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Johnson v. Midfirst Bank

United States District Court, N.D. Georgia, Atlanta Division

September 2, 2014



CLARENCE COOPER, Sr., District Judge.

This matter is before the Court on MidFirst Bank's Motion to Dismiss [Doc. No. 4]. For the reasons that follow, the Court GRANTS the Motion to Dismiss.


Plaintiff Nicholas N. Johnson ("Plaintiff"), who is proceeding in this action pro se, is the owner of property located at 185 Wyndmont Way, Covington, Georgia 30016 (the "Property"). (Compl. ¶ 2.) On or around May 1, 2007, Plaintiff obtained a loan in the amount of $249, 925.00[1] from First Horizon Home Loan Corporation to purchase the Property and executed a promissory note evidencing the same. (Id. ¶ 4, Ex. A.) To secure the promissory note, Plaintiff conveyed the Property to Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for First Horizon Home Loan Corporation by means of a security deed (the "Security Deed"). (Id., Ex. A.) On October 19, 2009, and allegedly unbeknownst to Plaintiff, MERS transferred and assigned the Security Deed to MidFirst Bank via an assignment. (Id. ¶ 5; MidFirst Bank's Mot. to Dismiss, Ex. A.) MidFirst Bank is also the current servicer of Plaintiff's mortgage loan. (Compl. ¶ 5.)

Plaintiff began to experience financial difficulties and subsequently requested that MidFirst Bank, as servicer of the mortgage loan, modify the loan. (Id. ¶¶ 6, 7.) Unable to reach a resolution with MidFirst Bank, Plaintiff alleges he then sent a qualified written request to MidFirst seeking contact information for the secured creditor of the mortgage loan, but MidFirst allegedly never seriously considered the request and ignored the same. (Id. ¶¶ 8, 9.)

Now, according to Plaintiff, MidFirst Bank has been and is acting as the secured creditor of his loan, has falsely and unlawfully called the loan into default, and has begun to proceed with a wrongful attempted foreclosure. (Id. ¶¶ 9, 10, 13, 17.) Plaintiff alleges that MidFirst Bank is "a mere mortgage servicer, " which has no assignment of the security deed, no right to call his loan into default, and no right to initiate foreclosure proceedings under Georgia law. (Id. ¶¶ 13, 14, 15, 17.) Plaintiff further alleges that he has no contractual obligation to pay MidFirst Bank any money, although MidFirst Bank has demanded payment in full. (Id. ¶¶ 17, 18.)

Plaintiff states that Defendant's actions have caused him "much unnecessary harm and damage." (Id. ¶ 12.) Specifically, Plaintiff alleges that he is losing all the money that he put into his property, his credit has been destroyed, he has had to file for bankruptcy, and he must expend additional funds looking for a new place to live. (Id. at p. 7.)

Plaintiff brings causes of action in this lawsuit for wrongful attempted foreclosure, violation of the Real Estate Settlement Procedures Act ("RESPA"), intentional infliction of emotional distress, and punitive damages. MidFirst Bank presently moves the Court pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff's Complaint in its entirety.


A court may grant a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) if the complaint does not "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The complaint need not contain "detailed factual allegations, " but it must "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Twombly , 550 U.S. at 555 (quotation and citation omitted). Something "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action" is required. Id. at 555. Additionally, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal , 556 U.S. at 678 (citation omitted).

"Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown' - that the pleader is entitled to relief.'" Iqbal , 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)) (other citation omitted). Likewise, dismissal is warranted under Rule 12(b)(6) if, assuming the truth of the factual allegations of plaintiff's complaint, there is a dispositive legal issue that precludes relief. Neitzke v. Williams , 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Brown v. Crawford County , 960 F.2d 1002, 1010 (11th Cir. 1992).

In addition to considering the properly-pleaded allegations of the complaint, the court can consider "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd. , 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). Eleventh Circuit law further provides as follows:

[W]here the plaintiff refers to certain documents in the complaint and those documents are central to the plaintiff's claim, then the Court may consider the documents part of the pleadings for purposes of Rule 12(b)(6) dismissal, and the defendant's attaching such documents to the motion to dismiss will not require conversion of the motion into a motion for summary judgment.

Brooks v. Clue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1369 (11th Cir. 1997) (per curiam). The court's "duty to accept the facts in the complaint as true does not require [the court] to ignore specific factual details of the pleading in favor of general or conclusory allegations." Griffin Indus., Inc. v. Irvin , 496 F.3d 1189, 1205-06 (11th Cir. 2007). "Indeed, when the exhibits contradict the ...

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