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Quasebarth v. Green Tree Servicing, LLC

United States District Court, M.D. Georgia, Columbus Division

March 3, 2015

JIM QUASEBARTH, and ROBYN QUASEBARTH, Plaintiffs,
v.
GREEN TREE SERVICING, LLC, Defendant

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[Copyrighted Material Omitted]

Page 1375

For JIM QUASEBARTH, ROBYN QUASEBARTH, Plaintiffs: CHARLES GOWER, LEAD ATTORNEY; CHARLES AUSTIN GOWER, LEAD ATTORNEY, COLUMBUS, GA.

For GREEN TREE SERVICING LLC, Defendant: ALEXANDRIA J REYES, LEAD ATTORNEY, ATLANTA, GA; JOHN C LYNCH, LEAD ATTORNEY, VIRGINIA BEACH, VA; CHAEL E LACY, LEAD ATTORNEY, RICHMOND, VA; ALAN G SNIPES, JAMES C CLARK, JR, COLUMBUS, GA.

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ORDER

CLAY D. LAND, CHIEF UNITED STATES DISTRICT JUDGE.

This action involves an all-too-familiar consequence of the so-called " Great Recession" --the turning of the " American Dream" into a terrible nightmare. A family purchases a home with borrowed money. They encounter difficulty repaying the loan; miscommunication occurs between the borrowers and the lender. And then the once-proud homeowners end up losing their home. Litigation ensues, and the question becomes who, if anyone, is legally responsible for the dashed dream.

In this dispute, Plaintiffs Jim and Robyn Quasebarth sue their mortgage servicer, Defendant Green Tree Servicing, LLC, (" Green Tree" ) for violating Georgia's Racketeer Influenced and Corrupt Organizations (" RICO" ) Act, O.C.G.A. § 16-4-4. The Quasebarths also assert claims for breach of contract, interference with property rights, fraud, intentional infliction of emotional distress, and negligence per se. Presently pending before the Court are Green Tree's motions to transfer venue and to dismiss for failure to state a claim. For the reasons set forth below, the Court denies the motion to transfer venue (ECF No. 7), and grants in part and denies in part the motion to dismiss (ECF No. 8).

APPLICABLE STANDARDS

" For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought . . . ." 28 U.S.C. § 1404(a). " The decision to transfer a case to another district is left to the sound discretion of the trial court." Brown v. Conn. Gen. Life Ins. Co., 934 F.2d 1193, 1197 (11th Cir. 1991). Federal courts traditionally give substantial deference to the plaintiff's choice of forum, and therefore the movant bears the burden of persuading the Court that its proposed forum is more convenient than the current forum. See In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir. 1989) (per curiam) (explaining the traditional burden for § 1404(a) transfer).

" To survive a motion to dismiss" under Federal Rule of Civil Procedure 12(b)(6), " a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The complaint must include sufficient factual allegations " to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. In other words, the factual allegations must " raise a reasonable expectation that discovery will reveal evidence of" the plaintiff's claims. Id. at 556. " Rule 12(b)(6) does not permit dismissal of a well-pleaded complaint simply because 'it strikes a savvy judge that actual proof of those facts is improbable.'" Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 550 U.S. at 556).

FACTUAL BACKGROUND

Mr. and Mrs. Quasebarth allege the following facts in support of their claims. The Court must accept these allegations as true for purposes of the pending motion to dismiss.

The Quasebarths bought a home in Acworth, Georgia in February 2007. Defendant Green Tree was the primary servicer of their mortgage. Over five years later, in the summer of 2012, the Quasebarths fell on hard times and became unable to make their monthly mortgage payment. This dispute arises from the events following their missed payments.

Page 1377

In an attempt to cure the default on their mortgage, the Quasebarths applied for a loan modification with Green Tree. Green Tree promised to let the Quasebarths know if it approved their application. But while their application was still pending, Green Tree informed the Quasebarths that it planned to sell their home at a foreclosure sale on December 4, 2012.

