Fraud, etc. Jasper Superior Court. Before Judge Wingfield.
Ronny E. Jones, for appellant.
Stites & Harbison, Ronald J. Stay, Jr., for appellee.
BRANCH, Judge. Barnes, P. J., and Boggs, J., concur.
Following foreclosure on his residential property, Adrian Stewart brought suit against SunTrust Mortgage, Inc., and later amended his verified complaint, asserting
claims of fraudulent misrepresentation, intentional wrongful foreclosure, breach of contract, breach of the duty of good faith and fair dealing, and violation of the Fair Business Practices Act; Stewart sought damages, punitive damages, attorney fees and injunctive relief. SunTrust filed a verified answer and defenses and later moved to dismiss the amended complaint for failure to state a claim upon which relief could be granted. The trial court granted SunTrust's motion, noting that Stewart submitted no evidence to rebut that he never cured the default under the mortgage, and Stewart appeals. For the following reasons, we reverse the dismissal of Stewart's claims for fraud, wrongful foreclosure, breach of contract, breach of the duty of good faith and fair dealing, and related ancillary claims; we affirm the dismissal of his claims for a violation of the Fair Business Practices Act and for injunctive relief.
We review de novo a trial court's determination that a pleading fails to state a claim upon which relief can be granted, " constru[ing] the pleadings in the light most favorable to the plaintiff with any doubts resolved in the plaintiff's favor." Center for a Sustainable Coast v. Ga. Dept. of Natural Resources, 319 Ga.App. 205-206 (734 S.E.2d 206) (2012) (citation omitted). See also Gold Creek SL v. City of Dawsonville, 290 Ga.App. 807, 809 (1) (660 S.E.2d 858) (2008) (pleadings to be construed include exhibits attached to and incorporated into complaint and answer).
So construed, the pleadings show that in January 2008, Stewart signed a promissory note in favor of SunTrust and a security deed in favor of Mortgage Electronic Registration Systems, Inc., as nominee for SunTrust in exchange for a loan from the bank. In August 2012, with the mortgage past due, SunTrust offered " home preservation assistance" to Stewart to avoid foreclosure on the property. Stewart had used these services to obtain a loan modification to prevent [331 Ga.App. 636] foreclosure one year earlier. In the August 2012 negotiations, SunTrust told Stewart that he should work only with the bank and that while his application for home preservation assistance was pending, any foreclosure sale would be postponed. SunTrust asked Stewart to complete a " borrower response package" to apply for the assistance, and Stewart did so on September 6. SunTrust told Stewart that within 30 days of receipt of the package, it would tell him what home preservation options were available and instruct him on the next steps.
During September, October and the beginning of November, however, SunTrust informed Stewart several times that his documentation was incomplete and required him to send the same documents repeatedly. Meanwhile, on October 6, SunTrust placed a foreclosure sale notice in the newspaper showing a sale date of November 6. On the day of the scheduled foreclosure, SunTrust told Stewart that no final decision had been made on his application for home preservation assistance but that it was too late to stop the foreclosure, which occurred that day. SunTrust thereafter successfully ...