United States District Court, M.D. Georgia, Valdosta Division
DANIEL T. MAPLES, Plaintiff,
BANK OF AMERICA, N.A., and DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE SOUNDVIEW HOME LOAN TRUST 2005-5 ASSET-BACKED CERTICATES, SERIES 2005-4, Defendants.
HUGH LAWSON, Senior District Judge.
Before the Court is Defendants' Motion to Dismiss (Doc. 13) Plaintiff's Amended Complaint (Doc. 12). For the reasons stated below, the motion is granted. The Court had reserved ruling on a portion of Defendants' earlier Motion to Dismiss (Doc. 4) the Complaint as originally pled, allowing the Plaintiff the opportunity to amend his Complaint. This first motion to dismiss is now moot.
I. Motion to Dismiss Standard
To avoid dismissal under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim for 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)). A claim is plausible if its factual allegations allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . The plausibility standard "calls for enough fact to raise a reasonable expectation that discovery will reveal evidence" of the defendant's liability. Twombly, 550 U.S. at 556.
In ruling on a motion to dismiss, the court must accept "all well-pleaded facts... 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, this tenet does not apply to legal conclusions in the complaint. Iqbal, 556 U.S. at 679. "[C]onclusory allegations, unwarranted deductions of fact, or legal conclusions masquerading as facts will not prevent dismissal." Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002). A court must dismiss the complaint if, "on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action." Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993) (citing Executive 100, Inc. v. Martin County, 992 F.2d 1536, 1539 (11th Cir. 1991) and Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed.2d 939 (1946)).
II. Factual Background
On June 29, 2005, Plaintiff Daniel Maples ("Plaintiff") became the owner of a house located at 200 Ashley Street, Berlin, Georgia ("the Property"), which is where he currently resides. Attendant to purchasing the Property, Plaintiff executed a promissory note in favor of America's Wholesale Lender with a principal amount of $82, 000.00 ("the Note"). He also executed a security deed to Mortgage Electronic Registration Systems, Inc. ("MERS"), as the nominee for America's Wholesale Lender, and pledged the Property as collateral. America's Wholesale Lender subsequently transferred and assigned the Note to Bank of America. (Amended Complaint, ¶¶1, 6-10).
"Plaintiff made monthly mortgage payments to" Bank of America until it began returning his payments. (Id. at ¶10). The returned payments caused Plaintiff to go into default on the Note. When Plaintiff went into default, he was eligible to receive assistance under the Home Affordable Modification Program ("HAMP"), which afforded an opportunity for Bank of America to modify the terms of the Note to prevent foreclosure. Plaintiff contacted Bank of America on multiple occasions to see if it would accept his application to modify the terms of his mortgage. It responded by sending him a HAMP application form. Plaintiff completed the form and returned it to Bank of America along with all of the supporting documents that were required for the application. He alleges that his submission of a completed HAMP application created a binding contract with Bank of America in which it agreed to fully process his application in accordance with HAMP's terms. While Bank of America was processing Plaintiff's application, Defendant Deutsche National Bank Trust Company as Trustee for the Certificateholders of the Soundview Home Loan Trust 2005-4 Asset-backed Certificates, Series 2005-4 ("Deutsche") foreclosed on the Property on July 2, 2013. As a result of the foreclosure and subsequent auction, Deutsche became the legal owner of the Property. (Id. at ¶¶10-18, 22).
Plaintiff sued Bank of America and Deutsche (collectively "Defendants") in Georgia state court on November 14, 2013, and they removed the action to this Court on December 30, 2013. (Notice of Removal, Doc. 1). Plaintiff alleges that Defendants are liable for wrongful foreclosure and breach of a contract to modify the Note under HAMP, and he asks for a declaratory judgment, injunctive relief, specific performance of the alleged contract with Bank of America, and attorney fees. (Amended Complaint, ¶¶19-24).
III. Legal Analysis
A. Claims against Deutsche
In addition to joining in Bank of America's arguments for dismissing the Amended Complaint, Deutsche also raises the defenses of insufficient process and insufficient service of process under Federal Rule of Civil Procedure 12(b)(4) and (b)(5). Plaintiff has not provided evidence of having served Deutsche or otherwise addressed its defenses. Therefore, the motion to dismiss the Amended Complaint is granted with regard to the claims against Deutsche. See Federal Rule of Civil Procedure 4(m); Horenkamp v. Van Winkle and Co., 402 F.3d 1129, 1131-32 (11th Cir. 2005) (recognizing district courts' discretion to dismiss an action if a defendant is not served within 120 days); Lawson v. ADT Sec. Servs., Inc., 899 F.Supp.2d 1335, 1337-38 (M.D. Ga. 2012) (granting the defendant's motion for judgment on the pleadings under Rule 12(c) for some claims because the plaintiff's response did not defend them).
B. Wrongful Foreclosure Claim
The wrongful foreclosure claim against Bank of America is also dismissed. "Georgia law requires a plaintiff asserting a claim of wrongful foreclosure to 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." Heritage Creek Dev. Corp. v. Colonial Bank, 268 Ga.App. 369, 371 (2004). Because Plaintiff alleges that Deutsche, not Bank ...