignment, which does appear to show that on September 1, 2009, MERS assigned its rights in the
deed of trust to Defendant.9 Defendant has also produced a copy of the trustee‟s deed, which
stated that Plaintiff had defaulted and requested that the successor trustee to sell the property.10
The Court finds that it need not consider these exhibits to resolve Defendant‟s Motion to Dismiss.
The Court holds that Plaintiff has failed to state a claim related to Defendant‟s right to
foreclose. Plaintiff has simply asserted that Defendant had no right to demand the foreclosure on
Plaintiff‟s property. Plaintiff has not pleaded any other information about his mortgage, the deed
of trust, or the promissory note, such as “the basic details of a contract” or “a copy of the note, any
details of the note, or even that entity that was a party to the note.” 11 In the absence of these
minimal fact pleadings, the Court concludes that the Complaint fails to state a plausible claim for
relief.

Therefore, any claim related to Defendant‟s right to demand foreclosure must be

dismissed.
In the alternative, the question of Defendant‟s right to possess the property is now res
judicata because the General Sessions Court previously considered the matter and entered a final
judgment in favor of Defendant. Res judicata, or claim preclusion, is the doctrine by which a
final judgment on the merits in an action precludes a party from bringing a subsequent lawsuit on
9

10

Def.‟s Mot. to Dismiss, ex. 2.
Id., ex. 3.

11

Coe v. Homecomings Fin., LLC, no. 11-6462, 2013 WL 28098, at *1 (6th Cir. Jan. 2,
2013) (holding that complaint omitting these details failed to state a claim challenging mortgage
company‟s right to foreclose).
7

the same claim or raising a new defense to defeat a prior judgment. 12 “The central purpose of
claim preclusion is to prevent the relitigating of issues that were or could have been raised in [a
prior] action.” 13

In order to assert claim preclusion under Tennessee law, a party must

demonstrate that (1) the prior decision was a final decision on the merits, (2) the present action is
between the same parties or their privies as those to the prior action; (3) the claim in a present
action was or should have been litigated in the prior action; and (4) an identity exists between the
prior and present actions.14
The Court holds that all of these elements are met in this case. The Complaint alleges that
Defendant filed a forcible entry detainer on March 27, 2012, in an effort to evict Plaintiff following
the foreclosure sale. 15 The General Sessions Court entered a detainer warrant in favor of
Defendant, thereby giving Defendant the right to possess the property.16 Plaintiff appealed that

12

Mitchell v. Chapman, 343 F.3d 811, 819 (6th Cir. 2003) (citing Montana v. United
States, 440 U.S. 147, 153 (1979)). See also Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d
446, 459 (Tenn. 1995). In Mitchell, the Sixth Circuit noted that “the United States Supreme Court
expressed its preference for the use of the term „claim preclusion,‟ rather than the more
traditionally utilized term „res judicata.‟” Mitchell, 343 F.3d at 819 n.5 (citing Migra v. Warren
City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984)). In Migra, the Supreme Court explained
that “[c]laim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that
never has been litigated, because of a determination that it should have been advanced in an earlier
suit.” Migra, 465 U.S. at 77 n.1.
13

Federated Dep’t Stores, Inc., v. Moitie, 452 U.S. 394, 398 (1981) (quotations omitted).

14

Lien v. Couch, 993 S.W.2d 53, 55-56 (Tenn. Ct. App. 1998); see also Mitchell, 343 F.3d
at 819. Because the Court has jurisdiction in this case by virtue of the parties‟ diversity of
citizenship, the Court must apply the law of the state of Tennessee to determine what preclusive
effect the state court‟s judgment has on the claims before this Court. Buck v. Thomas M. Cooley
Law Sch., 597 F.3d 812, 816 (6th Cir. 2010) (citing Abbott v. Mich., 474 F.3d 324, 330 (6th Cir.
2007).
15

