United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR., UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant 350 Mortgage Group,
LLC's (“Defendant” or “360
Mortgage”) Motion to Dismiss  (“Motion”)
Plaintiff Darryl Winston's (“Plaintiff” or
“Winston”) Complaint [1.1]. Plaintiff failed to
respond to Defendant's Motion, and it is deemed
unopposed. See LR 7.1B, NDGa. Also before the Court
is Plaintiff's “Ex Parte Verified Petition for
Temporary Restraining Order”  (“Motion for
December 17, 2014, Plaintiff obtained a loan in the amount of
$369, 000 from Defendant. (Compl. at 2). Repayment of the
loan was secured by a deed (“Security Deed”) to
real property located at 1356 Churchill Way, Marietta,
Georgia (the “Property”). (Id.).
Plaintiff executed the Security Deed in favor of Mortgage
Electronic Registration Systems, Inc. (“MERS”),
as nominee for Defendant and Defendant's successors and
assigns. (Id.). Under the terms of the Security
Deed, Plaintiff “grant[ed] and convey[ed] to MERS . . .
and the successors and assigns of MERS with power of sale,
[the Property].” (Security Deed, Cobb County Deed Book
15208, Page 1521-1540, at 2).
2015, Plaintiff “became delinquent in his . . . monthly
mortgage payments” and sought “loss mitigation
assistance.” (Pet. for TRO  at 3).
August 25, 2015, MERS assigned the Security Deed to
Defendant. (Compl. at 3; see also Cobb County Deed
Book 15275, Page 5919).
March 3, 2017, Defendant “advertised the notice of sale
under power of Plaintiff's [P]roperty on April 4, 2017,
as a result of Plaintiff's alleged default on the loan
secured by the [P]roperty.” (Id. at 3).
Plaintiff claims that the “notice did not identify who
was the holder of the Security Deed and identified
[Defendant] as the loan servicer.” (Id.).
Plaintiff asserts that “Defendant continues to hold
itself out as the holder of the note and the security deed
while claiming to be the servicer of the loan. . . .
Defendant cannot show they are a real party of [sic] interest
to foreclose or enforce the negotiable instrument as they are
the servicer.” (Id. at 4).
March 14, 2017, Plaintiff, proceeding pro se, filed
in the Superior Court of Cobb County, Georgia, his Complaint,
asserting claims for fraudulent conversion (Count I),
mortgage servicing fraud (Count II), “declaratory
judgment (credit default swap)” (Count III),
“unfair and/or deceptive business practices”
(Count IV), “fraud and/or attempted fraud” (Count
V), and intentional infliction of emotional distress (Count
March 31, 2017, Plaintiff filed his Motion for TRO, seeking
to enjoin the April 4, 2017, foreclosure sale.
April 3, 2017, Defendant removed the Cobb County Action to
this Court on the basis of diversity of citizenship. (Notice
of Removal ).
August 7, 2017, Defendant moved to dismiss Plaintiff's
Complaint for failure to state a claim. Plaintiff did not
respond to Defendant's Motion, and it is deemed
of a complaint, pursuant to Rule 12(b)(6), is appropriate
“when, on the basis of a dispositive issue of law, no
construction of the factual allegations will support the
cause of action.” Marshall Cnty. Bd. of Educ. v.
Dist., 992 F.2d 1171, 1174 (11th Cir. 1993). In
considering a motion to dismiss, the Court accepts the
plaintiff's allegations as true and considers the
allegations in the complaint in the light most favorable to
the plaintiff. See Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984); Watts v. Fla.
Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007);
see also Bryant v. Avado Brands, Inc., 187 F.3d
1271, 1273 n.1 (11th Cir. 1999). The Court is not required to
accept a plaintiff's legal conclusions as true. See
Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th
Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)), abrogated on other grounds by Mohamad v.
Palestinian Auth., ___ U.S. ___, 132 S.Ct. 1702 (2012).
The Court also will not “accept as true a legal
conclusion couched as a factual allegation.” See
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
The complaint, ultimately, is required to contain
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
state a plausible claim for relief, the plaintiff must plead
factual content that “allows the Court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
“Plausibility” requires more than a “sheer
possibility that a defendant has acted unlawfully, ”
and a complaint that alleges facts that are “merely
consistent with” liability “stops short of the
line between possibility and plausibility of
‘entitlement to relief.'” Id.
(citing Twombly, 550 U.S. at 557); see also
Arthur v. JP Morgan Chase Bank, NA, 569 Fed.Appx. 669,
680 (11th Cir. 2014) (noting that Conley's
“no set of facts” standard has been overruled by
Twombly, and a complaint must contain
“sufficient factual matter, accepted as true, to state
a claim for relief that is plausible on its face.”).
“A complaint is insufficient if it ‘tenders naked
assertions devoid of further factual enhancement.'”
Tropic Ocean Airways, Inc. v. Floyd, 598 Fed.Appx.
608, 609 (11th Cir. 2014) (quoting Iqbal, 556 U.S.
survive a motion to dismiss, plaintiffs must do more than
merely state legal conclusions; they are required to allege
some specific factual bases for those conclusions or face
dismissal of their claims.” Jackson v. BellSouth
Telecomms., 372 F.3d 1250, 1263 (11th Cir. 2004);
see also White v. Bank of America, NA, 697 Fed.Appx.
1015, 1018 (11th Cir. 2014) (“[C]onclusory allegations,
unwarranted deductions of facts or legal conclusions
masquerading as facts will not prevent dismissal.”)
(quoting Oxford Asset Mgmt., Ltd. v. Jaharis, 297
F.3d 1182, 1188 (11th Cir. 2002)).
filed pro se are to be liberally construed and are
“held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citations and internal quotation marks
omitted). Nevertheless, a pro se plaintiff must
comply with the threshold requirements of the Federal Rules
of Civil Procedure. “Even though a pro se
complaint should be construed liberally, a pro se
complaint still must state a claim upon which the Court can
grant relief.” Grigsby v. Thomas, 506
F.Supp.2d 26, 28 (D.D.C. 2007). ...