CRAWFORD et al.
OCWEN LOAN SERVICING, LLC.
ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.
ELLINGTON, PRESIDING JUDGE.
and Claudine Crawford filed pro se this petition for a
temporary restraining order or preliminary injunction in the
Superior Court of Fulton County against Ocwen Loan Servicing,
LLC, seeking to stop the foreclosure of their home. Ocwen
filed a motion to dismiss the complaint; the Crawfords did
not file any response to the motion. The trial court
determined that the Crawfords' petition was moot and
dismissed the complaint. The Crawfords appeal. For the
reasons explained below, we affirm.
A motion to dismiss for failure to state a claim should not
be sustained 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.
(Citation and punctuation omitted.) Sparra v. Deutsche
Bank Nat. Trust Co., 336 Ga.App. 418, 419-420 (1) (785
S.E.2d 78) (2016).
Crawfords' complaint shows that in March 2007 they
executed a security deed in favor of their lender, Option One
Mortgage Corporation. On October 6, 2015, the Crawfords
received a Notice of Sale Under Power to be conducted on the
first Tuesday in November 2015. The notice and accompanying
letter, which were prepared by the Weissman, Nowack, Curry
& Wilco P.C. law firm and dated October 2, 2015,
indicated that the security deed was last transferred to Well
Fargo Bank, NA, as Trustee for Soundview Home Loan Trust
2007-Opti, Asset-Backed Certificates, Series 2007-Opti. The
notice and letter stated that the entity that had full
authority to modify the terms of the mortgage with the
Crawfords was Ocwen.
to the complaint, Ocwen and Wells Fargo told the Crawfords
"that they were not pursuing the Sale under Power as
this time." In ruling on Ocwen's motion to dismiss,
the trial court determined that the complaint on its face
showed that the event the Crawfords sought to enjoin, the
foreclosure sale noticed for the first Tuesday in November
2015, was not going forward. Noting that the Crawfords had
not amended their petition to add a claim for wrongful
foreclosure, the trial court dismissed the Crawfords'
petition for injunctive relief as moot.
appeal, the Crawfords do not articulate any basis for
concluding that the trial court erred in ruling that their
petition for injunctive relief is moot. They argue instead
that Ocwen lacks a legally cognizable interest in the
property and therefore lacks standing to seek relief from the
trial court. They contend that their action "clearly
support[s] a claim for wrongful foreclosure" because
they have shown that Ocwen is not the holder of the note.
Given that the Crawfords petitioned only for injunctive
relief, however, the issue whether they could support a claim
for wrongful foreclosure against Ocwen, Wells Fargo, or any
other party, was not before the trial court and is not before
this Court. Humphrey v. JP Morgan Chase Bank, N.A.,
337 Ga.App. 331, 333 (1) (b) (787 S.E.2d 303) (2016);
Moore v. Bank of Fitzgerald, 225 Ga.App. 122, 127
(2) (d) (483 S.E.2d 135) (1997).
relief by its nature must be prospective. "If the
thing sought to be enjoined in fact takes place, the grant or
denial of the injunction becomes moot. A case is moot when
its resolution would amount to the determination of an
abstract question not arising upon existing facts or
rights." (Citations and punctuation omitted.) Clark
v. Deal, 298 Ga. 893, 894 (2) (785 S.E.2d 524) (2016).
Thus, when the injunctive relief sought by the plaintiffs is
to stop a foreclosure, the requested injunctive relief can no
longer be granted once the foreclosure sale had taken place,
and the issues raised in the petition are moot. Cotton v.
First Nat. Bank of Gwinnett County, 235 Ga. 511, 512
(220 S.E.2d 132) (1975). See Goodrich v. Bank of America,
N.A., 329 Ga.App. 41, 43 (762 S.E.2d 628) (2014)
if the event sought to be enjoined in fact will not
take place, the grant or denial of an injunction may also
become moot. In Wilmington Trust Co. v. Glynn
County, 265 Ga.App. 704 (595 S.E.2d 562) (2004), for
example, a county planned to auction an airplane to collect
unpaid ad valorem taxes. The trial court determined that the
county had the authority to impose the tax and denied the
taxpayer's petition to enjoin the foreclosure, and the
taxpayer appealed. Id. The taxpayer's appeal
from the denial of the requested injunction became moot,
however, when the taxpayer paid the tax commissioner the
entire amount due, which obviated the need for the
foreclosure sale. Id. Similarly, in this case, the
record showed that, a year after the scheduled foreclosure,
Ocwen was not pursuing a sale under power. Thus, the
injunctive relief the Crawfords requested could no longer be
granted and their petition was therefore moot, as the trial
court correctly determined. Clark v. Deal, 298 Ga.
at 894 (2); Wilmington Trust Co. v. Glynn County,
265 Ga.App. at 704.
Andrews and Rickman, JJ., concur..