Compl. ¶ 4.
8

decision to Shelby County Circuit Court, 17 and the appeal was later dismissed for Plaintiff‟s
failure to post a bond or surety.18 According to the order of dismissal, the Circuit Court remanded
the case to General Sessions Court for the purpose of issuing a writ of possession on or after
October 15, 2012. 19

It is clear then that by challenging Defendant‟s right to conduct the

foreclosure sale in the Complaint at bar, Plaintiff is essentially appealing the state court‟s judgment
that Defendant had the right to possess the property.20 Because this issue was already litigated to
a final judgment in a previous action between the same parties, the Court concludes that Plaintiff‟s

16

Def.‟s Mot. to Dismiss, ex. 4. Documents that a defendant attaches to a motion to
dismiss are considered part of the pleadings if they are referred to in the plaintiff‟s complaint and
are central to the claims. Weiner v. Klais and Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997) (citing 5
Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1327, at 762 (2d ed.
1990)). Plaintiff‟s Complaint refers to Defendant‟s forcible entry detainer filed in state court and
now seeks an injunction to prevent Defendant from evicting him from the home. As a result, the
Court holds that the detainer action is referred to in the pleadings and is central to Plaintiff‟s claim.
Additionally, the Sixth Circuit has held that it is proper to take judicial notice of a court
order if only to note that it is “a final order for res judicata purposes.” Winget v. JP Morgan Chase
Bank, N.A., 537 F.3d 565, 576 (6th Cir. 2008). Defendant argues that Plaintiff is precluded from
relitigating the issue of whether Defendant had a right to possess the property. Under the
circumstances, the Court can take judicial notice of the detainer warrant and the outcome of the
proceedings before the General Sessions Court, including Plaintiff‟s appeal from the detainer
warrant (ex. 5) and the Circuit Court‟s order of dismissal (ex. 7).
17

Def.‟s Mot. to Dismiss, ex. 5.

18

Id., ex. 7.

19

Id.

20

See Givens v. Homecomings Fin., 278 F. App‟x 607, 608-609 (6th Cir. 2008) (holding
that a mortgagor‟s federal suit was barred as res judicata as well as by the Rooker-Feldman
doctrine where the mortgagor challenged a foreclosure and the mortgagee‟s right to possess the
property after a state court had already entered a judgment in the mortgagee‟s favor).
9

claim here is barred. The Court holds that the claim is subject to dismissal on this alternative basis.
Therefore, Defendant‟s Motion is GRANTED on this claim.
II. Violations of Tenn. Code Ann. § 35-5-101
The Court next holds that the Complaint fails to state any claim for violation of Tenn. Code
Ann. § 35-5-101 et seq., which sets forth the requirements for proper notice of a foreclosure sale in
Tennessee. Plaintiff alleges that “the foreclosure sale was wholly conducted in violation of the
requirements under [Tenn. Code Ann. §] 35-5-101 et seq.”21 However, the Complaint contains
no factual support for Plaintiff‟s conclusory allegation. Plaintiff has alleged nothing to show that
Defendant conducted a foreclosure sale without proper notice in violation of Tenn. Code Ann. §
35-5-101 et seq. Stripped of its bare legal conclusion that Defendant violated the statute, the
Complaint fails to state a plausible claim.

Therefore, Defendant‟s Motion to Dismiss is

GRANTED as to this claim.22

21

Compl. ¶ 8.