Green Tree proceeded to make a series of misrepresentations to the Quasebarths. The Quasebarths allege that these misrepresentations were intended to defraud them and prevent them from curing the default on their loan. The first misrepresentation came when the Quasebarths asked Green Tree why it was foreclosing on their home given that it was still considering the Quasebarths' application for a loan modification. During this conversation, Green Tree promised to determine the Quasebarths' eligibility for a modification before the date of the scheduled foreclosure, December 4, if the Quasebarths submitted a new application. The Quasebarths agreed. In fact, they allege that a few days later Green Tree again confirmed that it would " definitely notify [the Quasebarths] before December 4, 2012" whether their application was approved. Compl. ¶ 36, ECF No. 1.

A few days later, Green Tree made another misrepresentation: If the Quasebarths submitted an additional application, Green Tree promised to notify them of their eligibility for a modification within thirty days after they submitted the application. Most importantly, Green Tree promised to postpone the foreclosure sale if the Quasebarths had not received word about their eligibility for a modification by the date of the foreclosure sale, December 4, 2012. Relying on this promise, the Quasebarths submitted a second application on November 8, 2012. They believed that they would hear back from Green Tree within thirty days, by December 8, or that Green Tree would postpone the December 4 foreclosure sale. But Green Tree never followed through, and December 4 and 8 came and went without any word from Green Tree. The Quasebarths now allege that Green Tree never intended to notify them of their eligibility for a loan modification, and made these statements only to prevent the Quasebarths from curing their default.

Because Green Tree had not notified the Quasebarths about their eligibility for a loan modification, the Quasebarths believed that Green Tree had postponed the foreclosure sale. To their surprise, on December 6, a Green Tree representative informed the Quasebarths that it had sold their home at a foreclosure sale two days earlier. The Quasebarths then reached out to Green Tree and its legal counsel for clarification, and each time Green Tree made yet another misrepresentation and told the Quasebarths that the December 4 foreclosure sale was final. In fact, Green Tree went so far as to file an ejection proceeding against the Quasebarths. The Quasebarths now allege that Green Tree knew, at the time it made these representations, that the foreclosure sale had not occurred and that the Quasebarths still owned the home.

Relying on Green Tree's misrepresentations, and believing that they no longer owned the home, the Quasebarths executed a contract releasing all their claims against Green Tree related to the home. In exchange, Green Tree gave them $1,050.00 for relocation expenses. That same day, January 6, 2013, the Quasebarths vacated the home.

After vacating the home, the Quasebarths received a letter from Green Tree's legal counsel dated January 29, 2013, demanding that the Quasebarths satisfy the outstanding balance on their mortgage, or it would sell their home at a foreclosure sale on March 5, 2013. The letter was

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confusing to the Quasebarths because they believed Green Tree had already sold their home. The Quasebarths did not realize that Green Tree had not sold the home in December. In fact, the Quasebarths were the rightful owners of the home until March 5, 2013, when the home sold at a foreclosure sale. The Quasebarths allege that they became aware of Green Tree's misrepresentations, at the earliest, on May 23, 2013, when Green Tree filed a deed reflecting the March sale.

On September 11, 2013, after the Quasebarths became aware of the misrepresentations, they sent a letter to the agents of Green Tree and Fannie Mae rescinding their contract and returning the $1,050.00 relocation check. The Quasebarths now sue Green Tree in diversity for violations of Georgia's RICO statute, breach of contract, interference with property rights, fraud, intentional infliction of emotional distress, and negligence per se.

As part of their RICO claim, the Quasebarths allege that Green Tree engaged in similar misrepresentations with two other sets of homeowners around the same time. Their first example is Maxwell and Cynthia Jones in Columbus, Georgia. The Quasebarths allege that Green Tree made a series of fraudulent representations to Mr. and Mrs. Jones that ultimately resulted in Green Tree wrongfully foreclosing on their home. After the foreclosure, Green Tree continued to attempt to collect the balance of the mortgage, a practice prohibited by law. The Quasebarths also allege that Green Tree engaged in similar ...


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