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James v. Bank of America, N.A.

Court of Appeals of Georgia

May 15, 2015

JAMES
v.
BANK OF AMERICA, N.A. et al

Page 813

Wrongful foreclosure, etc. Cobb Superior Court. Before Judge Kell.

Thomas R. Mondelli, for appellant.

McGuire Woods, Andrew G. Phillips, Jarrod S. Mendel, for appellees.

OPINION

Page 814

Ellington, Presiding Judge.

Raymona James filed this action in the Superior Court of Cobb County against Bank of America, N.A. (" BANA" ) and Federal National Mortgage Corporation (" Fannie Mae" ), asserting claims for, among other things, wrongful foreclosure, breach of contract, intentional infliction of emotional distress, and violation of the Fair Business Practices Act (" FBPA" ). After discovery and an unsuccessful mediation, BANA and Fannie Mae filed a joint motion to dismiss the complaint for failure to state a claim upon which relief could be granted. James filed a motion for contempt against Fannie Mae for its conduct during mediation. The trial court granted BANA and Fannie Mae's motion and dismissed James's claims, and denied James's motion for contempt. For the reasons that follow, we reverse the trial court's ruling as to James's claims for wrongful foreclosure and breach of contract, but we affirm in all other respects.

On appeal, BANA and Fannie Mae's motion to dismiss will be treated as a motion for judgment on the pleadings, because it was filed after the pleadings were closed and was predicated on the complaint and the documents incorporated therein. See OCGA § 9-11-12 (c); Haldi v. Piedmont Nephrology Assoc., 283 Ga.App. 321, 321-322 (641 S.E.2d 298) (2007). We construe the complaint and all reasonable inferences in favor of James, and conduct a de novo review of the trial court's ruling. See McCobb v. Clayton County, 309 Ga.App. 217 (710 S.E.2d 207) (2011). The motion " should not be granted unless the averments in the complaint disclose with certainty that [James] would not be entitled to relief under any state of facts which could be proved in support of [her] claim." (Citation and punctuation omitted.) Id.

So construed, the record shows that in March 2012, James filed the instant complaint against BANA and Fannie Mae stemming from the foreclosure of certain real property (the " Property" ) that secured a promissory note executed by James. The nonjudicial foreclosure sale was conducted pursuant to a power of sale contained in Paragraph 22 of the security deed executed by James. That provision required that, prior to a foreclosure, James be provided notice [332 Ga.App. 366] specifying:

(a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to [her], by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by [the security deed] and sale of the Property.

James alleged in her complaint, among other things, that she was not provided notice prior to the conduct of the foreclosure sale.[1] This alleged lack of notice, at least in part, forms the basis of her claims for wrongful foreclosure, breach of contract, intentional infliction of emotional distress, and violation of the FBPA.[2]

The parties attended a mediation but failed to resolve the dispute. Following the mediation, James filed a motion for contempt, asserting that Fannie Mae violated the local court rules by failing to send a representative to the proceeding with the authority to settle the lawsuit.

BANA and Fannie Mae also filed a motion, contending that James failed to state a claim upon which relief could be granted in that she alleged only that she had not received notice, but failed to properly assert that notice had not been sent. The trial court accepted this argument and ...


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