22

Even if Plaintiff had pleaded enough facts to state the claim, Plaintiff would not be
entitled to the relief he seeks, the voiding of the foreclosure sale. Tenn. Code Ann. § 35-5-106
states that should a sale proceed without complying with “the provisions of this chapter, the sale
shall not, on that account, be either void or voidable.” Consistent with this code provision, the
long-standing rule in Tennessee is that a trustee‟s failure to comply with statutory foreclosure
requirements “does not render the sale at foreclosure void or even voidable.” Error! Main
Document Only.Federal Nat. Mortg. Ass’n v. Robilio, W2007-01758-COA-R3-CV, 2008 WL
2502114, at *7 (Tenn. Ct. App. June 24, 2008) (citing Doty v. Fed. Land Bank of Louisville, 89
S.W.2d 337 (Tenn. 1936); Williams v. Williams, 156 S.W.2d 363, 369 (Tenn. Ct. App. 1941)).
See also McSwain v. Am. Gen. Fin., Inc., 1994 WL 398819, at *2-3 (Tenn. Ct. App. July 22, 1994).
The Tennessee Court of Appeals has commented that “[i]t is apparent that the legislature did not
want uncertainty concerning land titles to prevail.” McSwain, 1994 WL 398819, at *2
(concluding that Tenn. Code Ann. § 35-5-107 “specifically provide[d] relief for anyone affected
by noncompliance with the foreclosure statutes”). Therefore, to the extent that Plaintiff seeks to
have the foreclosure sale declared void for violations of Tenn. Code Ann. § 35-5-101, the
Complaint fails to state a claim for relief.
10

III. Violations of the TCPA
Finally, the Court holds that the Complaint has failed to state a claim for violation of the
TCPA. The TCPA states that “[u]nfair or deceptive acts or practices affecting the conduct of any
trade or commerce constitute unlawful acts or practices . . . .”23 Among the unfair or deceptive
acts or practices listed in the TCPA is a catch-all provision that makes “engaging in any other act
or practice which is deceptive to the consumer or to any other person” unlawful.24 An “unfair or
deceptive” act or practice is a “material representation, practice or omission likely to mislead a
reasonable consumer.”25
The Court holds that Plaintiff has failed to state a claim for violation of the TCPA. First,
the TCPA does not apply to foreclosure proceedings. The Complaint has alleged that Defendant
violated the TCPA by conducting a foreclosure sale “without consent and in bad faith,”
specifically by purchasing Plaintiff‟s property “for $147,050.00 despite its value of
$365,000.00.”26 Although the TCPA creates a private cause of action for specified unfair or

23

Tenn. Code Ann. § 47-18-104(a).

24

§ 47-18-104(b)(27).

25

Ganzevoort v. Russell, 949 S.W.2d 293, 299 (Tenn. 1997).

26

Compl. ¶ 9. Courts applying the TCPA have held that a plaintiff must plead with
particularity the circumstances of the unfair or deceptive conduct. E.g. Metro. Prop. & Cas. Ins.
Co. v. Bell, No. 04-5965, 2005 WL 1993446, at * 5 (6th Cir. Aug. 17, 2005) (applying Fed. R. Civ.
P. 9(b)); Harvey v. Ford Motor Credit Co., 8 S.W.3d 273, 276 (Tenn. Ct. App. 1999) (applying
Tenn. R. Civ. P. 9.02)). The Court holds that Plaintiff has failed to allege with particularity any
specific facts in support of his TCPA claim, and on this basis alone, the claim must be dismissed.
11

deceptive acts or practices,27 the conduct of mortgage foreclosure proceedings is not one of them.
More importantly, courts applying Tennessee law have consistently held that the TCPA does not
reach the manner in which a lender conducts foreclosure proceedings.28 The Tennessee Supreme
Court rejected the application of the TCPA to consumer repossession in Pursell v. First American
National Bank.29 Although the Pursell court did not extend its ruling to all banking activities in
Tennessee, the Court finds the Pursell rule applicable to foreclosure proceedings. The Pursell
court was presented with the issue of whether the TCPA created a cause of action for deceptive
repossession procedures. In a detailed analysis of the TCPA, the Tennessee Supreme Court held
that repossession was not “trade or commerce” as defined in the Act and so the Act‟s protections
did not cover repossession. The actions of a bank and its agent in carrying out a repossession,
27

§ 47-18-109(a) (“Any person who suffers an ascertainable loss of money or property,
real, personal, or mixed, or any other article, commodity, or thing of value wherever situated, as a
result of the use or employment by another person of an unfair or deceptive act or practice
described in § 47-18-104(b) and declared to be unlawful by this part, may bring an action
individually to recover actual damages.”).
28

