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Klonga v. Citimortgage, Inc.

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

January 16, 2015

JOHN KLONGA, Plaintiff,
v.
CITIMORTGAGE, INC., Defendant.

OPINION AND ORDER

WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Defendant CitiMortgage, Inc.'s ("Defendant") Motion to Dismiss [3] Plaintiff John Klonga's ("Plaintiff" or "Klonga") Complaint.

I. BACKGROUND

On February 5, 2008, Plaintiff obtained a loan from HSBC Mortgage Corporation ("HSBC") in the amount of $348, 000.00. (Compl. ¶¶ 6-7 & Ex. A). Repayment of the loan was secured by a deed ("Security Deed") to real property located at 3510 Estates Landing Drive, Kennesaw, Georgia (the "Property"). (Id. ¶ 7 & Ex. A). Plaintiff executed the Security Deed in favor of Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for HSBC and HSBC's successors and assigns. (Id. ¶ 7 & Ex. A).

On May 8, 2012, MERS, as nominee for HSBC, assigned its interest in the Security Deed to CitiMortgage. (Id. ¶ 8 & Ex. B).

In 2013, Plaintiff "fell behind on his [mortgage] payments." (Id. ¶ 9).

On July 30, 2013, CitiMortgage sent to Plaintiff a Notice of Foreclosure Sale (the "Notice"), which states that the Property will be sold at a foreclosure sale on September 3, 2013. (Id. ¶ 10 & Ex. C). The Notice provides that CitiMortgage "holds [Plaintiff's promissory n]ote and is the current assignee of the Security Deed, and services the loan on behalf of Federal National Mortgage Association, the current owner of [Plaintiff's] loan." (Notice at 1). The Notice also states that CitiMortgage "has the full authority to answer any questions and the full authority to negotiate, amend or modify the terms of [Plaintiff's] mortgage loan on behalf of and pursuant to the guidelines of Federal National Mortgage Association...." (Id. at 2).[1]

On September 3, 2013, CitiMortgage conducted a foreclosure sale of the Property. (Compl. ¶ 12).

On February 3, 2014, Plaintiff filed his Complaint in the Superior Court of Cobb County, Georgia, [2] asserting claims for wrongful foreclosure (Count I), violation of Due Process (Count II), and attorney's fees and costs (Count III). Plaintiff asserts that, "[a]s Fannie Mae owned the loan, CitiMortgage did not have full authority to modify, amend, or negotiate the terms of [his] loan, " and thus the foreclosure sale was wrongful because "[t]he failure to identity [sic] and provide a contact number and address for Fannie Mae - the owner with full authority over [his] loan - renders the Notice materially deficient under Georgia law." (Compl. ¶¶ 20-21). Plaintiff seeks "reinstatement of title" or compensatory damages.

On March 12, 2014, Defendant removed the Cobb County Action to this Court based on federal question and diversity of citizenship jurisdiction [1].

On March 17, 2014, Defendant moved to dismiss Plaintiff's Complaint for failure to state a claim.

II. DISCUSSION

A. Legal Standard

Dismissal of a complaint, pursuant to Rule 12(b)(6), is appropriate "when, 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). In considering a motion to dismiss, the Court accepts the plaintiff's allegations as true and considers the allegations in the complaint in the light most favorable to the plaintiff. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007); see also Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir. 1999). The Court is not required to accept a plaintiff's legal conclusions as true. See Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)), abrogated on other grounds by Mohamad v. Palestinian Auth., ___ U.S. ___, 132 S.Ct. 1702 (2012). The Court also will not "accept as true a ...


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