United States District Court, S.D. Georgia, Augusta Division
JOSEPH MORRALL, JR. Plaintiff,
CITIMORTGAGE, INC.; FREDDIE MAC; PENDERGAST & ASSOCIATES, P.C.; ELLIS, PAINTER, RATTERREE, & ADAMS, LLP, Defendants.
J. RANDAL HALL, District Judge.
This matter is now before the Court on Defendants' separately-filed motions to dismiss. (Docs. 6, 7, 8, 9.) In this action, Plaintiff Joseph Morrall, Jr. charges Defendants with several claims arising from his former ownership of 2311 Perot Drive, Hephzibah, Georgia 30815 ("the Property"), namely wrongful foreclosure, fraud, breach of an oral contract, and violation of the "Georgia Business & Professions Code Section 17200, et seq." Mr. Morrall, whose home Defendant CitiMortgage, Inc. ("Citi") foreclosed upon in December 2013, appears to contend that Citi (1) failed to provide him notice of the initiation of proceedings under the power of sale as required by O.C.G.A. § 44-14-162.2 and (2) failed to exercise fairly and in good faith the power of sale, as Mr. Morrall received assurances, orally and in writing, that the Property would not be foreclosed upon during the period in which Citi considered his loan modification. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Defendant CitiMortgage, Inc.'s Motion to Dismiss (Doc. 6), and GRANTS the motions to dismiss filed by Defendants Freddie Mac (Doc. 7), Pendergast & Associates, P.C. (Doc. 8), and Ellis, Painter, Ratterree & Adams, LLP (Doc. 9).
On March 5, 2004, Mr. Morrall obtained a mortgage loan for $92, 900.00 ("the Loan") from ABN AMRO Mortgage Group, Inc. ("ABN"), secured by the property located at 2311 Perot Drive, Hephzibah, Georgia 30815. (Doc. 6, Ex. A ("Deed"), at 2.) Mr. Morrall also signed and delivered to ABN a Security Deed ("the Deed"), which granted ABN and its successors and assigns power of sale. (Id. at 3.) On August 31, 2007, ABN merged with and into CitiMortgage. (Citi Br., Doc. 6-1, at 2.)
According to Defendants, Mr. Morrall defaulted on the Loan, a fact he does not appear to contest. (Id.) To the extent the Court can discern, Citi commenced non-judicial foreclosure proceedings at various points in 2008, 2009, 2010, 2012, and 2013. At issue here is the latter of these dates. In November and December 2013, Mr. Morrall "had numerous communications with [C]iti[M]ortgage Homeowner Support Specialist Allen Byron" about a potential loan modification. (Doc. 1, Ex. A ("Compl."), at 7.) On November 18, 2013, Mr. Byron "told [Mr. Morrall] that his modification program has been extend [sic] and the new deadline for information return is December 23, 2013 and that it would not foreclose while Plaintiff's loan modification agreement was being considered." (Id.) On December 4 and 5, 2013, Luis Ruiz notified Mr. Morrall "via e-mail/letter that he was working on [his] modification and the review process could take up to 30 days." (Id.) Mr. Morrall then received an eviction notice on December 12, 2013. (Id.) In response, he called Brian S. Goldberg, "the Defendant foreclosure attorney, " and Ellis, Painter, Ratterree & Adams ("EPRA"), "Defendant['s] eviction attorney." (Id.) Mr. Goldberg informed Mr. Morrall that the Property had been sold at a foreclosure sale on December 3, 2013. (Id.)
On February 28, 2014, Mr. Morrall, proceeding pro se, filed suit in the Superior Court of Richmond County, Georgia. He framed his case as a "Wrongful Foreclosure Lawsuit, " and identified eight claims: Negligence; Violation of Business & Professions Code of Georgia; Breach of Contract; Breach of Note; Fraud; Unlawful Eviction; Wrongful Foreclosure; and Breach of the Implied Covenant of Good Faith and Fair Dealing. (Compl. at 3.) Defendants Citi and Freddie Mac timely removed the action to this Court on April 2, 2014. (Doc. 1.) Immediately thereafter, Defendants filed the present motions to dismiss, asserting that Mr. Morrall has failed to meet the requisite pleading standards of Federal Rules of Civil Procedure 8 and 9(b) and otherwise has not stated actionable claims for relief under Rule 12(b)(6).
II. MOTION TO DISMISS STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Although this pleading standard does not require detailed factual allegations, "labels and conclusions" or "formulaic recitation[s] of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Thus, in order to withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 670). That is, the plaintiff is required to plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citation omitted).
Furthermore, when considering a motion to dismiss under Rule 12(b)(6), the Court must test the legal sufficiency of the complaint, not whether the plaintiff will ultimately prevail on the merits. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). "Dismissal of a complaint is appropriate when, on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action.'" Kabir v. Statebridge Co., LLC, No. 1:11-CV-2747-WSD, 2011 WL 4500050, at *2 (N.D.Ga. Sept. 27, 2011) (citing Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993). Here, the court must accept as true all facts alleged in the complaint and construe all reasonable inferences in the light most favorable to the plaintiff. See Hoffman-Pugh v. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002).
Lastly, when plaintiffs act pro se, the pleadings are "held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed." Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). "This leniency, however, does not require or allow courts to rewrite an otherwise deficient pleading in order to sustain an action." Thomas v. Pentagon Fed. Credit Union, 393 F.Appx. 635, 637 (11th Cir. 2010). Indeed, pro se claimants have "no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets." Patterson v. Aiken, 841 F.2d 386, 387 (11th Cir. 1988) (internal quotation marks omitted).
As previously mentioned, Mr. Morrall identified eight claims he intended to pursue on the Complaint's cover sheet: Negligence; Violation of Business & Professions Code of Georgia; Breach of Contract; Breach of Note; Fraud; Unlawful Eviction; Wrongful Foreclosure; and Breach of the Implied Covenant of Good Faith and Fair Dealing. (Compl. at 3.) The body of the Complaint, however, contains only the following sections: General Allegations; Fraud ("Count I"); Unfair Practices ("Count II"); Breach of Oral Contract ("Count III"); Declaratory Relief ("Count IV"); and Prayer for Relief. (Compl. at 4-9.) Accordingly, where Mr. Morrall failed to separately designate a cause of action as a "Count" - like, for example, wrongful foreclosure - the Court heeds its duty to construe liberally the factual allegations to present such a claim.
A. Wrongful Foreclosure
"In Georgia, the essential elements of a wrongful foreclosure claim include the following: (1) a legal duty owed to plaintiff by the foreclosing party, (2) a breach of that duty, (3) a causal connection between the breach and the alleged injury, and (4) damages." Warthen v. Litton Loan Servicing LP, No. 1:11-CV-02704, 2012 WL 4075629, at *3 (N.D.Ga. Mar. 26, 2012)(citing Gregorakos v. Wells Fargo Nat'l Ass'n, 647 S.E.2d 289, 292 (Ga.Ct.App. 2007)). Mr. Morrall appears to assert a claim for wrongful foreclosure based on two separate theories: (1) Citi's alleged failure to provide notice of the initiation of proceedings under the power of sale; and (2) Citi's breach of the implied covenant of good faith and fair dealing in exercising the power of sale. Citi ...