Reconsideration denied December 4, 2014 -- Cert. applied for.
Foreclosure. Gwinnett Superior Court. Before Judge Hutchinson.
Christopher C. McClurg, for appellant.
Burr & Forman, Amanda E. Wilson, for appellee.
McFADDEN, Judge. Andrews, P. J., concurs. Phipps, C. J., concurs in judgment only.
Jerry Jurden appeals from the trial court's dismissal of his complaint against HSBC Mortgage Corporation for failure to state a claim. Because Jurden can prove no set of facts in support of the complaint that would entitle him to relief, we affirm.
1. Failure to state a claim.
Jurden contends that the trial court erred in granting HSBC's motion to dismiss the complaint for failure to state a claim under OCGA § 9-11-12 (b) (6). We disagree.
A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party's favor. In other words, a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.
Austin v. Clark, 294 Ga. 773, 774-775 (755 S.E.2d 796) (2014) (citations and punctuation omitted).
In this case, Jurden filed a pro se complaint against HSBC Mortgage Corporation, setting forth claims of wrongful foreclosure, fraud and unjust enrichment. The claims arise out of HSBC's nonjudicial foreclosure sale of certain real property that secured Janie Bernice Crowe's residential mortgage loan. As alleged in Jurden's complaint, Crowe purchased the tract of real property in December 2006. In January 2007, Jurden purchased a house and moved it onto the property, where he and Crowe lived together. In March 2008, Crowe obtained a $363,750 loan and secured it with the property by signing a security deed in favor of Mortgage Electronic Registration Systems, Inc. (" MERS" ). ...