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Winston v. 360 Mortgage Group, LLC

United States District Court, N.D. Georgia, Atlanta Division

October 2, 2017

360 MORTGAGE GROUP, LLC, Defendant.



         This matter is before the Court on Defendant 350 Mortgage Group, LLC's (“Defendant” or “360 Mortgage”) Motion to Dismiss [4] (“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” [2] (“Motion for TRO”).

         I. BACKGROUND

         On 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).[1]

         In June 2015, Plaintiff “became delinquent in his . . . monthly mortgage payments” and sought “loss mitigation assistance.” (Pet. for TRO [2] at 3).

         On August 25, 2015, MERS assigned the Security Deed to Defendant. (Compl. at 3; see also Cobb County Deed Book 15275, Page 5919).

         On 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).

         On 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 VI).

         On March 31, 2017, Plaintiff filed his Motion for TRO, seeking to enjoin the April 4, 2017, foreclosure sale.

         On April 3, 2017, Defendant removed the Cobb County Action to this Court on the basis of diversity of citizenship. (Notice of Removal [1]).[2]

         On August 7, 2017, Defendant moved to dismiss Plaintiff's Complaint for failure to state a claim.[3] Plaintiff did not respond to Defendant's Motion, and it is deemed unopposed.


         A. Legal Standard

         Dismissal 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. Marshall Cnty.

         Gas 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 570.

         To 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. at 678).

         “To 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)).

         Complaints 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). ...

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