Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Ikomoni v. Bank of America, N.A.

Court of Appeals of Georgia

February 25, 2015

IKOMONI
v.
BANK OF AMERICA, N.A

Wrongful foreclosure, etc. Rockdale Superior Court. Before Judge Irwin.

Judgment reversed.

Mack & Harris, Robert L. Mack, Jr., for appellant.

McGuireWoods, Jarrod S. Mendel, for appellee.

McFADDEN, Judge. Andrews, P. J., and Ray, J., concur.

OPINION

Page 528

McFadden, Judge.

This appeal is from a trial court order granting a motion to dismiss a complaint for failure to state a claim. Because it does not appear with certainty that the plaintiff would be entitled to no relief under any set of facts that could be proven in support of his claims, we reverse.

Page 529

Alexander Ikomoni filed a pro se complaint against Bank of America, N.A., asserting counts for wrongful foreclosure, mental anguish and punitive damages. In support of these counts, he alleged as operative facts that he had acquired interests in two properties by quitclaim deed; that the deeds were recorded; that the bank knew or should have known of his ownership from conversations with him and his repeated calls informing it of his interest; that the bank foreclosed on the properties without giving him any notice of the foreclosure or advertising the foreclosure as required by law; that the price realized at the foreclosure sale was inadequate; and that he has suffered extreme mental anguish as a result of the bank's wanton, reckless, extreme and outrageous conduct.

The bank filed a motion to dismiss the complaint, pursuant to OCGA § 9-11-12 (b) (6), for failure to state a claim upon which relief could be granted. The trial court granted the motion and dismissed the complaint for failure to state a claim. Ikomoni appeals.

A trial court should not grant a motion to dismiss for failure to state a claim upon which relief may be granted 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 [330 Ga.App. 777] 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.

Webb v. Bank of America, 328 Ga.App. 62, 63 (761 S.E.2d 485) (2014) (citation omitted). Moreover, " [a] pro se complaint[, such as Ikomoni's,] is not held to stringent standards of formal pleadings." Johnson v. Jones, 178 Ga.App. 346, 349 (343 S.E.2d 403) (1986) (citations omitted).

In this case, the allegations of the complaint do not disclose with certainty that Ikomoni would not be entitled to relief under any set of provable facts. On the contrary, within the framework of the complaint, he may be able to introduce evidence supporting his allegations, including that the bank acknowledged his ownership of the property, which he used as a dwelling place, so that he was entitled to notice under OCGA § 44-14-162.1 and then-applicable § 44-14-162.3,[1] yet the bank did not notify him of the foreclosure as required by OCGA § 44-14-162.2. Such a state of provable facts could warrant a grant of the relief sought for wrongful foreclosure and the other counts. Webb, 328 Ga.App. at 63. A motion to dismiss addressed to an entire complaint, such as the bank's, should not be granted if the complaint sets forth at least one claim. Walker v. Gowen Stores, 322 Ga.App. 376, 378 (745 S.E.2d 287) (2013).

Ikomoni's purported failure to allege certain elements of the various causes of action set forth in the complaint does not mandate dismissal because

[i]t is no longer necessary for a complaint to set forth all of the elements of a cause of action in order to survive a motion [330 Ga.App. 778] to dismiss for failure to state a claim. If, within the framework of the complaint, evidence may be introduced which will sustain

Page 530

a grant of relief to the plaintiff, the complaint is sufficient. Likewise, the bank's own factual allegations, such as its claim that [Ikomoni was not a debtor as defined in the statute and thus was not entitled to notice], do not require dismissal of the complaint for failure to state a claim. This is factual evidence which may or may not be developed during discovery and can be considered on a subsequent motion for summary judgment. Because it cannot be said with certainty that within the framework of the complaint no evidence could be introduced that would support the claims for relief, the motion to dismiss should have been denied.

Webb, 328 Ga.App. at 64 (citations and punctuation omitted).

Judgment reversed.

Andrews, P. J., and Ray, J., concur.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.