Gilliard v. JP Morgan Chase Bank, N.A., No. 3:12-CV-236, 2012 WL 6139922 (E.D.
Tenn. Dec. 11, 2012); Paczko v. Suntrust Mortgages, Inc., M2011-02528-COA-R3CV, 2012 WL
4450896 (Tenn. Ct. App. Sept. 25, 2012); Gilliard v. Recontrust Co., N.A., 1:11-CV-331, 2012
WL 4442525 (E.D. Tenn. Sept. 25, 2012); Peoples v. Bank of America, No. 11-2863, 2012 WL
601777, at *9 (W.D.Tenn. Feb.22, 2012); Vaughter v. BAC Home Loans Servicing, LP, No.
3:11-CV-00776, 2012 WL 162398, at *6 (M.D. Tenn. Jan. 19, 2012); Wright v. Linebarger
Googan Blair & Sampson, LLP, 782 F. Supp. 2d 593, 609-10 (W.D. Tenn. 2011); Flynn v. GMAC
Mortg., LLC, No. 03:11-CV-416, 2011 WL 4708858, at *2 (E.D. Tenn. Oct. 4, 2011); Gibson v.
Mortgage Elec. Registration Sys., Inc., No. 11–2173–STA, 2011 WL 3608538, at *5 (W.D.Tenn.
Aug. 16, 2011); Launius v. Wells Fargo Bank, N.A., No. 03:09-CV-501, 2010 WL 3429666, at
*5-6 (E.D. Tenn. Aug. 27, 2010); Simms v. CIT Group Consumer Fin., No. 08-2655-STA, 2009
WL 973011, at *9 (W.D. Tenn. Apr. 9, 2009); Schmidt v. Natl. City Corp., No. 3:06-CV-209, 2008
WL 5248706, * 8 (E.D. Tenn. Dec. 17, 2008) (holding that held that there was no TCPA cause of
action for the allegedly deceptive conduct of foreclosure proceedings); Hunter v. Washington Mut.
Bank, No. 2:08-cv-069, 2008 WL 4206604, at * 5-6 (E.D. Tenn. Sept. 10, 2008).
29

937 S.W.2d 838 (Tenn. 1996).
12

“even if considered to be unfair or deceptive, did not affect the „advertising, offering for sale, lease
or rental, or distribution of any goods, services, or property, tangible or intangible, real, personal,
or mixed, and other articles, commodities, or things of value wherever situated.‟”30 The Pursell
court warned that the TCPA did “not extend to every action of every business in the State.” 31
Based on this authority, the Court concludes that Plaintiff has failed to state a claim under the
TCPA for the manner in which Defendant conducted the foreclosure. Therefore, Plaintiff‟s
TCPA claim must be dismissed.
In the alternative, the Court holds that Plaintiff has no private right of action under the
TCPA insofar as Plaintiff has alleged a violation of the Act under its catch-all provision at
paragraph (b)(27). The Tennessee Legislature amended this paragraph effective October 1, 2011,
making it a violation to “[e]ngag[e] in any other act or practice which is deceptive to the consumer
or to any other person; provided, however, that enforcement of this subdivision (b)(27) is vested
exclusively in the office of the Attorney General and Reporter and the director of the division.”32
According to the Complaint, Defendant foreclosed on Plaintiff‟s property on February 3, 2012. 33
The Court concludes then that the amendment applies to Plaintiff‟s claim and that Plaintiff has no
private right of action pursuant to paragraph (b)(27) as amended. Plaintiff‟s TCPA claim must be
dismissed for this reason as well. Therefore, Defendant‟s Motion is GRANTED as to this issue.

30

Id. at 841.

31

Id.

32

2011 Pub. Acts, Ch. 510, § 15.

33

Compl. ¶ 3.
13

Having concluded that Plaintiff‟s Complaint fails to state a claim, Defendant‟s Motion is
granted, and Plaintiff‟s suit is dismissed with prejudice.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE
Date: January 30, 2013.

14