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Mayhew v. Branch Banking & Trust Co.

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

December 1, 2014

CONNIE D. MAYHEW and RONALD F. MAYHEW, Plaintiff,
v.
BRANCH BANKING AND TRUST CO., Defendant

Ronald F. Mayhew, Plaintiff, Pro se, Gainesville, GA.

Connie D. Mayhew, Plaintiff, Pro se, Gainesville, GA.

For Branch Banking and Trust Co., Defendant: Henry C. Tharpe, Jr., Richard Wyatt Andrews, Sponcler and Tharpe, Dalton, GA.

ORDER

RICHARD W. STORY, United States District Judge.

This case is before the Court for consideration of the Report and Recommendation [15] of Magistrate Judge J. Clay Fuller. Plaintiffs have filed Responses and Objections [17, 18, and 19] to the Report and Recommendation After reviewing the Report and Recommendation and Plaintiffs' Responses/Objections, the Report and Recommendation is received with approval and adopted as the Opinion and Order of this Court.

In the Report and Recommendation, Judge Fuller concluded that Plaintiffs' Complaint should be dismissed with prejudice because it is barred by res judicata . The undersigned agrees with that conclusion. In the Report and Recommendation, Judge Fuller also considered each of the substantive causes of action set out in the Complaint and concluded that each cause of action failed to state a claim for which relief could be granted.

In their Objections, Plaintiffs assert that because Defendant's claim on the note was reduced to judgment, Defendant could no longer proceed with a non-judicial foreclosure under the Security Deed. However, as pointed out by Judge Fuller, this position is contrary to Georgia law. See Reese Developers, Inc. v. First State Bank, 306 Ga.App. 13, 701 S.E.2d 505 (2010). Plaintiffs also assert that Judge Fuller erred when he found that the Fair Debt Collection Practices Act does not apply to a real estate mortgage. Plaintiffs assert that the loan in question was for the purchase of mobile homes which are classified as personal property. Thus, Plaintiffs contend that Defendant was a debt collector under the Act. However, in the Report and Recommendation, Judge Fuller concluded that even if Defendant were a debt collector under the Act, the claim would fail as the statute of limitations has run on any claims under the Act.

Having adopted the findings and conclusions in the Report and Recommendation, it is hereby ORDERED that Defendant's Motion to Dismiss [5] is GRANTED and Plaintiffs' Complaint is DISMISSED.

SO ORDERED.


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