United States District Court, N.D. Georgia, Atlanta Division
RICHARD W. STORY, District Judge.
This case comes before the Court on Defendant U.S. National Bank Association's Motion to Dismiss . After reviewing the record, the Court enters the following Order.
Plaintiff Jeffrey Wiley initiated this action in Cherokee County Superior Court on January 6, 2014. Plaintiff asks the Court to set aside a foreclosure sale on the grounds of wrongful foreclosure and breach of contract. (Compl., Dkt. [1-1].) Plaintiff purchased real property located at 302 Eagle Crest Court, Cumming, Georgia 30028 ("the Property") on December 10, 2004. (Id. at ¶ 14.) That same day, Plaintiff obtained a mortgage loan from HomeBanc Mortgage Corporation in the principal amount of $359, 250.00. (Security Deed, Dkt. [3-2].) Contemporaneously, Plaintiff executed a Security Deed concerning the Property in favor of HomeBanc to secure repayment of the loan. (Id.) The Security Deed was then recorded in the Cherokee County real property records. (Id.) HomeBanc subsequently assigned the Security Deed to Mortgage Electronic Registration Systems, Inc. ("MERS") on December 6, 2007. (First Assignment, Dkt. [3-3].) In November 2009, MERS assigned all of its rights, title, and interest in the Security Deed to U.S. Bank. (Second Assignment, Dkt. [3-3].) Both Assignments were duly recorded in the Cherokee County real property records. (Def.'s Mot. to Dismiss, Dkt, [3-1] at 4-5.)
In late 2010, U.S. Bank initiated non-judicial foreclosure proceedings resulting in a foreclosure sale on December 7, 2010. (Compl., Dkt.  at ¶ 19.) Before the foreclosure sale, on November 10, 2010, U.S. Bank sent a foreclosure notice addressed to Plaintiff. (Notice of Foreclosure, Dkt. [3-6].) The notice informed Plaintiff when the foreclosure sale would take place if he failed to cure his default. (Id., ) The notice also included contact information of the entity with authority to negotiate, amend, and modify all terms of the mortgage. (Id.)
Claiming wrongful foreclosure and breach of contract, Plaintiff filed the current action in Cherokee County Superior Court on January 6, 2014. (Compl., Dkt. .) Plaintiff stakes his claims on two grounds. First, Plaintiff alleges he did not receive proper notice of the foreclosure, and second, that because Defendant accepted some payments made by Plaintiff toward the debt, he was confused as to the default status of his loan. (Id. at ¶¶ 18, 21.) Defendant removed this action and now moves for dismissal of all claims.
I. Legal Standard - Motion to Dismiss
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief." While this pleading standard does not require "detailed factual allegations, " mere labels and conclusions or "a formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007)). In order to withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id . (quoting Twombly , 550 U.S. at 570). A complaint is plausible on its face when the plaintiff pleads factual content necessary for the court to draw the reasonable inference that the defendant is liable for the conduct alleged. Id.
"At the motion to dismiss stage, all well-pleaded facts are accepted as true, and the reasonable inferences therefrom are construed in the light most favorable to the plaintiff." Bryant v. Avado Brands, Inc. , 187 F.3d 1271, 1273 n.1 (11th Cir. 1999). However, the same does not apply to legal conclusions set forth in the complaint. See Iqbal , 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id . Furthermore, the court does not "accept as true a legal conclusion couched as a factual allegation." Twombly , 550 U.S. at 555.
A. Wrongful Foreclosure
Plaintiff contends Defendant wrongfully foreclosed on his Property. To state a claim for wrongful foreclosure a plaintiff must "establish a legal duty owed to it by the foreclosing party, a breach of that duty, a causal connection between the breach of that duty and the injury it sustained, and damages." Racette v. Bank of Am., N.A. , 733 S.E.2d 457, 462 (Ga.Ct.App. 2012). "Where a foreclosing party breaches his statutory duty to exercise the power of sale fairly and in good faith, the debtor may sue for damages for wrongful foreclosure." Id . (citing Calhoun First Nat. Bank v. Dickens , 443 S.E.2d 837, 838 (Ga. 1994)).
First, Plaintiff claims he did not receive proper notice before the foreclosure sale. (Compl., Dkt. [1-1] ¶ 2.) Plaintiff does not allege any other facts; he only alleges that he did not receive notice and so was given no meaningful opportunity to cure default. (Id. ¶¶ 18, 28.) However, Plaintiff does not allege that Defendants failed to send notice. For their part, ...